# C_2007096EN.01000201.xml

| 28.4.2007 | EN | Official Journal of the European Union | C 96/2 |
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28.4.2007

EN

Official Journal of the European Union

C 96/2

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Judgment of the Court (Grand Chamber) of 17 April 2007 (reference for a preliminary ruling from the Tampereen käräjäoikeus, Finland) — AGM-COS.MET Srl v Suomen valtio, Tarmo Lehtinen

(Case C-470/03) (1)

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(Directive 98/37/EC - Measures having equivalent effect - Machinery presumed to comply with Directive 98/37/EC - Criticism expressed publicly by a State official)

(2007/C 96/02)

Language of the case: Finnish

Referring court

Tampereen käräjäoikeus

Parties to the main proceedings

Applicant: AGM-COS.MET Srl

Applicant:

Defendants: Suomen valtio, Tarmo Lehtinen

Defendants:

Re:

Reference for a preliminary ruling — Tampereen käräjäoikeus — Interpretation of Article 28 EC and Directive 98/37/EC of the European Parliament and of the Council of 22 June 1998 on the approximation of the laws of the Member States relating to machinery (OJ 1998 L 207, p. 1) — Measures having equivalent effect — Criticism of car lifts imported from another Member State expressed in public by a State official — Machines not compliant with a harmonised standard — Responsibility of the State for the actions of an official

Operative part of the judgment

| 1. | Statements which, by reason of their form and circumstances, give the persons to whom they are addressed the impression that they are official positions taken by the State, not personal opinions of the official, are attributable to the State. The decisive factor for the statements of an official to be attributed to the State is whether the persons to whom those statements are addressed can reasonably suppose, in the given context, that they are positions taken by the official with the authority of his office. To the extent that they are attributable to the State, statements by an official describing machinery certified as conforming to Directive 98/37/EC of the European Parliament and the Council of 22 June 1998 on the approximation of the laws of the Member States relating to machinery as contrary to the relevant harmonised standard and dangerous thus constitute a breach of Article 4(1) of that directive. |
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1.

Statements which, by reason of their form and circumstances, give the persons to whom they are addressed the impression that they are official positions taken by the State, not personal opinions of the official, are attributable to the State. The decisive factor for the statements of an official to be attributed to the State is whether the persons to whom those statements are addressed can reasonably suppose, in the given context, that they are positions taken by the official with the authority of his office. To the extent that they are attributable to the State, statements by an official describing machinery certified as conforming to Directive 98/37/EC of the European Parliament and the Council of 22 June 1998 on the approximation of the laws of the Member States relating to machinery as contrary to the relevant harmonised standard and dangerous thus constitute a breach of Article 4(1) of that directive.

| 2. | In circumstances such as those at issue in the main proceedings, a breach of Article 4(1) of Directive 98/37 occasioned by the conduct of an official, in so far as it is attributable to the official's Member State, cannot be justified either on the basis of the objective of protection of health or on the basis of the freedom of expression of officials. |
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2.

In circumstances such as those at issue in the main proceedings, a breach of Article 4(1) of Directive 98/37 occasioned by the conduct of an official, in so far as it is attributable to the official's Member State, cannot be justified either on the basis of the objective of protection of health or on the basis of the freedom of expression of officials.

| 3. | Article 4(1) of Directive 98/37 must be interpreted as meaning that, first, it confers rights on individuals and, second, it leaves the Member States no discretion in this case as regards machinery that complies with the directive or is presumed to do so. A failure to comply with that provision as a result of statements made by an official, assuming that they are attributable to the Member State, constitutes a sufficiently serious breach of Community law for the Member State to incur liability. |
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3.

Article 4(1) of Directive 98/37 must be interpreted as meaning that, first, it confers rights on individuals and, second, it leaves the Member States no discretion in this case as regards machinery that complies with the directive or is presumed to do so. A failure to comply with that provision as a result of statements made by an official, assuming that they are attributable to the Member State, constitutes a sufficiently serious breach of Community law for the Member State to incur liability.

| 4. | Community law does not preclude specific conditions from being laid down by the domestic law of a Member State with reference to compensation for damage other than damage to persons or property, provided that those conditions are not framed in such a way as to make it impossible or excessively difficult in practice to obtain compensation for loss or damage resulting from a breach of Community law. |
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4.

Community law does not preclude specific conditions from being laid down by the domestic law of a Member State with reference to compensation for damage other than damage to persons or property, provided that those conditions are not framed in such a way as to make it impossible or excessively difficult in practice to obtain compensation for loss or damage resulting from a breach of Community law.

| 5. | In the event of a breach of Community law, Community law does not preclude an official from being held liable in addition to the Member State, but does not require this. |
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5.

In the event of a breach of Community law, Community law does not preclude an official from being held liable in addition to the Member State, but does not require this.

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(1)  OJ C 35, 7.2.2004.

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