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

ARRANGEMENT OF REGULATIONS

PART 1 Citation, Commencement and Interpretation

1.

2.

3.

PART 2 Requirements for placing on the market and putting into service

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

PART 3 Notified Bodies

14.

15.

16.

17.

18.

PART 4 Competent Authorities

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

PART 5 Authorised Officers

34.

35.

36.

PART 6 Improvement plans, contravention notices and prohibition notices

37.

38.

39.

40.

41.

PART 7 Supplemental Provisions

42.

43.

PART 8 Offences and Penalties

44.

45.

46.

47.

48.

PART 9 Miscellaneous

49.

50.

51.

SCHEDULE 1 Annex I to Directive 2006/42/EC — Essential health and safety requirements relating to the design and construction of machinery.

SCHEDULE 2 Annex II to Directive 2006/42/EC — Declarations (EC Declaration of conformity of machinery and Declaration of incorporation of partly completed machinery).

SCHEDULE 3 Annex III to Directive 2006/42/EC — CE marking.

SCHEDULE 4 Annex IV to Directive 2006/42/EC — Categories of machinery to which one of the procedures referred to in Article 12(3) and (4) must be applied.

SCHEDULE 5 Annex V to Directive 2006/42/EC — Indicative list of the safety components referred to in Article 2(c).

SCHEDULE 6 Annex VI to Directive 2006/42/EC — Assembly instructions for partly completed machinery.

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.

SCHEDULE 8 Annex VIII to Directive 2006/42/EC — Assessment of conformity with internal checks on the manufacture of machinery.

SCHEDULE 9 Annex IX to Directive 2006/42/EC — EC type-examination.

SCHEDULE 10 Annex X to Directive 2006/42/EC — Full quality assurance.

SCHEDULE 11 Annex XI to Directive 2006/42/EC — Minimum criteria to be taken into account by Member States for the notification of bodies.

SCHEDULE 12 Article 1(2) of Directive 2006/42/EC — Equipment excluded from application of these Regulations.

S.I. No. 407 of 2008

EUROPEAN COMMUNITIES (MACHINERY) REGULATIONS 2008

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 24th October, 2008.

I, MARY COUGHLAN, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving effect to Directive 2006/42/EC of the European Parliament and of the Council ¹ on machinery, and amending Directive 95/16/EC (recast), hereby make the following regulations:

PART 1 Citation, Commencement and Interpretation

Citation

Commencement

• (2) As regards portable cartridge operated fixing and other impact machinery which are in conformity with existing provisions in force at 17 May 2006, these Regulations come into operation on 29 June 2011.

Interpretation and application

“Annex” means an Annex to the Directive;

“Article” means an Article of the Directive;

“authorised representative” means any natural or legal person established in the Community who has received a written mandate from a manufacturer to perform on his or her behalf all or part of the obligations and formalities connected with the Directive and these Regulations;

“Authority” means the Health and Safety Authority;

“CE marking” means the conformity marking referred to in Article 16 and in Regulation 11, details and requirements in respect of which are set out in Annex III, the text of which Annex (including the illustration of the mark) is, for ease of reference, set out in Schedule 3;

“chains, ropes and webbing” means chains, ropes and webbing designed and constructed for lifting purposes as part of lifting machinery or lifting accessories;

“Commission” means the Commission of the European Communities;

“Community” means the European Community;

“competent authority” means, as the context requires, one or other of the bodies specified in Regulation 19;

“declaration of conformity” means the EC declaration of conformity, appropriate to the product in question, referred to in Article 5, and details and requirements in respect of which are set out in part 1, Section A of Annex II, the text of which Annex is, for ease of reference, set out in Schedule 2;

“Directive” means Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 ¹ on machinery, and amending Directive 95/16/EC (recast);

“EC type-examination certificate” means the certificate referred to in paragraph 4 of Annex IX, the text of which Annex is, for ease of reference, set out in Schedule 9;

“essential health and safety requirements” means the essential health and safety requirements of the Directive, relating to the design and construction of a product, set out in Annex I, the text of which Annex is, for ease of reference, set out in Schedule 1;

“harmonised standard” means a non-binding technical specification adopted by a standardisation body, namely the European Committee for Standardisation (CEN), the European Committee for Electrotechnical Standardisation (CENELEC) or the European Telecommunications Standards Institute (ETSI), on the basis of a remit issued by the Commission in accordance with the procedures laid down in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 ² laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as last amended by the 2003 Act of Accession;

