Opinion of the Advocate General — ECLI:EU:C:2005:162
Date: 2005-03-10
Language of the case: Finnish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the Judgment 1. Approximation of laws — Machinery — Directive 98/37 — Obligations on an importer in a Member State in respect of machinery manufactured in another Member State, bearing the CE marking and accompanied by an EC declaration of conformity — Limits — National provisions imposing on an importer the obligation to ensure that such machinery complies with the essential health and safety requirements laid down in the Directive — Not permissible (European Parliament and Council Directive 98/37) 2. Approximation of laws — Machinery — Directive 98/37 — Obligations on an importer in a Member State in respect of a machine manufactured in another Member State — Limits — Verification of the marking on the machinery — Drawing up of translations — Requirement to cooperate with the national authorities — Whether permissible — Conditions (Arts 28 EC and 30 EC; European Parliament and Council Directive 98/37) 3. Approximation of laws — Machines — Directive 98/37 — Right of Member States to impose criminal penalties for infringements of Community law — Scope (Arts 10 EC and 249 EC, third para.; European Parliament and Council Directive 98/37) 1. Directive 98/37/EC relating to machinery precludes the application of national provisions which require the importer in a Member State of machinery manufactured in another Member State, bearing the CE marking and accompanied by an EC declaration of conformity, to ensure that that machinery meets the essential health and safety requirements laid down by that directive. The essential objective of that directive, which is to simplify the rules relating to the conformity of machinery so as to ensure as far as possible its free movement within the internal market, would be impeded if operators downstream from the manufacturer, in particular importers of machinery from one Member State to another Member State, could also be held responsible for the conformity of that machinery. (see paras 45-46, 61, operative part 1) 2. Directive 98/37 relating to machinery does not preclude the application of national provisions which require the importer in a Member State of a machine manufactured in another Member State to: - ensure, before the machinery is delivered to the user, that it bears the CE marking and is accompanied by the EC declaration of conformity translated into the language or one of the languages of the Member State into which the machinery is imported, and instructions translated into the language or languages of that State, - provide, after the machinery has been delivered to the user, all appropriate information and cooperation to the national inspection authorities if it transpires that that machinery poses risks to safety or health, provided that such requirements do not amount to making the importer subject to the obligation to verify himself that the machinery complies with the essential health and safety requirements laid down by that directive. (see paras 48-49, 52, 61, operative part 2) 3. Although Directive 98/37 relating to machinery does not impose any specific obligations on the Member States as regards the system of penalties, that does not mean, however, that national provisions which impose criminal penalties for infringements of legislation implementing that directive are incompatible with the latter. The Member States are required, within the bounds of the freedom left to them by the third paragraph of Article 249 EC, to choose the most appropriate forms and methods to ensure the effectiveness of directives and Article 10 EC requires them, under the conditions referred to above, to take all measures necessary to guarantee the application and effectiveness of Community law. Accordingly, Article 10 EC and the third paragraph of Article 249 EC must be interpreted as not precluding a Member State from imposing criminal penalties to ensure compliance with the obligations laid down by Directive 98/37, provided that those penalties are analogous to those applicable to infringements of national law of a similar nature and importance and are, in any event, effective, proportionate and deterrent. (see paras 57-61, operative part 3)