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Definitive paperwork required to purchase a Widebeam for safety compliance


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19 minutes ago, David Mack said:

It follows that a distributor must be acting in the course of a commercial activity. So in the case of a private sale there is no distributor, and thus the distributor obligations do not apply. In the case of a broker sale, the point hinges on whether the boat is being "made available" by the broker (who is involved in a commercial activity) or the vendor (who usually is not).

 

As defined a 'distributor' can be an individual person, if he is selling his own boat then it is a commercial transaction (although there does not need to be a commercial transaction - as in your post) he is exchanging his boat for cash. 

 

19 minutes ago, David Mack said:

in the course of a commercial activity, whether in return for payment or free of charge

 

I believe there is no doubt that a Broker is making the boat available on the market - he is advertising it, promoting it, usually storing it, is taking the full payment for the boat and then taking his commision from the sale before passing the remainder to the 'owner'.

 

My interpretation is different to yours and until someone asks the RCR department in the Government, or, The brokers associations if they believe they are distributors or not and why they believe that there is nothing more we can do.

 

Edit to add :

Lawinsider.com quotes :

 

making available on the market means the holding for the purpose of sale within the Union, including offering for sale or for any other form of transfer, and the sale,

 

The term crops up in almost every EU directive from perfume, to tea  to boats.

I'd suggest that as a broker is 'offering for sale' etc etc

When you investigate "form of transfer" it refers to a bill of sale, which, in my experience is undertaken by the broker with both parties signing.

 

I'll leave it at that unless any new evidence comes to light.

Edited by Alan de Enfield
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1 hour ago, Alan de Enfield said:

It really is as simple as typing into google "Guidance on the regulations as they apply to craft being supplied in or into Great Britain"

 

and you'll get Recreational Craft Regulations 2017: Great Britain - GOV.UK (www.gov.uk) 

Thank you. Your various references to the 2022 updated regulations had me thinking we were at cross purposes. The link you have posted confirms that the RCR has not changed since 2017, and that it's interpretation has only been modified in respect of Brexit changes - references to the EU market and CE marking are now to be interpreted as references to the GB market and UKCA marking (with transitional provisions).

But that document is only guidance. The law is still as set out in the regulations.

It is also clear that the guidance is primarily aimed at the manufacture, import and sale of new craft. The introduction says "This Guide is for businesses placing recreational craft on the market in Great Britain...  The 2017 Regulations set out the requirements that must be met before products can be placed on the GB market. The purpose of the legislation is to ensure safe products are placed on the GB market by requiring manufacturers to show how their products meet the ‘essential requirements’."

Note all the references to "placing on the market" which is a one-off initial action, with no reference to "making available".

 

 

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24 minutes ago, Alan de Enfield said:

As defined a 'distributor' can be an individual person, if he is selling his own boat then it is a commercial transaction

The definition says "in the course of a commercial activity". I believe this should be interpreted as in the couse of an ongoing business, rather than a single transaction (for money) by a private owner. A private owner selling is not a distributor.

But the webuyanyboat.com type operators are selling in the course of business, as are hire companies disposing of their older craft, or other company-owned boats. All of these may well count as "making available" in the course of a business activity, and thus may be subject to the distributor obligations.

 

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5 minutes ago, David Mack said:

The definition says "in the course of a commercial activity". I believe this should be interpreted as in the couse of an ongoing business, rather than a single transaction (for money) by a private owner. A private owner selling is not a distributor.

But the webuyanyboat.com type operators are selling in the course of business, as are hire companies disposing of their older craft, or other company-owned boats. All of these may well count as "making available" in the course of a business activity, and thus may be subject to the distributor obligations.

 

 

I am not as 'comfortable' with a natural person being a 'distributor (Post Brexit Recreational Craft Regulations 2017: Guidance (GB) • Distributor – Any person in the GB supply chain, other than the manufacturer or the importer, who makes products available on the GB market.) but read it as if they 'could be' - particularly as according to 'lawinsider.com' a commercial activity is defined as including a single transaction, and a commercial activity is achieved by 'advertising the product' and 'demonstrating' the product :

 

Commercial activity means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.