“interchangeable equipment” means a device which, after the putting into service of machinery or of a tractor, is assembled with that machinery or tractor by the operator himself or herself in order to change its function or attribute a new function, in so far as this equipment is not a tool;

“lifting accessory” means a component or equipment not attached to the lifting machinery, allowing the load to be held, which is placed between the lifting machinery and the load or on the load itself, or which is intended to constitute an integral part of the load and which is independently placed on the market; slings and their components are also regarded as lifting accessories;

“machinery” (save in the Schedules) means machinery to which the Directive applies, being any or all of the following:

• (a) an assembly, fitted with, or intended to be fitted with, a drive system other than directly applied human or animal effort, consisting of linked parts or components, at least one of which moves, and which are joined together for a specific application;

• (b) an assembly referred to in paragraph (a), missing only the components to connect it on site or to sources of energy and motion;

• (c) an assembly referred to in paragraph (a) or (b), ready to be installed and able to function as it stands only if mounted on a means of transport, or installed in a building or a structure;

• (d) assemblies of machinery referred to in paragraph (a), (b) or (c), or partly completed machinery, which, in order to achieve the same end, are arranged and controlled so that they function as an integral whole;

• (e) an assembly of linked parts or components, at least one of which moves and which are joined together, intended for lifting loads and whose only power source is directly applied human effort;

“manufacturer” means any natural or legal person who designs or manufactures a product or partly completed machinery and is responsible for the conformity of that product or partly completed machinery with the Directive with a view to its being placed on the market, under his, her or its own name or trademark, or for his, her or its own use. In the absence of a manufacturer as thus defined, any natural or legal person who places on the market or puts into service such product or partly completed machinery shall be considered a manufacturer;

“Minister” means Minister for Enterprise, Trade and Employment;

“notified body” means (except in Schedules 2, 3, 9, 10 and 11, where it also includes a person or body notified by another Member State) a person or body appointed by the Minister under Regulation 14 to be a notified body in the State;

“partly completed machinery” means partly completed machinery to which the Directive applies, being an assembly which is almost machinery but which cannot in itself perform a specific application. A drive system is partly completed machinery. Partly completed machinery is only intended to be incorporated into or assembled with other machinery or other partly completed machinery or equipment, thereby forming machinery;

“place on the market” means making a product or partly completed machinery available for the first time in the Community, with a view to distribution or use, whether by one or more of the following means, or otherwise:

• (a) importation;

• (b) sale;

• (c) offering or exposing for sale;

• (d) inviting the making by a person of an offer to purchase;

• (e) distributing free of charge;

• (f) in the case of a manufacturer, supplying for any of those purposes;

• (g) supplying under a hire-purchase agreement; and

• (h) letting other than under a hire-purchase agreement;

“prescribed” means prescribed by regulations made by the Minister;

“product” means a product to which the Directive applies, being any or all of the following:

• (a) machinery;

• (b) interchangeable equipment;

• (c) safety components;

• (d) lifting accessories;

• (e) chains, ropes and webbing;

• (f) removable mechanical transmission devices;

“putting into service” means the first use, for its intended purpose, in the Community, of a product;

“quality assurance system” means the system thus described and referred to in Annex X, the text of which Annex is, for ease of reference, set out in Schedule 10;

“record” includes any memorandum, book, report, statement, register, plan, chart, map, drawing, specification, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or images or both), any form in which data (within the meaning of the Data Protection Acts 1988 and 2003) are held, any form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically, and anything that is a part or copy, in any form, of any of, or any combination of, the foregoing;

“removable mechanical transmission device” means a removable mechanical transmission device to which the Directive applies, being a removable component for transmitting power between self-propelled machinery or a tractor and another item of machinery by joining them at the first fixed bearing. When it is placed on the market with the guard it shall be regarded as one piece of equipment;

“safety component” means a safety component to which the Directive applies, being a component—

• (a) which serves to fulfil a safety function,

• (b) which is independently placed on the market,

• (c) the failure or malfunction of which endangers the safety of persons, and

• (d) which is not necessary in order for a product to function, or for which normal components may be substituted in order for the said product to function;

an indicative list of safety components is set out in Annex V, the text of which Annex is, for ease of reference, set out in Schedule 5, which list may be updated in accordance with Article 8(1)(a);

“technical file” means the technical file referred to in part A of Annex VII, the text of which Annex is, for ease of reference, set out in Schedule 7.

