S.I. No. 407/2008 - European Communities (Machinery) Regulations 2008

1. The body, its director and the staff responsible for carrying out the verification tests shall not be the designer, manufacturer, supplier or installer of machines which they inspect, nor the authorised representative of any of these parties. They shall not become involved, either directly or as authorised representatives, in the design, construction, marketing or maintenance of the machines. This does not preclude the possibility of exchanges of technical information between the manufacturer and the body.

2. The body and its staff shall carry out the verification tests with the highest degree of professional integrity and technical competence and shall be free from all pressures and inducements, particularly financial, which might influence their judgement or the results of the inspection, especially from persons or groups of persons with an interest in the result of verifications.

3. For each category of machinery for which it is notified, the body must possess personnel with technical knowledge and sufficient and appropriate experience to perform a conformity assessment. It must have the means necessary to complete the technical and administrative tasks connected with implementation of the checks in an appropriate manner; it must also have access to the equipment necessary for the exceptional checks.

4. The staff responsible for inspection shall have

— sound technical and vocational training,

— satisfactory knowledge of the requirements of the tests they carry out and adequate experience of such tests,

— the ability to draw up the certificates, records and reports required to authenticate the performance of the tests.

5. The impartiality of inspection staff shall be guaranteed. Their remuneration shall not depend on the number of tests carried out or on the results of such tests.

6. The body shall take out liability insurance unless its liability is assumed by the State in accordance with national law, or the Member State itself is directly responsible for the tests.

7. The staff of the body shall be bound to observe professional secrecy with regard to all information obtained in carrying out its tasks (except vis--vis the competent administrative authorities of the State in which its activities are carried out) under this Directive or any provision of national law giving effect to it.

8. Notified bodies shall participate in coordination activities. They shall also take part directly or be represented in European standardisation, or ensure that they know the situation in respect of relevant standards.

9. Member States may take all necessary measures they regard as necessary in order to ensure that, in the event of cessation of the activities of a notified body, the files of its customers are sent to another body or are made available to the Member State which has notified it.

Regulation 3(3)

SCHEDULE 12

Article 1(2) of Directive 2006/42/EC

Equipment excluded from the application of these Regulations

(

a

) safety components intended to be used as spare parts to replace identical components and supplied by the manufacturer of the original machinery;

(

b

) specific equipment for use in fairgrounds and/or amusement parks;

(

c

) machinery specially designed or put into service for nuclear purposes which, in the event of failure, may result in an emission of radioactivity;

(

d

) weapons, including firearms;

(

e

) the following means of transport

— agricultural and forestry tractors for the risks covered by Directive 2003/37/EC, with the exclusion of machinery mounted on these vehicles,

— motor vehicles and their trailers covered by Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (OJ L42, 23.2.1970, p. 1.) as last amended by Commission Directive 2006/28/EC (OJ L 65, 7.3.2006, p. 27), with the exclusion of machinery mounted on these vehicles,

— vehicles covered by Directive 2002/24/EC of the European Parliament and of the Council of 18 March 2002 relating to the type-approval of two or three-wheel motor vehicles (OJ L 124, 9.5.2002, p. 1.) as last amended by Commission Directive 2005/30/EC (OJ L 106, 27.4.2005, p. 17), with the exclusion of machinery mounted on these vehicles,

— motor vehicles exclusively intended for competition, and

— means of transport by air, on water and on rail networks with the exclusion of machinery mounted on these means of transport;

(

f

) seagoing vessels and mobile offshore units and machinery installed on board such vessels and/or units;

(

g

) machinery specially designed and constructed for military or police purposes;

(

h

) machinery specially designed and constructed for research purposes for temporary use in laboratories;

(

i

) mine winding gear;

(

j

) machinery intended to move performers during artistic performances;

(

k

) electrical and electronic products falling within the following areas, insofar as they are covered by Council Directive 73/23/EEC of 19 February 1973 on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits (OJ L 77, 26.3.1973, p. 29.) as amended by Directive 93/68/EEC (OJ L 220, 30.8.1993, p. 1)

— household appliances intended for domestic use,

— audio and video equipment,

— information technology equipment,

— ordinary office machinery,

— low-voltage switchgear and control gear,

— electric motors;

(

l

) the following types of high-voltage electrical equipment

— switch gear and control gear,

— transformers.

