JUDGMENT OF THE GENERAL COURT (Second Chamber)
8 September 2021(*) (1)
(Protection of the health and safety of consumers and workers – Directive 2006/42/EC – Safeguard clause – National measure of withdrawal from the market and prohibition of placing on the market of a pinsetter machine and a supplementary kit – Essential health and safety requirements – Commission decision declaring the measure justified – Equal treatment)
In Case T‑152/19,
Brunswick Bowling Products LLC, formerly Brunswick Bowling & Billiards Corporation, established in Muskegon, Michigan (United States), represented by R. Martens and V. Ostrovskis, lawyers,
applicant,
v
European Commission, represented by M. Huttunen and P. Ondrůšek, acting as Agents,
defendant,
supported by
Kingdom of Sweden, represented by H. Eklinder, R. Eriksson, C. Meyer-Seitz, A. Runeskjöld, M. Salborn Hodgson, H. Shev, J. Lundberg and O. Simonsson, acting as Agents,
intervener,
APPLICATION under Article 263 TFEU seeking annulment of Commission Implementing Decision (EU) 2018/1960 of 10 December 2018 on a safeguard measure taken by Sweden pursuant to Directive 2006/42/EC of the European Parliament and of the Council, to prohibit the placing on the market of a type of pinsetter machine and a supplementary kit to be used together with that type of pinsetter machine, manufactured by Brunswick Bowling & Billiards, and to withdraw those machines already placed on the market (OJ 2018 L 315, p. 29),
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović, President, F. Schalin and P. Škvařilová‑Pelzl (Rapporteur), Judges,
Registrar: C. Kristensen, Head of Unit,
having regard to the written part of the procedure and further to the hearing on 6 October 2020,
having regard to the order of 11 March 2021 reopening the oral part of the procedure and the parties’ replies to the written questions put by the Court,
gives the following
Judgment
Background to the dispute
1        The applicant, Brunswick Bowling Products LLC, formerly Brunswick Bowling & Billiards Corporation, is an undertaking established in the United States which is active in the market as an operator of full-service bowling and recreation centres in North America and in the European Union and is a full-line supplier of bowling equipment and designs billiards tables and accessories. The applicant produces, inter alia, ‘Brunswick GS-X’ pinsetter machines (‘the machines at issue’) and ‘Advanced Guards’ supplementary kits of parts (together, ‘the products at issue’). The products at issue are placed on the market in 26 Member States.
2        On 30 August 2013, the Arbetsmiljöverket (Swedish Work Environment Authority (‘SWEA’)) issued a decision (‘the SWEA decision’) by which it took safeguard measures under Article 11(1) of Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2016 on machinery, and amending Directive 95/16/EC (recast) (OJ 2006 L 157, p. 24), seeking, first, to prohibit the placing on the market of the products at issue and, secondly, to withdraw them from the market, subject to certain conditions.
3        More specifically, according to the SWEA decision, the products at issue had a number of defects. The main objections related to the visibility into the danger zone of the machines at issue during the start-up procedure, the insufficient width of the ball return area of those machines, namely the walkway of the machines at issue being 190 mm wide, the risks associated with the frontal access of those machines and other defects concerning the controller labels, the use of colours on the indicator lights and documentation and translation issues.
4        As regards the withdrawal of the products at issue, a number of possibilities were set out in the decision of the SWEA, namely, first, to correct the defects relating to the operator’s working environment, secondly, to take back the products at issue and replace them with other products of the same or equivalent kind that comply with the relevant technical requirements or, thirdly, take back those products and pay compensation to the owner.
5        More specifically, as regards the first possibility, namely to correct the defects in existing products, the SWEA did not require some of the measures that were required in order to correct the deficiencies for the new products at issue. Thus, the applicant was not required to implement corrections concerning the fitting of three separate lights indicating different modes in the control panel, the enlargement of the access points between the machines which are also used as work platforms and the overview of the danger zone.
6        The reasons relied on by the Kingdom of Sweden to justify the safeguard measures, pursuant to Article 11(2)(a) and (b) of Directive 2006/42, as referred to in paragraphs 2 to 5 above, were the failure of the products at issue to satisfy certain essential health and safety requirements (‘EHSRs’) set out in Annex I to Directive 2006/42 and the incorrect application of some of the harmonised standards.
7        In accordance with Article 11(2) of Directive 2006/42, the Swedish authorities informed the European Commission of the measures seeking to prohibit the placing on the market of the products at issue and to withdraw them from the market.
