In the life of a professional attorney, there are topics that are “sensational,” “media” or simply of interest to virtually everyone – such is the case, for example, with taxes, fees or restrictions on commonly available goods being introduced. On the other hand, often the essence of our work[particularly as legal advisors or attorneys] is to follow or analyze legislative changes that seemingly affect a marginal number of stakeholders or that, again, seemingly concern purely technical issues. These “technical” standardizations or testing of certification requirements for certain products can be crucial to the proper functioning of Customers’ broader business and its compliance with common law.

This is the case, for example, in establishing and following methods for testing the noise of equipment operating outdoors, such as lawn mowers, construction plants and equipment, compressors, generators, excavators or bulldozers.

The above legislative changes may (and even should) be of interest not only to manufacturers, but also to importers or distributors of this type of equipment and machinery, who operate on the EU market (therefore, also in Poland).

Certification of equipment and machinery – EU and national law

In the Member States of the European Union, manufacturers shall measure the noise emissions of machines and provide information on noise emissions, including information on the method used to measure noise, which, in cases where harmonized standards are not applied, should be the method most suitable for the machine in question, unless the method is specified in other Union legislation and its application is mandatory.

The European Commission having regard to Directive 2000/14/EC of the European Parliament and of the Council of May 8, 2000. on the approximation of the laws of the Member States relating to the noise emission in the environment by equipment for use outdoors ^[1] changed the methods for testing noise of outdoor equipment[2].

Commission Delegated Regulation (EU) 2024/1208 of November 16, 2023. amending Directive 2000/14/EC (hereinafter: the New Regulation) will become effective on May 22, 2025. ^[3] . The regulation in question is binding in its entirety and should be directly applicable in all member states.

Regarding the New Ordinance, The national Decree of the Minister of Economy of December 21, 2005 will also be amended. on essential requirements for equipment used outdoors with regard to noise emission into the environment. The existing Annex IV of the National Ordinance and all references to that Annex are to be changed to direct references to the New Ordinance.

Lack of certification or exceeding standards = potential problems for the entrepreneur

As indicated in the preamble of the New Regulation:

The above means that after May 22, 2025 (the effective date of the New Ordinance), all equipment that met the previously applicable certification requirements (met the technical standards) for noise will not suddenly disappear from the market; however, as of that date, the “new” devices being introduced to the market – as a rule – will already have to remain in compliance with the standards described according to the new methods defined by the New Ordinance.

A thorough discussion of the new methods of testing outdoor equipment noise for specific equipment is basically pointless here – as I have already indicated, the regulations in question are “technical” and, as a rule, remain very specific in their description (they provide a kind of instruction on how to test the level of noise emissions at a specific specific operation of the device or specify specific arithmetic formulas, based on which the certification test is carried out).

However, it remains important to emphasize how important the very issue of certification (i.e., establishing compliance with standards) is to both manufacturers and distributors, importers or sales representatives of these groups.

First, it is legal and “safe” for a manufacturer to place a device on the market or put it into service only after meeting the requirements of the New Ordinance (and the corresponding new national regulation).

As a rule, equipment that is suitable for use outside the premises and generates noise should have a declaration of conformity issued in advance (i.e. before it is placed on the market). This is a statement by the manufacturer or its authorized representative stating (under its sole responsibility) that the product complies with the essential requirements. In the present case, this is the so-called EC Declaration of Conformity.

However, a unilateral statement by the manufacturer alone is not sufficient. The conformity assessment process involves manufacturers, their authorized representatives, importers, certification bodies, inspection bodies and laboratories[4].

The so-called. Notified bodies verify the device manufacturer’s or its authorized representative’s declared compliance of the device’s manufacturing process with the content of the regulations and technical documentation – and in certain cases may also carry out additional inspections at such a manufacturer.

Equipment placed on the market or put into service must meet the requirements set forth in the[national regulation, which captures the methods and procedures introduced by EU regulations], and must have an EC declaration of conformity and be subject to CE marking and marking of the guaranteed sound power level.

In turn, the CE marking and the marking of the guaranteed sound power level, moreover, should be legible and unambiguous and permanently affixed to a visible part of the equipment.

The consequences of failing to ensure a product’s compliance with certification standards under EU regulations (which are transposed by national laws and regulations) can be very severe – after all, the Law of August 30, 2002 already states. on the conformity assessment system provides:

• The possibility of limiting the availability of a product that does not meet certification standards,
• the withdrawal of such a product from the market in general,
• and even (in extreme situations, when the product poses a serious threat) the destruction of such a product – usually at the expense of a party to the proceedings (therefore – as a rule – the manufacturer).

In addition, there are criminal provisions in the area under discussion. It should be emphasized that:

• who places on the market or puts into service a product that does not comply with the essential requirements or
• places a conformity marking on a product that does not meet the essential or specific requirements or for which the manufacturer or its authorized representative has not issued a declaration of conformity
• or places on a product a mark similar to the conformity marking that may mislead the user, consumer or distributor of that product – shall be subject to a fine.

Manufacturers of equipment or machinery affected by the legislative changes should approach the subject very meticulously – because it may turn out that even with the use of innovative technologies, new equipment or machinery will be subjected to inspections – and in the situation of non-compliance with Community regulations – will prove at least problematic or even impossible (unauthorized) to (legally) distribute.

It is worth noting that it is generally permissible to present at fairs, exhibitions and other shows equipment that do not meet the requirements specified in the regulation, if a notice will be placed in a visible place that the device does not meet these requirements and will not be placed on the market or put into operation by the manufacturer of the device or its authorized representative until brought into compliance with the requirements specified in normative acts.

However, it is obvious to any rational entrepreneur, let alone a professional attorney engaged in servicing or advising the broader business community, that the essence of doing business is not to be able to “show” new technologies or products themselves – but to show them in order to advertise and encouragetheir use by potential buyers. Hence, the exception in question is not – at least in my opinion – crucial.

Entrepreneur prepared and wise before harm

The new Ordinance is available at the following link: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:32024R1208&qid=1714779368516.

As a legal advisor serving the broader business community, however, I encourage everyone affected or likely to be affected by the changes to structurally prepare for the implementation of the new certification methodologies, standards and rules now.

I would add, by the way, that the greater the participation of professional attorneys in this process – the greater will be the certainty of the entrepreneur in the context of security or even bankability of the implementation of specific solutions for the future.

After all, the basic principle adhered to by a rational entrepreneur is that the entrepreneur should be aware of the risks in the introduction of the product before the damage, and not unknowingly remain “wise after the damage“.

[1] https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:32024R1208&qid=1714779368516#ntr1-L_202401208PL.000101-E0001

[2] https://www.gov.pl/web/rozwoj-technologia/unijne-zmiany-dot-emisji-halasu-do-srodowiska-przez-urzadzenia-uzywane-na-zewnatrz-pomieszczen

[3] https:// eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:32024R1208&qid=1714779368516

[4] See. also art. 4 of the Law of August 30, 2002. On the conformity assessment system (Dz.U. 2002 No. 166 item 1360)