GIVEN under my Official Seal,

17 October 2008

MARY COUGHLAN

Minister for Enterprise, Trade and Employment.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations come into effect on 29 December 2009 and implement Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery and amending Directive 95/16/EC of 29 June 1995. In the case of portable cartridge operated fixing and other impact machinery that are in conformity with existing provisions in force at 17 May 2006 the Regulations come into effect on 29 June 2011. Article 24 of this Directive is implemented separately through the European Communities (Lifts) (Amendment) Regulations 2008.

These Regulations provide for the continued harmonisation of the essential health and safety requirements on machinery across the European Union while also promoting the free movement of machinery within the single market.

These Regulations are applicable to additional products such as construction-site hoists, cartridge-operated fixing and other impact machinery. The Regulations also clarify the boundary between the Machinery Directive and the Low Voltage and Lifts Directives.Various machinery excluded from the scope of the Directive are listed in Annex 1(2) to the Directive as set out in Schedule 12 to the Regulations.

These Regulations set down requirements for placing machinery on the market, conformity assessment and CE marking. The Regulations make provisions regarding the organisation of, and access to, technical documentation and also set down a requirement to ensure risk assessment is carried out for machinery. The Regulations also make provision for the appointment and monitoring of Notified Bodies and for the appointment and functions of Competent Authorities responsible for enforcing the Regulations and carrying out market surveillance.

1 OJ No. L157, 9.6.2006, p. 24.

2 OJ No. L204, 21.7.1998, p. 37.

10. Emergency stop devices.

11. Discharging systems to prevent the build-up of potentially dangerous electrostatic charges.

12. Energy limiters and relief devices referred to in sections 1.5.7, 3.4.7 and 4.1.2.6 of Annex I.

13. Systems and devices to reduce the emission of noise and vibrations.

14. Roll-over protective structures (ROPS).

15. Falling-object protective structures (FOPS).

16. Two-hand control devices.

17. Components for machinery designed for lifting and/or lowering persons between different landings and included in the following list

(

a

) devices for locking landing doors;

(

b

) devices to prevent the load-carrying unit from falling or unchecked upwards movement;

(

c

) overspeed limitation devices;

(

d

) energy-accumulating shock absorbers,

— non-linear, or

— with damping of the return movement;

(

e

) energy-dissipating shock absorbers;

(

f

) safety devices fitted to jacks of hydraulic power circuits where these are used as devices to prevent falls;

(

g

) electric safety devices in the form of safety switches containing electronic components.

Regulation 10(

b

)

SCHEDULE 6

Annex VI to Directive 2006/42/EC

Assembly instructions for partly completed machinery.

The assembly instructions for partly completed machinery must contain a description of the conditions which must be met with a view to correct incorporation in the final machinery, so as not to compromise safety and health.

The assembly instructions must be written in an official Community language acceptable to the manufacturer of the machinery in which the partly completed machinery will be assembled, or to his authorised representative.

Regulation 3(1)

SCHEDULE 7

Annex VII to Directive 2006/42/EC

Part A, Technical file for machinery

and

Part B, Relevant technical documentation for partly completed machinery.

A. Technical file for machinery

This part describes the procedure for compiling a technical file. The technical file must demonstrate that the machinery complies with the requirements of this Directive. It must cover the design, manufacture and operation of the machinery to the extent necessary for this assessment. The technical file must be compiled in one or more official Community languages, except for the instructions for the machinery, for which the special provisions of Annex I, section 1.7.4.1 apply.

18. Portable cartridge-operated fixing and other impact machinery.

19. Protective devices designed to detect the presence of persons.

20. Power-operated interlocking movable guards designed to be used as safeguards in machinery referred to in points 9, 10 and 11.

21. Logic units to ensure safety functions.

22. Roll-over protective structures (ROPS).

23. Falling-object protective structures (FOPS).

Regulation 3(1)

SCHEDULE 5

Annex V to Directive 2006/42/EC

Indicative list of the safety components referred to in Article 2(

c

).

24. Where a competent authority establishes that the CE marking has been affixed to a product unduly, it may direct the manufacturer or the authorised representative to ensure that the product concerned conforms with these Regulations, and where non-conformity persists, the competent authority may restrict or prohibit the placing on the market, transport or use of the product in question, or have it withdrawn from the market or from circulation.

Notifications to the Commission in respect of application of Regulations 23 and 24

25. The competent authority concerned shall forthwith notify the Commission of any restriction, prohibition, requirement or direction made, imposed or given by it under Regulation 23 or Regulation 24.