8        In accordance with Article 11(3) of Directive 2006/42, by letter of 11 April 2014, the Commission asked the applicant, as the manufacturer, to submit its observations on the measures taken by the Kingdom of Sweden. In an undated document, which is annexed to the application, the applicant requested that the Commission not declare those measures to be justified. It also sent additional information to the Commission by letter of 6 December 2016.
9        The Commission commissioned a study by independent experts (‘the independent study’), of 8 May 2017, to determine whether the products in question complied with Directive 2006/42. By letter dated 22 June 2018, the applicant submitted its observations on that study.
10      By Implementing Decision (EU) 2018/1960 of 10 December 2018 on a safeguard measure taken by Sweden pursuant to Directive 2006/42, to prohibit the placing on the market a type of pinsetter machine and a supplementary kit to be used together with that type of pinsetter machine, manufactured by Brunswick Bowling & Billiards, and to withdraw those machines already placed on the market (OJ 2018 L 315, p. 29, ‘the contested decision’), the Commission considered, pursuant to Article 11(3) of Directive 2006/42, that the measures taken by the Kingdom of Sweden, as referred to in paragraphs 2 to 5 above, were justified.
11      More specifically, in recital 14 of the contested decision, the Commission took the view that ‘examination of the justification provided by [the Kingdom of] Sweden with respect to the safeguard measure, the independent study confirming the conclusions made by [the Kingdom of] Sweden and the observations communicated by the manufacturer, confirm that the pinsetter machine did not comply with the [EHSRs] set out in [points] 1.1.2, 1.1.6, 1.2.2, 1.3.8, 1.4, 1.6.1, 1.6.2, 1.7.1, 1.7.4, 1.7.4.1, 1.7.4.2 of Annex I to Directive 2006/42 … and the supplementary kit did not comply with the [EHSRs] set out in [points] 1.1.2, 1.2.2, 1.3.8, 1.4, 1.7.1, 1.7.4, 1.7.4.1 and 1.7.4.2 at the time that [the Kingdom of] Sweden notified the measures to the Commission in December 2013’. It concluded, in the same recital, that those deficiencies were liable to compromise the health and safety of persons and that, therefore, the safeguard measures in question had to be considered as justified.
Procedure and forms of order sought
12      By application lodged at the Court Registry on 8 March 2019, the applicant brought the present action.
13      By document lodged at the Court Registry on 20 June 2019, the Kingdom of Sweden sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. The Commission and the applicant expressed their consent to that application for leave to intervene on 9 and 17 July 2019 respectively. By decision of 25 July 2019 of the President of the First Chamber of the General Court, the Kingdom of Sweden’s application for leave to intervene was granted.
14      On 24 June 2019, the Commission lodged its defence at the Court Registry.
15      The reply and the rejoinder were lodged at the Court Registry on 21 August and 22 October 2019, respectively.
16      On 9 October 2019, the Kingdom of Sweden lodged its statement in intervention at the Court Registry.
17      The Commission and the applicant lodged their observations on the Kingdom of Sweden’s statement in intervention at the Court Registry on 5 and 7 November 2019, respectively.
18      By decision of the President of the General Court of 16 October 2019, the present case was assigned to a new Judge-Rapporteur, sitting in the Second Chamber.
19      In application of Article 106(2) of the Rules of Procedure of the General Court, the applicant submitted, on 3 December 2019, a reasoned request for a hearing.
20      By decision of 16 July 2020, the Court adopted a measure of organisation of procedure, on the basis of Articles 88 to 90 of the Rules of Procedure. The Commission replied to that measure of organisation within the prescribed time limit. The other parties did not respond to the invitation, which had been sent to them, to submit their observations on the Commission’s reply.
21      At the hearing of 6 October 2020, the parties presented oral arguments and answered the questions put to them by the Court.
22      By order of 11 March 2021, the Court decided to reopen the oral part of the procedure and, by decision of the same date, adopted a measure of organisation of procedure, on the basis of Articles 88 to 90 of the Rules of Procedure, asking the applicant to clarify its legal relationship with Brunswick Bowling & Billiards, referred to in recital 1 of the contested decision as the manufacturer of the products at issue.
23      In its reply of 26 March 2021, the applicant submitted explanations and evidence showing that the contested decision referred to the applicant using its former company name. By letter of 16 April 2021, the Commission stated that it had no observations to make regarding the applicant’s reply. The Kingdom of Sweden did not lodge any observations within the prescribed period.