 

Commercial activity means (a) all advertising, sales, purchases, or agreements for the sale or purchase of goods or services; (b) all giving, demonstration, or solicitation for the purchase or sale of goods or services provided by a person, group of persons, or other entity;

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The elephant in the room here is not what the regulations say or whether they apply to the supply and sale of new boats -- which I'm sure they do -- but whether and how they apply to the resale of secondhand boats, especially ones which may well predate the regulations as they stand today.

 

I expect it's similar to cars; new ones being sold today have to be certified to meet strict emissions and safety regulations, but that doesn't stop older ones which don't being resold perfectly legally.

 

It would perhaps be more helpful if this issue was addressed than repetitive posting of regulations and arguing on the precise meaning of words... 😉

Edited by IanD
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10 minutes ago, IanD said:

The elephant in the room here is not what the regulations say or whether they apply to the supply and sale of new boats -- which I'm sure they do -- but whether and how they apply to the resale of secondhand boats, especially ones which may well predate the regulations as they stand today.

 

I expect it's similar to cars; new ones being sold today have to be certified to meet strict emissions and safety regulations, but that doesn't stop older ones which don't being resold perfectly legally.

 

It would perhaps be more helpful if this issue was addressed than repetitive posting of regulations and arguing on the precise meaning of words... 😉

 

 

It has been addressed already, (in answer to the same question from David Mack and Martyn G on page 4)

 

Post 1998 Boats (RCD required) 

Boats 'already in circulation' do not have to be 'bought up to latest standards', but they do have to comply with the standards of the time when they were manufactured - and - that includes still having the required documents available. By the letter of the regulations, if there is no documentation confirming it is RCD complaint, then it should be subjected to a PCA.

 

I earlier provided a link and deatils to what paperwork, boat markings and 'information plates' are considered to be part of the RCD

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48 minutes ago, Alan de Enfield said:

 

Commercial activity means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.

 

Commercial activity means (a) all advertising, sales, purchases, or agreements for the sale or purchase of goods or services; (b) all giving, demonstration, or solicitation for the purchase or sale of goods or services provided by a person, group of persons, or other entity;

 

 

Does it. Nothing else?

 

I'd suggest a fundamental purpose of any commercial activity is to make a profit. The boater flogging his ten year old boat on The Duck is doing it to get rid of it, not for the purpose of of making a profit. Its hard to argue therefore, that owner selling his second hand boat is engaging in commercial activity. Whether or not he subcontracts the work out to a broker.

 

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This has come up before on this thread but the legal definition of a distributor is someone that buys and resells a product and he will then will assume full responsibility for the validity of any CE marking as is described in the various references quoted in the thread. 
 

The legal definition of an agent is an adviser, usually to the seller, who does not take any part in the commercial transaction. An agent would have no responsibility for the validity of the CE marking in any other field e.g. Machinery Directive. Only the seller would be responsible. 

 

Whether a broker is a distributor or an agent depends on their agreement with the seller and the documentation used for the sale. As I have never bought or sold through a broker it would be interesting to see some broker documentation.
 

See https://www.aqueductmarina.co.uk/wp-content/uploads/Vendor-Agreement-Contract-.pdf

The broker makes it very clear they are only acting as agent.

Edited by PaulD
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29 minutes ago, Alan de Enfield said:

 

 

It has been addressed already, (in answer to the same question from David Mack and Martyn G on page 4)

 

Post 1998 Boats (RCD required) 

Boats 'already in circulation' do not have to be 'bought up to latest standards', but they do have to comply with the standards of the time when they were manufactured - and - that includes still having the required documents available. By the letter of the regulations, if there is no documentation confirming it is RCD complaint, then it should be subjected to a PCA.

 

I earlier provided a link and deatils to what paperwork, boat markings and 'information plates' are considered to be part of the RCD

Thanks Alan. What about pre-1998 boats?

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39 minutes ago, PaulD said:

The legal definition of an agent is an adviser, usually to the seller, who does not take any part in the commercial transaction. An agent would have no responsibility for the validity of the CE marking in any other field e.g. Machinery Directive. Only the seller would be responsible. 

 

All very nice but there is no mention of an "agent" in the Directive, there is a Manufacturer, and  Importer, and anyone selse in the supply chain is classified as a Distributor

 

There is another classification which can be occasonally used and that is "Authorised Representative" who can represent a manufacturer, and are  reqired to comply with all of the RCD requirements relevant to the duties they are performing for the manufacturer.

