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]
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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.
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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]>
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