24      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
25      The Commission, supported by the Kingdom of Sweden, contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
26      The applicant puts forward five pleas in law in support of its application for annulment of the contested decision. The first plea alleges breach of the procedural rules contained in Article 11 of Directive 2006/42 and Article 18(5) of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ 2008 L 218, p. 30), and the principle of proportionality as stipulated in Article 18(4) of that regulation. The second plea alleges infringement of the principles of legal certainty, the protection of legitimate expectations and good administration. The third plea alleges breach of the procedural rules contained in Annex I to Directive 2006/42. The fourth plea alleges infringement of the principle of good administration. The fifth plea alleges infringement of Article 6 of Directive 2006/42 and of the principle of equal treatment.
27      Thus, the present action relates primarily to the scope of application and interpretation of Directive 2006/42 and, in particular, of the safeguard clause laid down in Article 11 of that directive. In the statement setting out the five pleas in law, the applicant also relies on the provisions of Regulation No 765/2008, in particular those relating to the Member States’ obligations regarding market surveillance organisation.
The admissibility of the complaint, raised in the context of the second plea in law, alleging infringement of the principle of good administration
28      In the reply, under the second plea in law, the applicant raises a complaint alleging infringement of the principle of good administration. In that regard, it submits that the Commission has infringed the obligation imposed on the institutions of the European Union by Article 41(1) of the Charter of Fundamental Rights of the European Union to act within a reasonable time since the Commission adopted the contested decision approximately five years after the SWEA decision, even though its examination was limited and it did not have to conduct new investigations or establish new facts.
29      In the rejoinder, the Commission submits that that complaint is inadmissible on the ground that it was raised for the first time at the reply stage.
30      In that regard, it should be recalled that, according to Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure. Furthermore, it is apparent from the case-law that that condition governs a fortiori any amendment to the forms of order sought and that, in the absence of matters of law or of fact which came to light in the course of the written procedure, the form of order sought in the application may alone be taken into consideration (see judgment of 3 May 2018, Grizzly Tools v Commission, T‑168/16, not published, EU:T:2018:246, paragraph 23 and the case-law cited).
31      In the present case, first, it must be stated that the complaint alleging infringement of Article 41(1) of the Charter of Fundamental Rights, in so far as it lays down an obligation to act within a reasonable time, was raised for the first time in the reply. The application does not contain anything referring to such an infringement. Therefore, that complaint cannot be regarded as amplifying one of the pleas or arguments set out in the application.
32      Secondly, it should be noted that, although it was put forward for the first time in the reply, the applicant has not provided any justification for the late submission of that complaint, contrary to the requirements of Article 84(1) of the Rules of Procedure.
33      Accordingly, the complaint at issue, which was raised in the context of the second plea and was submitted out of time, must be rejected as inadmissible.
Substance
The first plea in law, alleging infringement of the procedural rules contained in Article 11 of Directive 2006/42 and Article 18(5) of Regulation No 765/2008 and of the principle of proportionality as stipulated in Article 18(4) of that regulation
34      The first plea is composed of two parts. The first concerns an infringement of the procedural rules laid down in Article 11 of Directive 2006/42 and Article 18(5) of Regulation No 765/2008 in so far as the applicant claims to have been misled by a number of competent national authorities. The second concerns an infringement of the principle of proportionality as stipulated in Article 18(4) of Regulation No 765/2008, on the ground that it was possible to use less restrictive measures in order to comply with Directive 2006/42.
–       The first part, alleging infringement of the procedural rules laid down in Article 11 of Directive 2006/42 and Article 18(5) of Regulation No 765/2008
35      As regards the first part, alleging infringement of the procedural rules, the applicant relies on the fact that the products at issue were essentially developed in close collaboration with the competent national authorities in Denmark, Germany, Finland and the United Kingdom and they were found by those authorities to be compliant with Directive 2006/42 before the SWEA decision was issued. In view of that claim, first, the applicant submits that the procedure set out in Article 11 of Directive 2006/42 was not applied in a uniform manner by the competent national authorities. Secondly, according to the applicant, the requirement for the competent national authorities responsible for market surveillance of the Member States to cooperate and exchange information, as provided for by Directive 2006/42 in order to ensure the uniform application of that directive, has not been complied with. The applicant submits that the competent national authorities must establish uniform standards with regard to the quality of pinsetter machines, which has not been done in the present case. Consequently, it considers that the market surveillance system was defective and submits that it was misguided by the competent national authorities, and therefore the safeguard measures at issue are not justified.
