If a machine was placed on the market after 01.01.1995 and has no EC declaration of conformity, must the conformity assessment procedure be carried out in accordance with the "old" Machinery Directive (MD) 98/37/EC or the "new" Machinery Directive 2006/42/EC?
Date on which the machine is placed on the market/put into service
The requirements are based on the date on which the machine was first placed on the market/put into service within the European Economic Area (EEA). The "old" Machinery Directive 98/37/EC makes no reference to any "effective date" for application. In the "new" Machinery Directive 2006/42/EC, the terms placing on the market and putting into service are clearly defined (see Article 2).
European law has been adopted into domestic law; in Germany, for example, it is the Equipment and Product Safety Act (GPSG). §4 of the GPSG states that in the case of technical work equipment, the legal situation at the time it is first placed on the market in the European Economic Area shall apply. This means that in the case of a retrospective conformity assessment for a machine, the legal situation at the time it was first placed on the market and, with "in-house production", the time it was first put into service within the EEA shall apply. However, the operator/employer must establish whether the industrial safety regulations (BetrSichV) contain further obligations for the time the machine was first placed on the market or put into service. There is no mention of legacy protection in BetrSichV, it merely sets out the date for the legal position of an item of work equipment.