Nick & Lauren,
Many thanks for your useful comments. Regards. Scott From: [email protected] [mailto:[email protected]] On Behalf Of [email protected] Sent: Wednesday, February 11, 2009 4:46 AM To: 'emc-pstc' Subject: Re: Who is responsible for the penalty? Nick's reply stirred up for me some additional comments that may be of value. For all practical purposes a company external to the EU "does not exist" in the eyes of the EU directives. That is, it has no legal standing or identity. This can be a very difficult concept to integrate in your strategies when the world wide headquarters of a company is outside the EU (e.g., in the US). If push ever came to shove regarding violation of directive criteria, the EU authorities would/could only go after an authorized representative in the EU, or if there is none, the company that imported the offending item directly. Therefore, the declaration must be signed by someone empowered on behalf of the manufacturer [if they exist in the EU] or his authorized representative. The authorized representative in the EU can certainly empower someone outside of the EU to sign the declaration. BUT the authorized representative in the EU must be named in the declaration, and will be the point of first contact and first responsibility if there are questions from authorities. Regards, Lauren Crane Product Regulatory Analyst Corporate Product EHS Lead Applied Materials Inc. Austin, TX 512 272-6540 [#922 26540] - external use - Save paper and trees! Please consider the environment before printing this e-mail. Nick Williams <[email protected]> Sent by: [email protected] 02/10/2009 02:24 PM To Scott Xe <[email protected]> cc "'emc-pstc'" <[email protected]> Subject Re: Who is responsible for the penalty? At 21:20 +0800 9/2/09, Scott Xe wrote: >Must the one who signed the Doc be working in EU countries? No. >Has the one >received any legal authority from the company? They assume such authority by signing the Declaration. A company would be silly to permit this to be done by someone who does not have the appropriate status within the company. > >Looking at the penalty clause of REACH compliance, on conviction on >indictment, to a fine or to imprisonment not exceeding two years, or >both. Is the penalty applied to the person of the CEO or the one who signed >the DoC? If the CEO or the one signed the DoC had left the company, who is >responsible for the penalty? In signing the Declaration, the signatory makes a commitment on behalf of the Responsible Person (which may be a corporate body, etc.) that the processes required by the applicable directives are properly completed. They sign as a representative of the Responsible Person, and their personal liability is dependent on their responsibilities within the company. Both individuals and companies can be held responsible for the activities of a corporate body. Normally the director(s) of a company are held liable for any activities of that company, but if the directors can show that they fulfilled their duty to provide good management and adequate resources to their staff, and it was the actions (or inactions) of a junior staff member which caused a breach of statutory duty, the junior staff member will have to answer for their personal actions rather than the Director. Directors have certain specific duties which is why they have to be formally appointed and notified (to Companies House in the UK), but all members of staff have other legal duties which are appropriate to their position, and just because someone is not a Director does not mean that they cannot be hauled into court and asked to account for themselves in the event of the company making a major error in which they were involved. It's an important point of law that you cannot re-assign your criminal obligations by contract, although you may be able to subcontract the actions which fulfillment of those obligations entails. A company Director has many duties under the law, and most of the actions which those duties require are actually delegated to junior staff. CE marking obligations are just further such duties, which a Director will assign to appropriately qualified staff. However, the duties remain the legal responsibility of the Director and just because he tells someone else to sign the Declaration of Conformity does not mean that he is not liable if the work is not done correctly. Regards Nick. - This message is from the IEEE Product Safety Engineering Society emc-pstc discussion list. To post a message to the list, send your e-mail to <[email protected]> All emc-pstc postings are archived and searchable on the web at: http://www.ieeecommunities.org/emc-pstc Graphics (in well-used formats), large files, etc. can be posted to that URL. Website: http://www.ieee-pses.org/ Instructions: http://listserv.ieee.org/request/user-guide.html List rules: http://www.ieee-pses.org/listrules.html For help, send mail to the list administrators: Scott Douglas <[email protected]> Mike Cantwell <[email protected]> For policy questions, send mail to: Jim Bacher: <[email protected]> David Heald: <[email protected]> - This message is from the IEEE Product Safety Engineering Society emc-pstc discussion list. To post a message to the list, send your e-mail to <[email protected]> All emc-pstc postings are archived and searchable on the web at http://www.ieeecommunities.org/emc-pstc Graphics (in well-used formats), large files, etc. can be posted to that URL. Website: http://www.ieee-pses.org/ Instructions: http://listserv.ieee.org/request/user-guide.html List rules: http://www.ieee-pses.org/listrules.html For help, send mail to the list administrators: Scott Douglas <[email protected]> Mike Cantwell <[email protected]> For policy questions, send mail to: Jim Bacher <[email protected]> David Heald <[email protected]> - This message is from the IEEE Product Safety Engineering Society emc-pstc discussion list. To post a message to the list, send your e-mail to <[email protected]> All emc-pstc postings are archived and searchable on the web at http://www.ieeecommunities.org/emc-pstc Graphics (in well-used formats), large files, etc. can be posted to that URL. Website: http://www.ieee-pses.org/ Instructions: http://listserv.ieee.org/request/user-guide.html List rules: http://www.ieee-pses.org/listrules.html For help, send mail to the list administrators: Scott Douglas <[email protected]> Mike Cantwell <[email protected]> For policy questions, send mail to: Jim Bacher <[email protected]> David Heald <[email protected]>