 

Can a broker be an 'authorised representative ' ?

 

Obligations of authorised representatives

Manufacturers are able to appoint authorised representatives to perform certain tasks on their behalf. Mandated authorised representatives for the GB market can be based in GB or Northern Ireland but, after 1 January 2021, cannot be based outside the UK. A manufacturer can only mandate an authorised representative established in the UK, under the 2017 Regulations as they apply in GB. No GB-based authorised representatives are recognised under EU law. This means GB based authorised representatives cannot carry out tasks on the manufacturer’s behalf for products being placed on the Northern Ireland and EEA markets. Therefore, a GB manufacturer selling products to the EEA or into Northern Ireland, who wishes to appoint an authorised representative to carry out tasks for them in respect of those products, must appoint an authorised representative established in Northern Ireland or the EEA. An authorised representative must comply with all the duties imposed on the manufacturer under the 2017 Regulations that they are appointed by the manufacturer to perform. A manufacturer remains responsible for the proper performance of any obligations the authorised representative performs on their behalf. Any references in the 2017 Regulations to the manufacturer are to be taken to include a reference to the authorised representative including in relation to penalties for failure to comply with those duties.

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8 minutes ago, Alan de Enfield said:

 

All very nice but there is no mention of an "agent" in the Directive, there is a Manufacturer, and  Importer, and anyone selse in the supply chain is classified as a Distributor

 

There is another classification which can be occasonally used and that is "Authorised Representative" who can represent a manufacturer, and are  reqired to comply with all of the RCD requirements relevant to the duties they are performing for the manufacturer.

 

Can a broker be an 'authorised representative ' ?

 

Obligations of authorised representatives

Manufacturers are able to appoint authorised representatives to perform certain tasks on their behalf. Mandated authorised representatives for the GB market can be based in GB or Northern Ireland but, after 1 January 2021, cannot be based outside the UK. A manufacturer can only mandate an authorised representative established in the UK, under the 2017 Regulations as they apply in GB. No GB-based authorised representatives are recognised under EU law. This means GB based authorised representatives cannot carry out tasks on the manufacturer’s behalf for products being placed on the Northern Ireland and EEA markets. Therefore, a GB manufacturer selling products to the EEA or into Northern Ireland, who wishes to appoint an authorised representative to carry out tasks for them in respect of those products, must appoint an authorised representative established in Northern Ireland or the EEA. An authorised representative must comply with all the duties imposed on the manufacturer under the 2017 Regulations that they are appointed by the manufacturer to perform. A manufacturer remains responsible for the proper performance of any obligations the authorised representative performs on their behalf. Any references in the 2017 Regulations to the manufacturer are to be taken to include a reference to the authorised representative including in relation to penalties for failure to comply with those duties.

An authorised representative is appointed to obtain CE notified body certification and hold documentation in the UK. This legislation has no connection to the responsibilities of agents and distributors.


An agent is not mentioned in RCD / RCR as they have no responsibilities. 

Edited by PaulD
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4 minutes ago, PaulD said:

An authorised representative is appointed to obtain CE notified body certification and hold documentation in the UK. This legislation has no connection to the responsibilities of agents and distributors.


An agent is not mentioned in RCD / RCR as they have no responsibilities. 

 

An authorised representative is engaged to do 'anything' that the manufacturer tasks them to do - it is not limited to the two function you suggest :

 

‘authorised representative’ means any natural or legal person established within the Union who has received a written mandate from the manufacturer to act on his behalf in relation to specified tasks;

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3 hours ago, Alan de Enfield said:

 

As defined a 'distributor' can be an individual person, if he is selling his own boat then it is a commercial transaction (although there does not need to be a commercial transaction - as in your post) he is exchanging his boat for cash. 

 

 

I believe there is no doubt that a Broker is making the boat available on the market - he is advertising it, promoting it, usually storing it, is taking the full payment for the boat and then taking his commision from the sale before passing the remainder to the 'owner'.

 

My interpretation is different to yours and until someone asks the RCR department in the Government, or, The brokers associations if they believe they are distributors or not and why they believe that there is nothing more we can do.