Publication of information on products non-compliant with essential health and safety requirements

26. Subject to Regulation 42, a competent authority may publish information on specific products in relation to failure to satisfy the essential health and safety requirements set out in Annex 1.

Publication of information on action taken regarding non-compliant products

27. Subject to Regulation 42, a competent authority may publish information in respect of action taken by a Member State in respect of non-conformity of products with the requirements of the Directive, particularly where it relates to—

(

a

) failure to satisfy the essential health and safety requirements,

(

b

) incorrect application of the harmonised standards referred to in Article 7(2);

(

c

) shortcomings in the harmonised standards themselves referred to in Article 7(2).

Sharing of information on application of the Directive

28. A competent authority may provide information to any EU information network, the Commission or a competent authority of another Member State for the purpose of sharing information related to the application of the Directive.

Power to require information

29. (1) A competent authority may, for the purpose of obtaining information which it requires for the discharge of functions under these Regulations, by a notice in writing (in these Regulations referred to as “a notice requiring information”) served on any person, require such person to furnish to the competent authority concerned within a period specified in the notice and in such form, if any, as may be specified in the notice, information about any matters to which these Regulations or the Directive relate specified in the notice.

(2) A competent authority shall not serve a notice requiring information unless, having regard to all the circumstances of the particular case, the information is reasonably required in connection with the exercise of functions under these Regulations.

Provision of information in response to a notice requiring information

30. A person shall provide the information requested in a notice requiring information—

(

a

) where no appeal is taken against the notice,

(i) on the expiration of the period during which such an appeal may be taken,

(ii) within the period of time specified in the notice for the purpose of the furnishing of the information, or

(iii) on such subsequent day as the competent authority may agree in writing,

whichever is the later;

(

b

) where an appeal is taken and the notice is confirmed on appeal or the appeal is withdrawn—

(i) on the day following the day on which the notice is so confirmed or the appeal is withdrawn,

(ii) within the period of time specified in the notice for the purpose of the furnishing of the information, or

(iii) in case the operation of the notice has been suspended in accordance with Regulation 32(1), on the expiration of the period that the judge of the District Court considered appropriate for the purpose of that subparagraph,

whichever is the later.

Appeal against a notice requiring information

31. Where a person is aggrieved by a notice requiring information served on him or her, he or she may, within the period of 7 days beginning on the day on which the notice is so served, appeal to a judge of the District Court in the District Court District in which the notice is served against the notice and, in determining the appeal, the judge may—

(

a

) if he or she is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice, with or without modification, or

(

b

) cancel the notice.

Suspension of application of a notice requiring information

32. (1) Where on the hearing of an appeal made under Regulation 31, a notice requiring information is confirmed, the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case he or she considers appropriate.

(2) The judge determining an appeal under Regulation 31 may make such order as to the payment of costs in respect of the appeal as he or she considers appropriate.

Admissibility of certain documents in evidence

33. Where an opinion (whether one to which Regulation 23 relates, or otherwise), finding, statement or determination of a competent authority is contained in a document which—

(

a

) purports to have been made by or at the direction of the competent authority concerned, and

(

b

) is produced in evidence by an officer of the said competent authority in any proceedings,

such document shall be admissible in evidence and shall be evidence of any such opinion, finding, statement or determination in such proceedings without further proof.

PART 5

Authorised Officers

Appointment of authorised officers

34. A competent authority may appoint such and so many persons as it thinks fit to be authorised officers for the purposes of these Regulations and any function conferred on a competent authority by these Regulations may be performed by an authorised officer.

Warrants or certificates of appointment

35. A person appointed under Regulation 34 shall, on his or her appointment, be furnished by the competent authority concerned with a warrant or certificate of his or her appointment, and when exercising a power conferred by these Regulations shall, if requested by any person thereby affected, produce a copy of such warrant or certificate to that person for inspection, together with a form of personal identification.