36      The Commission, supported by the Kingdom of Sweden, contests the applicant’s arguments.
37      Directive 2006/42 was adopted on the basis of Article 95 EC (now Article 114 TFEU), which enables the European Parliament and the Council of the European Union to adopt measures which have as their object the abolition of barriers to trade arising from differences between the provisions laid down by law, regulation or administrative action in Member States. It aims to harmonise the conditions under which machinery bearing the ‘CE’ marking and the EC declaration of conformity is placed on the internal market and to ensure its free movement within the European Union, whilst also guaranteeing compliance with a set of requirements designed to protect the health and safety of persons from risks arising from use of the machinery, as did Council Directive 89/392/EEC of 14 June 1989 on the approximation of the laws of the Member States relating to machinery (OJ 1989 L 183, p. 9) 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), which preceded it (see judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 25 and the case-law cited).
38      Thus, under Article 4(1) of Directive 2006/42, Member States are to take all appropriate measures to ensure that machinery may be placed on the market and/or put into service only if it satisfies the relevant provisions of that directive and does not endanger the health and safety of persons and, where appropriate, domestic animals and property and, where applicable, the environment, when properly installed and maintained and used for its intended purpose or under reasonably foreseeable conditions.
39      Article 5(1) of Directive 2006/42 provides that, before placing machinery on the market or putting it into service, the manufacturer or his authorised representative must, inter alia, ensure that it satisfies the relevant EHSRs set out in Annex I to that directive, ensure that the technical file is available, provide the necessary information, carry out the appropriate procedures for assessing conformity, draw up the EC declaration of conformity and affix the EC marking to the machinery.
40      Article 6(1) of Directive 2006/42 states that Member States may not prohibit, restrict or impede the placing on the market and/or putting into service in their territory of machinery which complies with that directive.
41      Article 11 of Directive 2006/42 defines the conditions for the implementation of the safeguard clause. That provision requires, first, that Member States take all appropriate measures to restrict the free movement on their national market of machinery that they ascertain to be liable to compromise the health and safety of persons and, secondly, that the Commission is to ‘consider whether or not [those measures] are justified’ (judgment of 3 May 2018, Grizzly Tools v Commission, T‑168/16, not published, EU:T:2018:246, paragraph 50).
42      Directive 2006/42 thus establishes a system of surveillance and regulation of the internal market, under which it is primarily the role of the competent national authorities to determine whether machinery is liable to compromise the health and safety of persons and, in the affirmative, to take the requisite withdrawal or prohibition measures. The safeguard clause provided for that purpose by Article 11 of Directive 2006/42 must itself be viewed in the light of Article 114(10) TFEU, which authorises Member States to take such measures for one or more of the non-economic reasons referred to in Article 36 TFEU, which include the protection of health and life of humans. It is clear from the case-law that such an exercise may entail complex technical and scientific assessments. The Commission, for its part, is to verify whether the measures adopted by the Member States under Directive 2006/42 are justified in law and in fact (see judgment of 3 May 2018, Grizzly Tools v Commission, T‑168/16, not published, EU:T:2018:246, paragraph 52 and the case-law cited).
43      In that context, the General Court has previously held that, first, in order to be able to effectively pursue the objective assigned to it, bearing in mind the complex technical assessments which it must undertake, the Commission must be recognised as enjoying a broad discretion as regards the assessment of the facts. Secondly, a judicial review of the merits of the legal grounds leading to the Commission’s finding that the national measures at issue were justified must be a complete review, since it concerns a question of law (see, to that effect, judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraphs 48 and 80 and the case-law cited).
44      As regards the obligation of uniform application of Directive 2006/42 and the duty of cooperation between Member States, it must be noted that Article 14(7) of Directive 2006/42 provides that ‘the Commission shall provide for the organisation of an exchange of experience between the authorities responsible for appointment, notification and monitoring of notified bodies in the Member States, and the notified bodies, in order to coordinate the uniform application of [that directive].
45      Similarly, Article 19(1) of Directive 2006/42 provides that ‘Member States shall take the appropriate measures to ensure that the [national] competent authorities … cooperate with each other and with the Commission and transmit to each other the information necessary to enable [that directive] to be applied uniformly’. Paragraph 2 of that article provides that ‘the Commission shall provide for the organisation of an exchange of experience between the competent authorities responsible for market surveillance in order to coordinate the uniform application of [that directive]’.