 

So... what you are now saying is that you dont really know for sure. Previously you were holding yourself out as knowing for certain, and you kept producing/repeating stuff in an attempt to show that :( 

 

 

3 hours ago, Alan de Enfield said:

I'll leave it at that unless any new evidence comes to light.

 

What a good decision :)

 

 

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OK  whatever. You are quoting random Google extracts from legislation that has no relevance to everyone’s questions and concerns and just stressing everyone out. 
 

An Authorised Representative is the term used for a UK based company which will do UKCA certification for foreign companies and CE certification for UK companies.

 

I repeat that an agent has no responsibility for CE validity and this seems to include most brokers.

 

 

 

 

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1 hour ago, MtB said:

 

 

Does it. Nothing else?

 

I'd suggest a fundamental purpose of any commercial activity is to make a profit. The boater flogging his ten year old boat on The Duck is doing it to get rid of it, not for the purpose of of making a profit. Its hard to argue therefore, that owner selling his second hand boat is engaging in commercial activity. Whether or not he subcontracts the work out to a broker.

 

 

MMM? but lawinsider.com says ...............

25 minutes ago, Alan de Enfield said:

 

An authorised representative is engaged to do 'anything' that the manufacturer tasks them to do - it is not limited to the two function you suggest :

 

‘authorised representative’ means any natural or legal person established within the Union who has received a written mandate from the manufacturer to act on his behalf in relation to specified tasks;

 

Not really relevant to second hand sales, whether by an owner directly, or with the help of a broker.

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23 minutes ago, Alan de Enfield said:

 

You mean the sort of 'sales people' that sell things ?

I mean the sort of sales person who is  not qualified to determine whether a boat meets any standards.

 

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1 hour ago, Alan de Enfield said:

 

authorised representative’ means any natural or legal person established within the Union who has received a written mandate from the manufacturer to act on his behalf in relation to specified tasks;

 

A broker selling a used boat would have no such mandate from the manufacturer, so is not an authorised representative.

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4 hours ago, Alan de Enfield said:

particularly as according to 'lawinsider.com' a commercial activity is defined as including a single transaction, and a commercial activity is achieved by 'advertising the product' and 'demonstrating' the product :

On that basis someone selling a boat in the course of business and an individual boat owner selling his personal craft would both be equally responsible as 'distributors. If that were the case there would then be no need to qualify the definition as only covering sales in the course of a commercial activity. The fact that the qualification is included in the RCR definition is a clear indication that the legal obligation is only there for someone acting in the course of business.

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2 minutes ago, David Mack said:

On that basis someone selling a boat in the course of business and an individual boat owner selling his personal craft would both be equally responsible as 'distributors. If that were the case there would then be no need to qualify the definition as only covering sales in the course of a commercial activity. The fact that the qualification is included in the RCR definition is a clear indication that the legal obligation is only there for someone acting in the course of business.

 

The RCR definitions also point out that a distributor can be a 'legal person' (company) or a 'natural person' (an individul human).

 

As I said earlier  I'm not so comfortable with an 'individual human' being a distributor but that is how it can be read.

 

If it were to mean a 'self-employed' (individual) person I'd have thought that would come under a 'legal person' - as you say - selling as his business.

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4 minutes ago, David Mack said:

On that basis someone selling a boat in the course of business and an individual boat owner selling his personal craft would both be equally responsible as 'distributors. If that were the case there would then be no need to qualify the definition as only covering sales in the course of a commercial activity. The fact that the qualification is included in the RCR definition is a clear indication that the legal obligation is only there for someone acting in the course of business.

 

Fair enough, but that adds quite a bit of support to the thinking that brokers are distributors for the purpose of the regulations.

 

 

1 minute ago, Alan de Enfield said:

If it were to mean a 'self-employed' (individual) person I'd have thought that would come under a 'legal person' - as you say - selling as his business.

 

No, that's "a natural person acting by way of their trade" in various other laws and tax rules.

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4 minutes ago, TheBiscuits said:

 

No, that's "a natural person acting by way of their trade" in various other laws and tax rules.

 

Thankyou, so, I wonder, when they say a 'natural person' can be a distributor do they mean (simply) a 'natural person', or "a natural person acting by way of their trade"

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