New Machinery Regulation - an important step forward

Evidently, the times and ways of politics are the same everywhere: even in Brussels, agreements are made at the last moment, and this is what exactly what happened for the new Machinery Directive, or rather Machinery Regulation, which is the first and perhaps most important news. The European legislators (Parliament and Council), during the third and final debate on 15 December, reached a preliminary agreement that paves the way for ratification in the first part of 2023. The change from a directive to a regulation, proposed by the Commission, found favour with the legislators above all in view of the risks represented by the speed at which new technologies are introduced: a regulation in fact, being of immediate application, unifies and standardises the market more efficiently and sooner, providing common rules for manufacturers to ensure the essential safety requirements of any piece of equipment anywhere. Even if the text of the act is not yet available, several Council and Commission communications justify the decisions taken with the need to include all possible types of machinery in the scope of the regulation: from large production machines to miniaturised or fully robotized; the intention is also to cover risks of an IT nature, to provide clarity of rules for all and facilitate investments and competitiveness at continental level. As far as the duties of manufacturers are concerned, where “high risk” machines subject to compulsory inspections by third-party bodies are listed (Annex 1), the communiqué reports the choice of the legislators to divide the list into two parts; six categories of machines will be subject to compulsory third-party certification while the other categories still provide for the option of self-certification of conformity as an alternative to voluntary turning to third-party bodies. This frankly leaves some doubts: it will be interesting to see the final text of the act and to analyse its contents thoroughly. Equally noteworthy are the news concerning autonomous, semi-autonomous machines and applications of artificial intelligence and the relative certification of conformity. This is a point of great concern for the Commission, which has reserved the right to update the list of this type of machinery due to the high potential risks involved. With an eye on reducing costs, especially for small and medium-sized enterprises, the Commission decided to move towards a greater digitization of all product documentation, including conformity certification, with the sole exception of basic safety information, which must, in any case, be supplied in paper form with each product. As far as our sector is concerned, it is interesting to note that the Commission also wanted to include small vehicles for personal mobility, which are increasingly used and therefore carry a degree of danger to the user. The new regulation is at this point in the final stage of its legislative process; after passing through the IMCO committee in the coming weeks, the Parliament will take it to a plenary session for approval and then forward it to the Council for final adoption; its entry into force will be 42 months after publication. In conclusion, it’s game over, or so it seems according to Brussels methods and custom. However, it will be necessary for manufacturers to carefully analyse the final text because, as they themselves know from experience, the subject matter is far from simple, and the risks are high, not to mention the new opportunities that will arise as a result.


The European Court of Justice ruling on the cost of technical data

The European Court of Justice recently delivered one of the most eagerly awaited judgments among the various technical data litigations. We are talking about the case brought by ADPA (the European Data Publishers' Association) and others against PSA on the cost of technical data, a case initially brought before the regional court in Cologne (Germany) and then transferred to the court in The Hague. A first important result of the judgment is that in this area, Regulation 858/2018 also applies to vehicles of previous type-approval such as Euro 5/6, which basically means the entire European vehicle fleet. A second positive result for the entire aftermarket is that the data provided by the manufacturer can be used by the independent operators without the manufacturer having to be granted any rights in connection with the business generated. The other chapters of the judgment go a little deeper in defining the rights better but are not as comprehensive as the first two. The issue revolves around the interpretation of the requirement of "honest and reasonable" costs that "do not discourage" purchase. To sum up, the point of the ruling here is that these requirements are to be measured in relation to the recipient-buyer's business, not that of the supplier-producer. Which on the one hand implies that the cost must contribute to generating a revenue for the operator, but on the other hand the same data can be sold under different conditions for different businesses. An example for all: a simple spare part code used by a car repairer to replace a component on his customer's car may legitimately have a different cost than a data publisher who uses it to sell data to its customers.  It is therefore clear that the judgment unfortunately does not end other possible litigations. There will certainly be other similar cases, but now there is a precedent, which is the central position of the user with respect to the provider; it was already inherent in the regulation in question, but the ruling now makes it final. What the consequences of this ruling will be in the aftermath remains to be seen, but they will affect the entire sector and not only for the claimants; the ruling in fact relates to the general principles of Regulation 858 and consequently to the entire framework of laws to which the Regulation refers. We’re left hoping that the sense of the Court's pronouncement will be transposed by all so as not to have to incur new, useless and costly litigations that would benefit no one in the long run.