46      In addition, according to recital 9 of Directive 2006/42, ‘market surveillance is an essential instrument inasmuch as it ensures the proper and uniform application of Directives. It is therefore appropriate to put in place the legal framework within which market surveillance can proceed harmoniously’.
47      It should also be noted that, according to recital 10 of Directive 2006/42, ‘Member States are responsible for ensuring that [that directive] is effectively enforced on their territory and that the safety of the machinery concerned is, as far as possible, improved in accordance with its provisions’ and ‘should ensure their capacity to carry out effective market surveillance, taking account of guidelines developed by the Commission, in order to achieve the proper and uniform application of [that directive]’.
48      Article 1 of Regulation No 765/2008 lays down rules on the organisation and operation of accreditation of conformity assessment bodies performing conformity assessment activities. That regulation provides a framework for the market surveillance of products to ensure that those products fulfil requirements providing a high level of protection of public interests, such as health and safety in general, health and safety at the workplace, the protection of consumers, protection of the environment and security. It also provides a framework for controls of products from third countries and lays down the general principles of the CE marking.
49      The provisions of Article 18 of Regulation No 765/2008, on which the applicant relies, concern market surveillance, in particular the obligations of Member States as regards the organisation of that surveillance. First of all, pursuant to paragraph 1 of that article, Member States are to establish appropriate communication and coordination mechanisms between their market surveillance authorities. Next, Member States are also required to establish appropriate procedures for the organisation of market surveillance and to ensure that market surveillance authorities have the powers, resources and knowledge necessary for the proper performance of their tasks (paragraphs 2 and 3 of that article). In addition, Article 18(4) of Regulation No 765/2008 lays down an obligation on Member States to ensure that market surveillance authorities exercise their powers in accordance with the principle of proportionality. Similarly, under paragraph 5 of that article, Member States are required to establish, implement and periodically update their market surveillance programmes, which must be communicated, inter alia, to the other Member States and to the Commission. Lastly, Member States must periodically review and assess the functioning of their surveillance activities (Article 18(6) of Regulation No 765/2008).
50      First, as regards the applicant’s arguments concerning the uniform application of Directive 2006/42, it should be recalled that it is apparent from Article 14(7) and Article 19 of Directive 2006/42, read in the light of recitals 9 and 10 thereof, that, Member States are obliged, in the course of the market surveillance referred to in the directive, and, more particularly, in the implementation of the safeguard clause in Article 11 of the directive, to guarantee the proper and uniform application of the directive, by coordinating and by taking account of guidelines developed by the Commission (judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 27).
51      Secondly, as regards the applicant’s arguments concerning the competent national authorities’ obligation to cooperate and exchange information, it is true that Article 19 of Directive 2006/42 imposes on Member States an obligation to take appropriate measures to ensure that the competent national authorities cooperate with each other and with the Commission and transmit to each other the information necessary to enable the directive to be applied uniformly. Article 18(5) of Regulation No 765/2008 also lays down an obligation for Member States to establish, implement and periodically update their market surveillance programmes, which must be communicated, inter alia, to the other Member States and to the Commission.
52      Notwithstanding the importance of the obligations on the Commission and the Member States referred to in paragraphs 50 and 51 above, it must be noted that none of them entails any obligation binding the Commission and the Member States to coordinate the adoption of technical solutions in the Member States. On the contrary, the uniform application of Directive 2006/42 does not necessarily mean that identical technical solutions are required in all the Member States.
53      The obligation to apply Directive 2006/42 in a uniform manner relates to the general apprehension of the objective of ensuring the health and safety, in particular of persons, in the machinery sector, particularly as regards the market surveillance system of the competent national authorities and the principles and procedures to be followed for that purpose. That is illustrated and confirmed by recital 10 of Directive 2006/42, cited in paragraph 47 above, according to which Member States are responsible for ensuring that the directive is effectively enforced on their territory and that the safety of the machinery concerned is, as far as possible, improved in accordance with its provisions.
