Context card
Grandfathering covers the design, never the file
Does grandfathering protect an existing plant and its documentation?
The short answer
German operational safety law grants no general grandfathering for work equipment: under § 3(7) BetrSichV the risk assessment must be reviewed regularly, taking the state of the art into account, and the measures adapted where needed. An older machine may keep its original design if it can still be used safely, but its documents enjoy no protection at all: a risk assessment or zone drawing that was never updated describes a plant that no longer exists.
For: Plant operators, occupational safety specialists, inspectors and technical writers of plant documentation
Key points
- § 3(7) BetrSichV: regular review of the risk assessment, considering the state of the art; update without delay after safety-relevant changes.
- EmpfBS 1114 separates the state of the art at placing on the market from the state of the art in use.
- A new product standard does not automatically require retrofitting, but may require new technical, organizational or personal measures.
- Recommendations (EmpfBS) carry no presumption effect under § 4(3) BetrSichV, unlike Technical Rules (TRBS).
- Older commentaries cite the 2002 numbering: design requirements were then in § 7, today in § 5; the risk assessment stayed in § 3.
The context
The plant, not the file
The popular idea of grandfathering is that a plant may keep running because it complied when it was built. The BetrSichV does not grant that: the employer keeps the risk assessment current throughout the period of use. What an older machine may keep is its original design, provided it can be used safely by the state of the art in use, if necessary with additional measures — see adaptation to the state of the art.
The documentation has no protection of its own. A plant extended, rebuilt or rearranged since its documents were written needs updated documents, as with as-built documentation. For explosive atmospheres this is the explosion protection document.
Recommendations and rules
EmpfBS 1114 is the most useful text here, because it separates the state of the art at placing on the market from the state of the art in use. It is a recommendation: unlike a Technical Rule it carries no presumption effect. It helps to justify a decision; it does not replace the justification.
Check the section numbers
Much of the literature on grandfathering dates from before the 2015 recast. The design requirements for work equipment moved from § 7 to § 5; the risk assessment kept § 3, so references to § 3(7) still hold. The result has not changed, the citations have.
Questions readers ask next
- Must an old machine meet today's product standards?
- Not automatically. It must be safe to use by the current state of the art; that can be reached by additional measures without changing the design. The risk assessment decides and documents it.
- Who decides that a document needs updating?
- The employer, as part of the risk assessment. In practice the check should be a fixed step of every conversion, with a named person responsible.
Sources
- Betriebssicherheitsverordnung (BetrSichV) § 3 — Bundesministerium der Justiz
- EmpfBS 1114 Anpassung an den Stand der Technik bei der Verwendung von Arbeitsmitteln — BAuA, March 26, 2018
Review log and changes
Every context card is checked against its sources before it is published, and again whenever it changes; the date under the byline is the last review. Corrections (something was wrong) and additions (something was missing) are logged below with date and time (Berlin time). Typos, formatting and link fixes are not listed.
Reviewed
Corrections and additions
Every correction and addition to this card, with date and time (Berlin time).
Correction
Corrected the wording of § 3(7) BetrSichV: the risk assessment must be reviewed regularly, and the state of the art must be taken into account. The ordinance does not say “regularly against the state of the art”.