• (2) A word or expression, other than “machinery” or “product”, which is used in these Regulations and which is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

• (3) These Regulations do not apply to the equipment specified in Article 1(2) of the Directive, the text of which Article is, for ease of reference, set out in Schedule 12.

PART 2 Requirements for placing on the market and putting into service

General duties of manufacturer or authorised representative as regards products

• (a) it satisfies the essential health and safety requirements,

• (b) the technical file is prepared, and is available, in accordance with the requirements of Annex VII, and has been complied with,

• (c) any necessary information and instructions have been provided,

• (d) appropriate procedures for assessing conformity in compliance with Regulation 9, and any necessary research and tests on components, fittings or the completed product, have been carried out,

• (e) a declaration of conformity has been drawn up, and shall be retained, in accordance with the requirements in part 1, Section A of Annex II,

• (f) it is accompanied by the said declaration of conformity,

• (g) the CE marking has been affixed in accordance with Regulation 11.

Duties of manufacturer or authorised representative as regards compliance with Regulation 10 relating to partly completed machinery

Duties of manufacturer or authorised representative as regards compliance with Regulation 9 relating to essential health and safety requirements

Duties of manufacturer or authorised representative as regards compliance with other Directives

Duties of persons showing products or partly completed machinery at trade fairs etc

• (a) provide a clearly visible sign indicating that the product or partly completed machinery concerned does not so conform and that it will not be made available until it has been brought into such conformity,

• (b) take adequate safety measures to ensure the protection of persons.

Duties of manufacturer or authorised representative as regards certifying the conformity of products

• (a) where the product concerned is not referred to in Annex IV, the text of which Annex is, for ease of reference, set out Schedule 4, the procedure for assessment of conformity with internal checks on the manufacture of machinery provided for in Annex VIII, the text of which Annex is, for ease of reference, set out in Schedule 8;

• (b) where the product concerned is referred to in Annex IV and is manufactured in accordance with a harmonised standard and provided that those standards cover all the relevant health and safety requirements, one of the following:

• (i) the procedure for assessment of conformity with internal checks on the manufacture of a product provided for in Annex VIII;

• (ii) the EC type examination procedure provided for in Annex IX and the internal checks on the manufacture of a product provided for in point 3 of Annex VIII;

• (iii) the procedure for full quality assurance provided for in Annex X;

• (c) where the product concerned is referred to in Annex IV and has not been manufactured in accordance with the appropriate harmonised standard or standards, or only partly in accordance with such standard or standards, or if the harmonised standards do not cover all the relevant essential health and safety requirements or if no harmonised standards exist for the product in question, one of the following:

• (i) the EC type-examination procedure provided for in Annex IX, plus the internal checks on the manufacture of a product provided for in paragraph 3 of Annex VIII;

• (ii) the full quality assurance procedure provided for in Annex X.

Duties of manufacturer or authorised representative as regards relevant technical documentation, assembly instructions and declaration of incorporation relating to partly completed machinery

• (a) the relevant technical documentation is prepared, and is available, in accordance with the requirements of Part B of Annex VII,

• (b) assembly instructions in accordance with Annex VI are prepared,

• (c) the declaration of incorporation described in part 1, Section B of Annex II has been drawn up, and shall be retained, in accordance with the requirements of that Annex, and

• (d) the assembly instructions and the relevant declaration of incorporation shall accompany the partly completed machinery until it is incorporated into the final machinery.

Duties of manufacturer or authorised representative as regards application of CE marking as regards products

• (a) the CE marking shall consist of the initials ‘CE’ as shown in Annex III,

• (b) the CE marking shall be affixed to the product concerned visibly, legibly and indelibly in accordance with Annex III, and

• (c) markings, signs and inscriptions which are likely to mislead third parties as to either the meaning or form, or both, of the CE marking are not to be so affixed.

CE marking and declaration of conformity

Products manufactured in conformity with a harmonised standard

PART 3 Notified Bodies

Appointment of notified bodies and their duties

• (2) The appointment may be made subject to such conditions as the Minister may determine, and such conditions may include conditions which apply upon, during or following the termination of the appointment.