Powers of authorised officers

36. (1) An authorised officer shall, for the purposes of these Regulations, have power to do any one or more of the following

(

a

) subject to paragraph (4), at any time enter, inspect, examine and search any place;

(

b

) inquire into, search, examine and inspect—

(i) any place referred to in subparagraph (

a

),

(ii) any activity, installation, process, procedure, matter or thing at or in that place, and

(iii) any product or partly completed machinery or any record relating to such product, partly completed machinery or to a component of such product or partly completed machinery,

to ascertain whether these Regulations have been or are being complied with and, for that purpose, take with him or her and use any equipment or materials he or she consider necessary;

(

c

) require that that place and anything at or in it be left undisturbed for so long as is reasonably necessary for the purposes of any search, examination, investigation, inspection or inquiry under these Regulations;

(

d

) require the person in charge to produce to the authorised officer—

(i) any product or partly completed machinery which is in the possession or under the control of such person, and

(ii) any records, and in the case of such information in a non-legible form, to reproduce it in a legible form, and to give to the authorised officer such information as the authorised officer may reasonably require in relation to any entries in those records;

(

e

) inspect and take copies of or extracts from any such records or any electronic information system at that place, including in the case of information in a non-legible form, copies of or extracts from such information in a permanent legible form or require that such copies be provided;

(

f

) require a person at or in that place by whom or on whose behalf a computer is or has been used to produce or store records or any person having control of, or otherwise concerned with the operation of the computer, to afford the authorised officer access thereto and all reasonable assistance as the authorised officer may require;

(

g

) remove from that place and retain the records (including documents stored in a non-legible form) and copies taken and detain the records for such period as the authorised officer reasonably considers to be necessary for further examination or until the conclusion of any legal proceedings;

(

h

) require that records at or in that place be maintained for such period as may be reasonable;

(

i

) require the person in charge to give the authorised officer such information as the authorised officer may reasonably require for the purposes of any search, examination, investigation, inspection or inquiry under these Regulations;

(

j

) require the person in charge to give the authorised officer such assistance and facilities within the person’s power or control as are reasonably necessary to enable the authorised officer to exercise any of his or her powers under these Regulations;

(

k

) require by notice, at a time and place specified in the notice, any person (including the person in charge) to give the authorised officer any information that the authorised officer may reasonably require in relation to the place, any product, partly completed machinery, equipment, item, activity, installation or procedure at or in the place, and to produce to the authorised officer any records that are under that person’s power or control;

(

l

) examine any person whom the authorised officer reasonably believes to be able to give to the authorised officer information relevant to any search, examination, investigation, inspection or inquiry under these Regulations and require the person to answer such questions as the authorised officer may ask relative to the search, examination, investigation, inspection or inquiry and to sign a declaration of the truth of the answers;

(

m

) require that any procedure be followed for the purposes of any search, examination, investigation, inspection or inquiry under these Regulations;

(

n

) take any measurements or photographs or make any tape, electrical or other recordings that the authorised officer considers necessary for the purposes of any search, examination, investigation, inspection or inquiry under these Regulations;

(

o

) take samples of air, soil, water or waste at or near that place;

(

p

) where appropriate, install, use and maintain at that place monitoring instruments, systems and seals for the purposes of these Regulations;

(

q

) at that place, or at any other location, carry out, or have carried out, such testing, examination or analysis of any item or product found at that place, as he or she reasonably considers to be necessary, and for that purpose—

(i) require the person in charge to supply to the authorised officer without charge any product, partly completed machinery, equipment or item, or samples thereof, or

(ii) remove, or have removed, to another location, any product, partly completed machinery, equipment or item, or samples thereof;

(

r

) cause any product or partly completed machinery found at that place in respect of which there has been or there appears to the authorised officer to have been a contravention of these Regulations, to be subjected to any testing, examination or analysis in accordance with subparagraph (

q

) (but not so as to damage or destroy it unless necessary for the purposes of these Regulations) and where an authorised officer proposes to exercise the power conferred by this subparagraph in the case of any such product or partly completed machinery found at any place, he or she shall, if so requested by the person in charge, cause anything that is to be done by virtue of that power to be done in the presence of that person;

(

s

) remove and retain for such period as is necessary any product, partly completed machinery, equipment or item found at that place for all or any of the following purposes

(i) to examine or arrange for the examination, testing or analysis of the product, partly completed machinery, equipment or item;

(ii) to ensure that it is not tampered with before the examination of it under subparagraph (i) is completed;

(iii) to ensure that it is available for use as evidence in any proceedings;

(

t

) where necessary—

(i) require the disposal of any product or partly completed machinery in respect of which there has been or there appears to the authorised officer to have been a contravention of these Regulations at the expense of the person in charge, or remove that product or partly completed machinery and arrange for it to be disposed of at the expense of the person in charge, and

(ii) require that such disposal shall be—

(I) such as will prevent the product or partly completed machinery from being used or placed on the market, and

(II) in compliance with requirements under the Waste Management Acts 1996 to 2003;

(

u

) require the removal from the market of a product or partly completed machinery by the person who has placed that product or partly completed machinery on the market, where it appears to the authorised officer that, in relation to that product or partly completed machinery, these Regulations have been contravened.

