# C_2021338EN.01002302.xml

| 23.8.2021 | EN | Official Journal of the European Union | C 338/23 |
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23.8.2021

EN

Official Journal of the European Union

C 338/23

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Action brought on 21 June 2021 — Germany v Commission

(Case T-349/21)

(2021/C 338/31)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: J. Möller and R. Kanitz, acting as Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision (EU) 2021/534 of 24 March 2021 determining under Article 39(1) of Directive 2014/33/EU of the European Parliament and of the Council whether a measure taken by Germany to prohibit the placing on the market of a lift model manufactured by Orona is justified or not; (1) |
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annul Commission Decision (EU) 2021/534 of 24 March 2021 determining under Article 39(1) of Directive 2014/33/EU of the European Parliament and of the Council whether a measure taken by Germany to prohibit the placing on the market of a lift model manufactured by Orona is justified or not; (1)

| — | order the Commission to bear the costs of the proceedings. |
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order the Commission to bear the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

| 1. | First plea in law, alleging infringement of Section 2.2, Annex I to Directive 95/16/EC in conjunction with harmonised standard EN 81-1 in so far as the Commission misinterpreted the scope of the requirement of the vertical distance between the car roof and the well ceiling






  — | The Commission misinterpreted the scope of the vertical distance between the car roof and the well ceiling which harmonised standard EN 81-1 prescribes in its original version and even emphasises in its updated version (EN 81-20). First, the contested decision essentially errs as regards the measurement of the minimum vertical distance. In the Commission’s view, for the assessment of essential health and safety requirements in accordance with Directive 95/16/EC it is, principally, not the vertical distance that is decisive but the volume of the refuge above the car. In addition, the Commission erred in comparing the requirements in respect of refuges and free spaces in the headroom with those in the pit. |
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1.

First plea in law, alleging infringement of Section 2.2, Annex I to Directive 95/16/EC in conjunction with harmonised standard EN 81-1 in so far as the Commission misinterpreted the scope of the requirement of the vertical distance between the car roof and the well ceiling

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The Commission misinterpreted the scope of the vertical distance between the car roof and the well ceiling which harmonised standard EN 81-1 prescribes in its original version and even emphasises in its updated version (EN 81-20). First, the contested decision essentially errs as regards the measurement of the minimum vertical distance. In the Commission’s view, for the assessment of essential health and safety requirements in accordance with Directive 95/16/EC it is, principally, not the vertical distance that is decisive but the volume of the refuge above the car. In addition, the Commission erred in comparing the requirements in respect of refuges and free spaces in the headroom with those in the pit.

| 2. | Second plea in law, alleging infringement of Section 2.2, Annex I to Directive 95/16/EC in conjunction with harmonised standard EN 81-1 in so far as the Commission erred in establishing the relevant accident scenarios for the assessment






  — | The Commission incorrectly assessed the requirements under Section 2.2, Annex I to Directive 95/16/EC concerning prevention of the risk of crushing by merely referring, in recital 55 of the contested decision, to the failure of the redundant brake as a relevant accident scenario. |
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2.

Second plea in law, alleging infringement of Section 2.2, Annex I to Directive 95/16/EC in conjunction with harmonised standard EN 81-1 in so far as the Commission erred in establishing the relevant accident scenarios for the assessment

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The Commission incorrectly assessed the requirements under Section 2.2, Annex I to Directive 95/16/EC concerning prevention of the risk of crushing by merely referring, in recital 55 of the contested decision, to the failure of the redundant brake as a relevant accident scenario.

| 3. | Third plea in law, alleging incorrect findings of fact in so far as the Commission failed to have regard to the significance of the time necessary to assume a safe position and to the risk of uncontrolled upward movements of the car






  — | In recitals 55 to 57 of the contested decision, the Commission based its overall assessment on incorrect assumptions concerning the danger and probability of uncontrolled upward movements of the car. |
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3.

Third plea in law, alleging incorrect findings of fact in so far as the Commission failed to have regard to the significance of the time necessary to assume a safe position and to the risk of uncontrolled upward movements of the car

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In recitals 55 to 57 of the contested decision, the Commission based its overall assessment on incorrect assumptions concerning the danger and probability of uncontrolled upward movements of the car.

| 4. | Fourth plea in law, alleging incorrect findings and assessment of fact in so far as the Commission adopted a misrepresentation derived from the Conformance study






  — | The Commission based its decision on an incorrect overall comparison derived from the Conformance study. |
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4.

Fourth plea in law, alleging incorrect findings and assessment of fact in so far as the Commission adopted a misrepresentation derived from the Conformance study

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The Commission based its decision on an incorrect overall comparison derived from the Conformance study.

| 5. | Fifth plea in law, alleging failure to observe the rules of evidence and infringement of Article 5(2) of Directive 95/16/EC






  — | In its decision, the Commission did not sufficiently take into account that the declarations of conformity submitted by the manufacturer were substantially incomplete. It is also clear from the recitals that the Commission incorrectly assumes the burden of proof to lie with the market surveillance authorities if, in the case of a deviation from the standard, there is a dispute as to whether the safety requirements would be fulfilled by an alternative, equivalent solution. |
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5.

Fifth plea in law, alleging failure to observe the rules of evidence and infringement of Article 5(2) of Directive 95/16/EC

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In its decision, the Commission did not sufficiently take into account that the declarations of conformity submitted by the manufacturer were substantially incomplete. It is also clear from the recitals that the Commission incorrectly assumes the burden of proof to lie with the market surveillance authorities if, in the case of a deviation from the standard, there is a dispute as to whether the safety requirements would be fulfilled by an alternative, equivalent solution.

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(1)  OJ 2021 L 106, p. 60.

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