• (3) Such an appointment shall be withdrawn—

• (a) upon expiry of the period of the appointment,

• (b) upon the expiry of 90 days notice in writing given by a notified body to the Minister,

• (c) upon determination by the Minister that the notified body no longer meets the criteria set out in Annex XI, the text of which is, for ease of reference, set out in Schedule 11,

• (d) upon determination by the Minister that the notified body does not comply with, or has ceased to comply with, the conditions attached to such appointment, or is seriously failing to fulfil its responsibilities.

• (4) The Minister shall apply the criteria set out in Annex XI in assessing the bodies to be notified and the bodies already notified.

• (5) A body appointed as a notified body pursuant to the European Communities (Machinery) Regulations 2001 ( S.I. No. 518 of 2001 ) may, subject to the agreement of the Minister and to any conditions the Minister deems necessary, continue to act as a notified body under these Regulations.

• (6) A notified body shall—

• (a) conform with the minimum criteria set out in Annex XI,

• (b) undertake the functions and comply with requirements specified in Annex IX relating to EC type examinations and in Annex X relating to quality assurance systems.

Provision of information to the Commission, other Member States and the public on notified bodies

• (2) The Minister shall, without delay, inform the Commission and other Member States of any subsequent amendments to the information provided pursuant to paragraph (1).

• (3) The Minister shall publish in Iris Oifigiúil the relevant information concerning each notified body appointed by him or her, including information concerning the withdrawal of an appointment.

Monitoring of notified bodies

• (a) compliance with any condition specified in the appointment, and

• (b) that it continues to meet the criteria set out in Annex XI.

• (2) Such monitoring may include the examination of premises, equipment and documents.

• (3) The notified body shall provide to the person carrying out the monitoring such assistance, including documents, as is necessary for the proper conduct of the inspection.

• (4) The Minister shall furnish a written report on the findings of such monitoring to the notified body which has been investigated.

Suspension, withdrawal or restriction of certificates or approvals by notified bodies

• (2) A notified body shall give detailed reasons in writing for any action taken by it pursuant to paragraph (1).

• (3) A notified body may choose not to use the sanctions available to it under paragraph (1) if compliance with its requirements is ensured by the implementation of appropriate corrective measures by the manufacturer.

Provision of information by notified bodies to relevant competent authority

• (a) in the event of the suspension or withdrawal of an EC type-examination certificate or an approval of a quality assurance system or of any restriction placed on either of them, or

• (b) where the intervention of the competent authority may be necessary.

• (2) When a competent authority receives information pursuant to paragraph (1), it shall inform the Commission and other Member States.

• (3) A manufacturer aggrieved by a decision of a notified body under Regulation 17(1) may appeal the decision to the relevant competent authority.

PART 4 Competent Authorities

Competent authorities

• (2) The National Consumer Agency shall be the competent authority for any product or partly completed machinery that may be prescribed by the Minister under this paragraph.

Functions of competent authorities

• (a) monitor, by inspection and other necessary methods, the conformity of a product or partly completed machinery with the requirements of these Regulations,

• (b) where it ascertains that a product or partly completed machinery does not meet the requirements of these Regulations—

• (i) require the withdrawal from the market of,

• (ii) prohibit the placing on the market and the putting into service of, and

• (iii) restrict the free movement of,

the product or partly completed machinery concerned,

• (c) inform the Commission and other Member States, in accordance with Article 11, of any measures taken in accordance with subparagraph (b),

• (d) cooperate, including by the exchange of information, with competent authorities in other Member States and with the Commission to enable the Directive to be applied uniformly as required by Article 19,

• (e) publish any decisions referred to in Article 18(3).

• (2) A competent authority shall, in relation to its functions under these Regulations—

• (a) keep appropriate records, and

• (b) in the case of a body designated under Regulation 19(b), furnish to the Authority—

• (i) a report within 2 months after the end of each year, and

• (ii) such other reports and information relating to the performance of its functions as the Authority may, from time to time, require.

Immunity

Indemnification

Restriction or prohibition

Directions regarding CE marking affixed unduly to products

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

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

Publication of information on action taken regarding non-compliant products

• (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

Power to require information

• (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

• (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

• (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

• (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

• (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

Warrants or certificates of appointment

Powers of authorised officers

• (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

• (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

• (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

• (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

• (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

PART 7 Supplemental Provisions

Restrictions on the disclosure of information

• (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

• (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

• (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

• (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

Defence in proceedings

• (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

• (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

Notice or direction to be in writing

Revocation

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