Opinion of the Advocate General — ECLI:EU:C:2010:226
Date: 2010-04-28
Language of the case: Dutch
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Approximation of laws – Personal protective equipment – Directive 89/686 (Council Directive 89/686, as amended by European Parliament and Council Regulation No 1882/2003) 2. Approximation of laws – Personal protective equipment – Directive 89/686 (Council Directive 89/686, as amended by European Parliament and Council Regulation No 1882/2003) 3. Approximation of laws – Construction products – Directive 89/106 (Council Directive 89/106, as amended by European Parliament and Council Regulation No 1882/2003) 4. Approximation of laws – Conformity assessment procedures and rules for the affixing and use of the CE conformity marking – Decision 93/465 (Council Decision 93/465) 1. The provisions of EN 795 relating to Class A 1 anchor devices are not covered by Directive 89/686 on the approximation of the laws of the Member States relating to personal protective equipment, as amended by Regulation No 1882/2003; they do not, therefore, fall within the framework of European Union law and, accordingly, it is not within the jurisdiction of the Court of Justice to interpret them. (see para. 36, operative part 1) 2. Anchor devices which are not intended to be held or worn by their user are not covered by Directive 89/686 on the approximation of the laws of the Member States relating to personal protective equipment, as amended by Regulation No 1882/2003, either in themselves or on account of the fact that they are intended to be connected to personal protective equipment. (see para. 47, operative part 2) 3. Anchor devices which are part of the construction work to which they are secured in order to ensure the safety in use or in the functioning (operation) of the roof of that work are covered by Directive 89/106 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, as amended by Regulation No 1882/2003. The applicability of Directive 89/106 to a specific product requires two conditions to be met, one relating to the nature of the product and the other to its function. As regards, in the first place, the nature of products subject to Directive 89/106, construction products must cover products which are part of a construction work, the dismantling of which reduces the performance of that work and the dismantling or replacement of which is a construction operation. As regards, in the second place, the function of products falling within the scope of Directive 89/106, construction products must enable construction works to be erected that are fit for use, particularly in regard to safety in use, and that are required to be designed and built in such a way that they do not present unacceptable risks of accidents in service or in operation such as slipping, falling, collision, burns, electrocution, injury from explosion. Therefore, devices secured to roofs, which are part of the construction work and which are intended to ensure the safety of individuals working on roofs by preventing falls from a height from occurring in the use of the roof or in its functioning (operation), inter alia, for the purposes of cleaning and repair of the construction work, are covered by Directive 89/106. (see paras 51-55, 59, operative part 3) 4. Decision 93/465 concerning the modules for the various phases of the conformity assessment procedures and the rules for the affixing and use of the CE conformity marking, which are intended to be used in the technical harmonisation directives, precludes the option of affixing the CE marking to a product that does not fall within the scope of the directive under which it is affixed, even if that product satisfies the technical requirements defined by that directive. The CE marking may be affixed only to products to which its affixing is provided for by the relevant specific harmonisation legislation of the European Union, and may not be affixed to any other product. (see paras 63-64, operative part 4)