54      Thus, in accordance with the case-law, the contested decision requires each of the Member States other than the Kingdom of Sweden to take appropriate measures in relation to placing the products at issue on their respective markets, or to retaining them on the market, and, in so doing, guarantees the proper and uniform application of Directive 2006/42, in the light of the measures adopted by the Swedish authorities, after they have been found to be justified by the Commission. The direct consequence of the contested decision is to trigger national procedures that have an impact on the right that the applicant had, until then, enjoyed within the whole of the European Union, to market machinery that benefited from the presumption of conformity under Article 7 of that directive, since it bore the ‘CE’ marking and was accompanied by the EC declaration of conformity (see, to that effect, judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 28).
55      Accordingly, the correct and uniform application of Directive 2006/42 is ensured, inter alia, by the functioning of market surveillance and by the application of the safeguard clause which makes it possible to ensure that all Member States are informed and required to act when safeguard measures are found to be justified by the Commission. On the other hand, contrary to what is claimed, in essence, by the applicant, Directive 2006/42 does not prevent a Member State from taking the measures provided for in Article 11 of that directive, on the ground that other Member States have not done so.
56      For that reason, the applicant’s arguments raised in the context of the first part of the first plea are not capable of calling into question the Commission’s assessment in the contested decision. The first part of the first plea must therefore be rejected as unfounded.
–       The second part, alleging infringement of the principle of proportionality
57      As regards the second part of the first plea, alleging infringement of the principle of proportionality, first of all, the applicant submits that the contested decision does not contain adequate proportionality considerations. Secondly, it claims that, in the contested decision, the Commission did not assess whether the deficiencies found by the SWEA in the products at issue were so substantial that the safeguard measures were justified in fact and in law. Moreover, the implications of the contested decision are disproportionate since it requires that all Member States in which the products at issue are installed take measures in order to ensure the uniform application of Directive 2006/42. According to the applicant, the requirements and demands of the SWEA in respect of the products at issue go beyond what is necessary to achieve the safety of those products. Furthermore, the applicant submits that the Commission did not take account of the upgrade plan that was carried out for its products at issue at the premises of a bowling centre in Gustavsberg (Sweden) and presented to the SWEA in 2016 as a solution for the Swedish market, or of the positive observations in that regard in respect of the products at issue in an independent study. Lastly, according to the applicant, the measures provided for in the SWEA decision and, respectively, in the contested decision, lead to a disproportionate financial burden in comparison with the safety issues and risks identified by the SWEA.
58      The Commission, supported by the Kingdom of Sweden, contests the applicant’s arguments.
59      Article 5 TEU, to which the applicant briefly refers in the context of the present plea, provides in paragraph 4 that ‘under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’ and that ‘the institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality’.
60      As noted in paragraph 49 above, Article 18(4) of Regulation No 765/2008 provides that ‘Member States shall ensure that market surveillance authorities exercise their powers in accordance with the principle of proportionality’.
61      In addition, under Article 21(1) of that regulation, ‘Member States shall ensure that any measure taken, pursuant to the relevant [EU] harmonisation legislation, to prohibit or restrict the product’s being made available on the market, to withdraw it from the market or to recall it, is proportionate and states the exact grounds on which it is based’.
62      Thus, those provisions of Regulation No 765/2008 confirm the obligation of the competent national authorities to comply with the principle of proportionality.
63      According to settled case-law, the principle of proportionality, which is one of the general principles of EU law, requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 55; see also, to that effect, judgment of 17 May 1984, Denkavit Nederland, 15/83, EU:C:1984:183, paragraph 25).
64      The principle of proportionality applies in the same way at national level, since it requires the Member States to adopt measures that are appropriate for attaining the objectives pursued and do not go beyond what is necessary for attaining them (see judgment of 4 October 2018, Link Logistik N&N, C‑384/17, EU:C:2018:810, paragraph 40 and the case-law cited).
65      In the first place, as regards the applicant’s arguments alleging infringement of the principle of proportionality in so far as the Commission did not take account of its upgrade plan presented at the Gustavsberg bowling centre in 2016 or of the positive observations of the independent study in that regard, it must be noted, as submitted by the Commission, that the contested decision concerns the question as to whether or not the safeguard measures taken by the SWEA in 2013 were justified.