(2) Where a product or partly completed machinery is found at a place, and an inquiry is made by an authorised officer in the course of a search, examination, investigation or inspection as to the identity of the person who supplied that product or partly completed machinery, the person in charge shall give the authorised officer the name and address of the supplier from whom the product or partly completed machinery was purchased or otherwise obtained.

(3) Before exercising any of the powers conferred by subparagraphs (

q

) to (

t

) of paragraph (1), an authorised officer shall, in so far as it is practicable, consult such persons as appear to him or her to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing what he or she proposes to do under those subparagraphs.

(4) An authorised officer shall not enter a dwelling other than—

(

a

) with the consent of the occupier, or

(

b

) in accordance with a warrant of the District Court issued under paragraph (7) authorising such entry.

(5) A competent authority may authorise such and so many other persons as it considers appropriate to accompany an authorised officer in the performance of his or her functions.

(6) Where an authorised officer in the exercise of his or her powers under this Regulation is prevented from entering any place, an application may be made to the District Court for a warrant under paragraph (7) authorising such entry.

(7) Without prejudice to the powers conferred on an authorised officer by or under any other provision of this Regulation, if a judge of the District Court is satisfied by information on oath of an authorised officer that there are reasonable grounds for believing that—

(

a

) there is any product, partly completed machinery, equipment or item at any place or any records (including documents stored in a non-legible form) or information, relating to a place or to a product, partly completed machinery, equipment or item, that the authorised officer requires to inspect for the purposes of these Regulations, held at any place, or

(

b

) there is, or such an inspection is likely to disclose, evidence of a contravention of these Regulations,

the judge may issue a warrant authorising an authorised officer, accompanied by such other authorised officers or such other competent persons as may be appropriate or members of the Garda Síochána as may be necessary, at any time or times, within one month from the date of issue of the warrant, on production of the warrant if requested, to enter the place, if necessary by the use of reasonable force, and perform the functions conferred on an authorised officer by or under these Regulations.

(8) Where an authorised officer has reasonable grounds for apprehending any serious obstruction in the performance of his or her functions or otherwise considers it necessary, he or she may be accompanied by a member or members of the Garda Síochána and by any other person or persons authorised by a competent authority, when performing any functions conferred on him or her by or under these Regulations.

(9) Where an authorised officer, upon reasonable grounds, believes that a person has committed an offence under these Regulations he or she may require that person to provide him or her with the person’s name and the address at which the person ordinarily resides.

(10) A statement or admission made by a person pursuant to a requirement under subparagraph (i), (

k

) or (

l

) of paragraph (1) shall not be admissible in proceedings brought against that person for an offence (other than an offence under Regulation 44(4) relating to a breach of, or failure to comply with, an obligation in the said subparagraph (i), (

k

) or (

l

)).

(11) In this Regulation—

“person in charge” means, in relation to a place—

(

a

) the person under whose direction and control the activities at that place are being conducted, or

(

b

) the person whom the authorised officer has reasonable grounds for believing is in control of that place;

“place” means a place at or in which the authorised officer concerned believes there is or may be a product, partly completed machinery, equipment or item connected to a matter to which these Regulations apply, or may apply.

PART 6

Improvement plans, contravention notices and prohibition notices

Directions for improvement plan

37. (1) Where an authorised officer is of the opinion that there is occurring or likely to occur any situation or activity that involves or is likely to involve a risk to safety or health arising from or in connection with a product or partly completed machinery to which a duty under these Regulations applies, he or she may give a direction to the person (in these Regulations referred to as “the person in control”) who has, or whom the authorised officer reasonably presumes to have, control of the said product or partly completed machinery, requiring submission to the officer of a plan (in these Regulations referred to as an “improvement plan”) specifying the remedial action proposed to be taken to remove the risk.

(2) A direction given under paragraph (1) shall—

(

a

) identify the said product or partly completed machinery which is or is likely to be such a risk,

(

b

) require the submission by or on behalf of the person in control to the authorised officer, not later than one month after the giving of the directions, of an improvement plan,

(

c

) require the person in control to implement the said plan, in full and as soon as possible, and

(

d

) include any other requirements that the authorised officer considers necessary.

(3) Within one month of receipt of an improvement plan submitted under paragraph (2), an authorised officer, by notice to the person in control—

(

a

) shall confirm whether or not he or she is satisfied that the plan is adequate, or

(

b

) may direct that the plan be revised as specified in the notice and resubmitted to the authorised officer within the period specified in the notice.

