The point at which RCD Compliance becomes a legal requirement

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Confusion within the Marine industry means that some may believe RCD compliance for an imported recreational craft is only required when the craft is sold on.  Here, with reference to definitions and text within the Directive, we show this is not the case and that if it's reasonable to conclude the craft is 'in use', it must also at this point be RCD compliant.

The Recreational Craft Directive uses two key phrases when talking about the point at which compliance becomes a requirement.  These are:

  • Placing on the market
  • Putting into Service

Some will say that owning a craft without proof of RCD compliance is not illegal and in fact this is true.  For us in the UK this means that a craft can enter the UK without having been assessed for RCD compliance (via Post Construction Assessment, PCA).  

This approach exists in Holland also, but for all other EEA Countries the authorities normally insist on evidence of RCD compliance at the point of entry.

This apparent exemption continues whilst the boat is in transit or storage, but as soon as it’s put in the water it must be compliant, as we shall see.

Going back to our two key phrases, let’s deal with each in turn, using definitions and additional text taken directly from  the Directive.

Placing on the Market

The RCD definition is:

"placing on the market" means the first making available of a product on the Union Market

Here’s the relevant text taken from the Directive:

"This means the first making available, against payment or free of charge, of a product covered by the directive, on the EEA market, for the purpose of distribution and/or use in the EEA.

The concept of ‘placing on the market’ determines the moment when a product covered by the directive passes for the first time from the manufacturing stage to the market of the EEA or the importing stage from a third country with a view to its distribution and/or use in the EEA. Since placing on the market refers only to the first instance of making the product available on the EEA market with a view to distribution or use within the Community, the directive only covers new products manufactured in the EEA and new or used products imported from a third country.

Boats not falling within the scope of the directive because they were originally designed and built for purposes other than sports or leisure but which are afterwards made available on the market for sports or leisure purposes are also covered by the directive.

Placing on the market refers to each individual product which physically exists and is complete (except those specifically referred to in the directive) and is covered by the directive, regardless of the time or place of manufacture and whether it was made as an individual unit or in series.

The concept of placing on the market must be clearly distinguished from sale. Placing on the market relates to the physical availability of the product regardless of the legal aspects of the act of transfer (loan, gift, sale or hire). Thus, manufacturer’s stock, wherever physically situated after 16 June 1998 where no transfer has taken place, will be required to comply with the requirements of the directive when placed on the market."

Logically this implies that for a craft to be put up for sale within the EEA it must be RCD Compliant at the point it is advertsied and not once a buyer has been found or the sales process completed.  Fro a practical standpoint most Brokers will argue that their market is International and thus it would be unfair to have to go through the compliance process if a craft is subsequently sold outside the EEA. This appears common sense, but if relying on this, the onus is on both the Broker and owner to ensure any sale to a buyer within the EEA cannot be concluded until the RCD compliance process is complete.

Putting into Service

The RCD definition is:

“putting into service” means the first use of a product covered by the Directive in the Union by its end user

Here’s the relevant text taken from the Directive:

“This means the first use of a product covered by the directive in the EEA territory by its end user. A product which is ready for use at the moment of placing on the market and which does not have to be assembled, and where distribution or transport would make no difference to the integrity or performance of the product, is considered to have been put into service as soon as it is placed on the market.

The above does not apply when it is reasonably possible to determine when the boat was first used for its intended purpose, floated, became operational, etc.

If a product is manufactured or imported from a third country for the manufacturer’s or importer’s own use, there is confusion between placing on the market and putting into service. The obligation of conformity with the directive arises at the time of the first use”.

In essence what the first paragraph states is that for some products (eg PWC) the point at which the craft is put into service naturally occurs after a sale, particularly for new craft.  As such the requirement for RCD compliance due to be ‘placing on the market’ precedes that of ‘putting into service’.

However, the second paragraph makes clear that this sequence does not apply where it is possible to determine that a craft is in use prior to being 'placed on the market' and makes specific reference to ‘floated’ or ‘operational’ as being an examples of this.  Thus a craft in a marina berth must by definition be considered ‘in use’ whether it is being ‘placed on the market’ of not

In contrast, if a craft is held in storage (eg in a yard or sales room) it is not in a state where it can be used for its intended purpose and is thus not ‘operational’.   Logically it may not yet have been ‘put into service’.  If this craft is then put up for sale, this would be acceptable even if the craft were not RCD Compliant subject to the restrictions under 'placing on the market' above.

But the key point again is when a boat is placed in the water or has previously been used by the seller (importer) then the craft has been 'put into service' and must therefore at this point be RCD compliant.

Conclusions

Any boat advertsied in an operational state (eg in a marina berth) must be RCD compliant ,as irrespective of when and how it is 'placed on the market'; it has clearly already been 'placed into service'.  To advertise such a craft when not RCD compliant is thus illegal.

For a Broker to legally market a craft which is not RCD compliant  they must be confident that it had not been previously 'put into service'.  This may be the case for craft recently imported from utside the EEA for the purpose of resale, but will not be for craft imported some time ago and used by the original importers prior to being placed with the Broker.

As a last thought, I recently asked a Marine Insurance Underwriter about whether a claim would be upheld where a boat was found to be non-compiant .  His response was that "Most of ours (policies) insist on EU standards being complied with."  So in the event where a craft in your Marina, not yet RCD compliant but in use, causes damage, there is scope for the insurers to challenge any claim on the basis of non-compliance.  Food for thought.....

Written By: Rowland Smith

Rowland Smith is a Naval Architect and founder of Gablemarine.  His industry experience includes Lloyds Register, British Shipbuilders Hydrodynamics Ltd, Cammell Lairds, BP Shipping Ltd & Conoco.  He has a degree in Naval Architecture, a Diploma in Marketing (CIM) and an MBA (Cranfield School of Management).  He has also held Director level positions in a number of technology and engineering companies, including CEproof, which provides RCD compliance software to builders. 

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