66      In that regard, it should be noted that Article 95(10) EC, which constitutes the legal basis of Directive 2006/42, provides that the harmonisation measures adopted on that basis are, in appropriate cases, to include a safeguard clause authorising Member States to take, for one or more of the non-economic reasons referred to in Article 36 TFEU, ‘provisional measures subject to a Union control procedure’. It follows, according to the case-law, that, although it is effectively for the Member States to correctly implement Directive 2006/42, in particular with regard to the principle of proportionality, and to ensure that machinery placed on the market or put into service in their territory complies with those provisions, if necessary by taking measures such as those envisaged in Article 11, it is still for the Commission to review whether those measures are justified, by, inter alia, ensuring that the legal and factual grounds for the adoption of the measures are valid and, in particular, proportionate. The result of that review determines definitively whether the national measure at issue may be retained, meaning that the Member State may only retain it if the Commission declares it to be justified and must remove it if that is not the case (see, to that effect, judgment of 3 May 2018, Grizzly Tools v Commission, T‑168/16, not published, EU:T:2018:246, paragraph 51 and the case-law cited).
67      It is apparent from the case-law cited in paragraph 66 above that, as part of the review which it carries out, the Commission is solely competent to verify whether or not the national safeguard measures, as adopted and subsequently notified by the Kingdom of Sweden pursuant to Article 11(1) and (2) of Directive 2006/42, are justified and, consequently, whether those measures may, following that review, be definitively maintained.
68      Moreover, given that, as is apparent from that case-law, it is for the Commission to review whether the safeguard measures concerned are justified, by ensuring, inter alia, that the legal and factual reasons for their adoption are well founded, it must be held that the review carried out by the Commission may be based only on circumstances which existed at the time of the adoption of the SWEA decision, and not on subsequent circumstances.
69      For the reasons set out in paragraphs 66 to 68 above, the circumstances relied on by the applicant which arose after the SWEA decision, such as the improvements to the products at issue at the Gustavsberg bowling centre in 2016, are not relevant for the purposes of assessing the merits of the contested decision. Similarly, it must be stated that the applicant’s arguments regarding the ‘positive observations’ in the independent study, as regards the goods at issue, relate to improvements to those products which were carried out after the adoption of the SWEA decision. Accordingly, they are also irrelevant.
70      In the second place, it is apparent from the applicant’s arguments that it complains that the Commission, first, failed to examine whether the deficiencies identified were so significant that the safeguard measures were justified and, secondly, confirmed safeguard measures that went beyond what was necessary to ensure the health and safety of persons.
71      In that regard, first, it must be borne in mind that it is apparent from Article 11(1) of Directive 2006/42 that, where the machinery referred to in that article, such as that in the present case, does not comply with the relevant EHSRs and may thus endanger the health or safety of persons, Member States are to take all appropriate measures to withdraw them from the market, to prohibit them from being placed on the market or put into service or to restrict their free movement. Therefore, a finding that machinery does not comply with the relevant EHSRs and may compromise the health and safety of persons justifies the adoption by the competent authorities of decisions to withdraw machinery from the market and prohibit them from being placed on the market.
72      It should also be pointed out that, according to the case-law, the objective of the protection of the health and life of humans ranks foremost among the assets or interests protected by Article 36 TFEU (see, to that effect, judgment of 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 35), in the light of which the Member States may adopt the safeguards provided for in Directive 2006/42, as is clear from the case-law cited in paragraph 42 above.
73      In the present case, it is apparent from all the infringements of the EHSRs found by the Commission in recitals 9 to 13 of the contested decision that those infringements constitute risks to human health and safety, in particular the lack of overview of the danger zone, the risk of injury, the risk of falling in the machine, the risk arising from moving parts and the risk of misuse. The Commission was therefore right to find, in recital 14 of the contested decision, that the deficiencies identified were liable to compromise the health and safety of persons.
74      Consequently, since the machines in question do not comply with the EHSRs and present risks to human health and safety, it must be held that the Commission was justified, pursuant to Article 11 of Directive 2006/42 and without infringing the principle of proportionality, in concluding that the safeguard measures, namely the prohibition of placing on the market and the withdrawal from the market of the products at issue, adopted by the SWEA, were in themselves justified.
75      Secondly, as regards that withdrawal, it should be added that, as is apparent from recital 2 of the contested decision, a number of alternative solutions for implementation were envisaged, namely the possibility of correcting the defects relating to the operator’s working environment, taking back the products at issue and replacing them with other deficiency-free products of the same or corresponding kind or taking back the products at issue and paying compensation to the owner.