Contravention notice

38. (1) An authorised officer who is of the opinion that a person—

(

a

) is contravening or has contravened any of the provisions of these Regulations, or

(

b

) has failed to comply with a direction under Regulation 37(1) to submit an improvement plan or, in the case of a notice under Regulation 37(3)(

b

), a revised improvement plan, or has failed to implement the improvement plan or revised improvement plan,

may serve a notice (in these Regulations referred to as a “contravention notice”) on the person in control.

(2) A contravention notice shall—

(

a

) state that the authorised officer is of the opinion referred to in paragraph (1),

(

b

) state the reason for that opinion,

(

c

) identify the relevant provision, in respect of which that opinion is held,

(

d

) direct the person to—

(i) remedy, by a date specified in the notice, the contravention or the matters occasioning that notice, or

(ii) remove a product or partly completed machinery from the market, by a date specified in the notice that shall not be earlier than the end of the period within which an appeal may be made under paragraph (6),

(

e

) include information regarding the making of an appeal under paragraph (6) and the provisions of paragraph (7),

(

f

) include any other requirement that the authorised officer considers appropriate, and

(

g

) be signed and dated by the authorised officer.

(3) A contravention notice may include directions—

(

a

) as to the measures to be taken to remedy any contravention or matter to which the notice relates, or to otherwise comply with the notice, and

(

b

) to bring the notice to the attention of any person who may be affected by it or the public generally.

(4) A person on whom a contravention notice has been served who is of the opinion that the contravention notice has been complied with shall confirm in writing to the authorised officer concerned that the matters referred to in the notice have been so remedied.

(5) Where a person on whom a contravention notice has been served so confirms in writing in accordance with paragraph (4) that the matters referred to in the contravention notice have been remedied, the authorised officer concerned shall, on being satisfied that the matters have been so remedied, within one month of receipt of such confirmation, give notice to the person concerned of compliance with the contravention notice.

(6) A person aggrieved by a contravention notice may, within 14 days beginning on the day on which the notice is served on him or her, appeal against the notice to a judge of the District Court in the district court district in which the notice was served and, in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.

(7) A person who appeals under paragraph (6) shall at the same time notify the relevant competent authority of the appeal and the grounds for the appeal and that competent authority shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

(8) Where an appeal under paragraph (6) is taken, and the contravention notice is not cancelled, the notice shall take effect on the later of—

(

a

) the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn, or

(

b

) the day specified in the notice.

(9) Where there is no appeal under paragraph (6), the contravention notice shall take effect on the later of—

(

a

) the end of the period for making an appeal, or

(

b

) the day specified in the notice.

(10) An authorised officer may—

(

a

) withdraw a contravention notice at any time, or

(

b

) where no appeal is made or pending under paragraph (6), extend the period specified under paragraph (2)(

d

).

Prohibition notice

39. (1) Where an authorised officer is of the opinion that at any place there is occurring or is likely to occur any situation or activity relating to a product or partly completed machinery that involves or is likely to involve a serious risk to safety or health, or in relation to which product or partly completed machinery the CE marking is not affixed in circumstances in which it should have been affixed, or is affixed in circumstances in which it should not have been affixed, the authorised officer may serve a notice (in these Regulations referred to as a “prohibition notice”) on the person in control.

(2) A prohibition notice shall—

(

a

) state that the authorised officer is of the opinion referred to in paragraph (1),

(

b

) state the reason for that opinion,

(

c

) specify the situation or activity in respect of which that opinion is held,

(

d

) where in the opinion of the authorised officer the activity involves a contravention, or likely contravention of any of these Regulations, specify the provision concerned,

(

e

) prohibit the carrying on of the activity concerned until the matters that give rise or are likely to give rise to the risk are remedied, and

(

f

) be signed and dated by the authorised officer.

(3) A prohibition notice may include directions—

(

a

) as to the measures to be taken to remedy any contravention or matter to which the notice relates, or to otherwise comply with the notice, and

(

b

) to bring the notice to the attention of any person who may be affected by it or the public generally.

(4) A prohibition notice shall take effect—

(

a

) when the notice is received by the person on whom it is served, or

(

b

) where an appeal is brought against the prohibition notice, on the day immediately following—

(i) the day on which the notice is confirmed on appeal or the appeal is withdrawn, or

(ii) the day specified in the notice,

whichever occurs later.

(5) The bringing of an appeal against a prohibition notice shall not have the effect of suspending the operation of the notice but the appellant may apply to the court to have the operation of the notice suspended until the appeal is disposed of and, on such application, the court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.

(6) A person on whom a prohibition notice is served may, within 7 days beginning on the day on which the notice is served on him or her, appeal against the notice to a judge of the District Court in the district court district in which the notice was served and in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.

(7) Where, on the hearing of an appeal under this Regulation, a prohibition notice is confirmed, notwithstanding paragraph (4), the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the prohibition notice for such period as in the circumstances of the case the judge considers appropriate.

(8) A person who—

(

a

) brings an appeal under paragraph (6), or

(

b

) applies for the suspension of the operation of a prohibition notice under paragraph (7),

shall at the same time notify the relevant competent authority of the appeal or the application, and the grounds for the appeal or application.

(9) A person on whom a prohibition notice has been served who is of the opinion that the matters referred to in the prohibition notice have been remedied by the date specified in the notice shall confirm in writing to the authorised officer that those matters have been so remedied.

(10) Where a person on whom a prohibition notice has been served confirms in writing to the authorised officer in accordance with paragraph (9) that the matters referred to in the prohibition notice have been remedied, the authorised officer shall, on being satisfied that the matters have been so remedied, within one month of receipt of such confirmation, give notice to the person concerned of such compliance with the prohibition notice.

(11) An authorised officer may at any time withdraw a prohibition notice if—

(

a

) the authorised officer is satisfied that the situation or activity to which the notice relates no longer involves a serious risk to health or the environment, or

(

b

) the authorised officer is satisfied that the notice was issued in error or is incorrect in some material respect.

Contravention of prohibition notice — application to High Court

40. (1) Where a person contravenes a prohibition notice, an authorised officer may apply ex parte to the High Court for an order prohibiting the continued contravention of the notice.

(2) The High Court may, upon an application under this Regulation, order the person on whom the prohibition notice concerned was served to cease doing such acts as the High Court directs.

Publication of information relating to contravention notices and prohibition notices

41. (1) A competent authority may, in the interest of the protection of safety or health and in consultation, where appropriate, with another competent authority, take such measures as it considers appropriate to bring to the attention of the public matters giving rise to any contravention notice or prohibition notice served under these Regulations.

PART 7

Supplemental Provisions

Restrictions on the disclosure of information

42. A person in receipt of information as a result of the application of these Regulations shall treat same as confidential. In particular, business, professional and trade secrets shall be treated as confidential unless the divulging of such information is—

(

a

) for the purpose of the discharge of functions under these Regulations,

(

b

) made with the consent of the person to whom the information applies, or

(

c

) for the purposes of—

(i) any legal proceedings (including by means of a report to a coroner holding an inquest under the Coroners Acts 1962 and 2005 on the body of a person whose death may have been caused through personal injury), or

(ii) any investigation or special report under

section 70

of the

Safety, Health and Welfare at Work Act 2005

,

(

d

) necessary in order to protect the health and safety of persons,

(

e

) required by the provisions of these Regulations or the Directive, or

(

f

) ordered by a court of law.

Service of notices etc

43. (1) A notice or other document required or authorised to be served on, sent or given to a person under these Regulations shall, subject to paragraph (2), be addressed to the person concerned by name, and may be served on, sent or given to the person in one of the following ways

(

a

) by delivering it to the person;

(

b

) by leaving it at the address at which the person ordinarily resides or, in a case where an address for service has been furnished, at that address;

(

c

) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(

d

) where the address at which the person ordinarily resides cannot be ascertained by reasonable inquiry and the notice or other document relates to any place of business, by delivering it to a person over the age of 16 years resident or employed at the place of business or by affixing it in a conspicuous position at or near the place of business;

(

e

) if the person concerned has agreed to service of notices by means of an electronic communication (within the meaning assigned by

section 2

of the

Electronic Commerce Act 2000

), service by such means, provided that there is a facility for confirming receipt of electronic communication and that such receipt has been confirmed;

(

f

) where there is a facility for receiving a facsimile of the notice by electronic means at the address at which the person ordinarily resides or carries on business, by transmitting a facsimile of the notice by such means to that address, or

(

g

) by any other means that may be prescribed.

(2) Where a notice or other document required or authorised under these Regulations is to be served on, sent or given to a person who is the owner or occupier of a place of business and the name of the person cannot be ascertained by reasonable inquiry, it may be addressed to the person by using the words, “the owner” or, as the case may require, “the occupier”.

(3) For the purposes of these Regulations, a company within the meaning of the Companies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

PART 8

Offences and Penalties

Offences

44. (1) A person who contravenes a provision or requirement of Regulation 4, 5, 6, 7, 8,9, 10 or 11, commits an offence.

(2) A person who contravenes a requirement in a contravention notice or a prohibition notice commits an offence.

(3) A person who, in relation to the CE marking or any document required for the purposes of these Regulations—

(

a

) forges or counterfeits any such document,

(

b

) gives or signs a document or makes a marking knowing it to be false in any material particular,

(

c

) knowingly utters or uses a marking or document so forged or counterfeited, or which is false as aforesaid,

(

d

) knowingly utters or uses as applying to any person or product a marking or document which does not so apply,

(

e

) knowingly connives at any such forging, counterfeiting, giving, signing, uttering or using,

(

f

) knowingly makes a false entry in any such document which is so required to be kept, served or sent,

(

g

) knowingly uses any such false entry, or

(

h

) knowingly has, without lawful authority, a forged marking or document or an altered marking or document in his or her possession,

commits an offence.

(4) Any person who obstructs or interferes with an authorised officer or a member of the Garda Síochána in the course of exercising a power conferred on him or her by these Regulations or a warrant under Regulation 36(7) or impedes the exercise by the authorised officer or member, as the case may be, of such power, or fails or refuses to comply with a request or requirement of, or to answer a question asked by, an authorised officer or such a member pursuant to a power conferred by these Regulations, or in purported compliance with such request or requirement, or who in answer to such question gives information to the authorised officer or member that he or she knows to be false or misleading in any material respect, commits an offence.

(5) A person who falsely represents himself or herself to be an authorised officer commits an offence.

(6) A person who, at any time during the period of 3 months immediately following the affixing of a notice in accordance with Regulation 43(1)(

d

), removes, alters, damages or defaces the notice without lawful authority commits an offence.

(7) A person who states to a competent authority that another person has committed an offence under this Regulation or has failed to comply with a provision of these Regulations, knowing the statement to be false, commits an offence.

(8) A person who, in purported compliance with a requirement in an information notice, furnishes information to a competent authority that he or she knows to be false or misleading in a material respect commits an offence.

(9) A person who contravenes Regulation 42 commits an offence.

(10) A person who—

(

a

) fails to comply with a direction under Regulation 37, or

(

b

) contravenes a notice requiring information under Regulation 29,

commits an offence.

Penalties

45. (1) A person guilty of an offence under Regulation 44 shall be liable—

(

a

) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months or both, or

(

b

) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 2 years or both.

(2) Where a person is convicted of an offence under these Regulations in proceedings brought by a competent authority, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to that competent authority the costs and expenses, measured by the court, incurred by the competent authority in relation to the investigation, detection and prosecution of the offence, including the costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of employees, consultants and advisers engaged by the competent authority.

Offences by bodies corporate

46. Where an offence under these Regulations has been committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate commits an offence and shall be liable to be proceeded against and punished as if he or she had committed the first-mentioned offence.

Defence in proceedings

47. In any proceedings for an offence for a contravention of any of the provisions of these Regulations it shall be a defence for the person charged to prove that—

(

a

) the commission of the offence was due to the act or default of another person, not being one of his or her employees, or

(

b

) he or she took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Prosecution of offences

48. (1) Subject to paragraph (2), summary proceedings in relation to an offence under these Regulations may be brought and prosecuted by a competent authority.

(2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under Regulation 44 may be instituted at any time within 12 months from the date on which the offence was committed or alleged to have been committed.

PART 9

Miscellaneous

Appeal to Circuit Court from certain orders of District Court

49. For the avoidance of doubt, an order of the District Court confirming, varying or cancelling a notice under Regulation 31, 38(6) or 39(6) is a decision of a judge of the District Court for the purposes of section 84 of the Courts of Justice Acts 1924.

Notice or direction to be in writing

50. Any notice or direction under these Regulations shall be in writing.

Revocation

51. The European Communities (Machinery) Regulations 2001 (

S.I. No. 518 of 2001

) are revoked with effect from 29 December 2009.

Regulation 3(1)

SCHEDULE 1

Annex I to Directive 2006/42/EC

Essential health and safety requirements relating to the design and construction of machinery.

GENERAL PRINCIPLES