76      It should be noted that, in recital 5 of the contested decision, the Commission states that:
‘Regarding the measures adopted, the Swedish authorities explained that they respected the principle of proportionality, laid down in Article 18 of Regulation … No 765/2008 … Based on that principle, considering the severity of the risks and the costs of the withdrawal, some of the actions required to address the deficiencies for the [new products at issue], were not required in the case of the withdrawal of the [products at issue]. Namely, those concerning the fitting of three separate lights that indicate different modes in the control panel, the enlargement of the access points between the machines also used as work platforms and the overview of the danger zone.’
77      It must be held that, since the Commission has not called into question the explanations of the Kingdom of Sweden referred to in paragraph 76 above, it confirmed the finding that the SWEA approach was proportionate.
78      Thus, it is apparent from the contested decision that, in the light of the principle of proportionality, the seriousness of the risks was weighed against the cost of withdrawal. On that basis, products that were to be sold in the future were distinguished from the products at issue already on the market, in the case of the latter, by the application of a reduced list of deficiencies requiring withdrawal. In addition, the three alternative solutions for implementing the withdrawal of the products at issue, as explained in paragraph 75 above, contribute to respect of the principle of proportionality by the SWEA and, therefore, by the Commission.
79      In the third place, having regard to the above findings, the applicant’s arguments concerning a disproportionate financial burden resulting from the safeguard measures cannot be upheld. First, the risks which the applicant’s machines pose to the health and safety of humans, as referred to in paragraph 73 above, justify the need to prohibit the placing on the market and the withdrawal from the market of the products at issue, notwithstanding the cost that that might represent for the applicant. Secondly, the distinction between the safeguard measures for existing and new products, the three alternative solutions for withdrawing the products at issue and the fact that, under the first of those solutions, the number of deficiencies to be corrected in order to maintain those products on the market was reduced show, in that regard, that the approach adopted by the SWEA and the Commission was proportionate to the financial burden which the safeguard measures might impose on the applicant.
80      In the fourth place, it must be stated that, in view of both the precise references to the justifications provided by the Kingdom of Sweden and the detailed risk analysis of the use of the products at issue made by the Commission, the applicant’s arguments concerning the failure, in the contested decision, to state adequate reasons regarding the proportionality of the safeguard measures are unfounded.
81      In the light of all the foregoing considerations, it must be concluded that the Commission did not infringe the principle of proportionality in finding that the safeguard measures at issue were justified.
82      In the fifth place, as regards the applicant’s arguments concerning infringement of the principle of proportionality in so far as all other Member States are required to take measures following the contested decision, first of all, it must be noted that, according to the case-law, the decision taken by the Commission within the meaning of Article 11 of Directive 2006/42 is addressed to all the Member States of the European Union in a manner consistent with the communication and information obligations imposed on the Commission by Article 11(3) and (6) of Directive 2006/42. The contested decision is therefore binding in its entirety on all Member States, pursuant to Article 288 TFEU (see, to that effect, judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 24).
83      Thus, the consequences claimed by the applicant are inherent in the Commission’s procedure for examining the justification of safeguard measures, as provided for in Article 11 of Directive 2006/42. As recalled in paragraph 54 above, it follows from all the provisions of Directive 2006/42, as interpreted by the case-law, that the contested decision requires the Member States to take appropriate measures relating to the placing or retaining of the products at issue on their market. That is an essential element of the safeguard clause procedure laid down in Article 11 of Directive 2006/42, which is intended to ensure uniform application.
84      Next, it is clear from the provisions of Article 11 of Directive 2006/42 that the Commission was obliged to act following the SWEA’s notification of the safeguard measures taken in respect of the products at issue and to take a decision as to whether or not those measures were justified. Accordingly, the applicant’s arguments in that regard cannot succeed.
85      Furthermore, it must be observed that the conclusions set out in paragraphs 82 to 84 above cannot be refuted by the content of Article 9 of Directive 2006/42, to which the applicant referred during the hearing in support of its argument that the Commission had discretion as regards the consequences resulting from the contested decision in the Member States.
86      Article 9 of Directive 2006/42, which introduces ‘specific measures to deal with potentially hazardous machinery’, provides, inter alia, that when, in accordance with the procedure referred to in Article 11 of the directive, the Commission considers that a measure taken by a Member State is justified, it may take measures requiring Member States to prohibit or restrict the placing on the market of machinery presenting the same risk as that covered by national measures by virtue of its technical characteristics or to make such machinery subject to special conditions. Moreover, recital 13 of that directive states that such measures, adopted at EU level, are not directly applicable to economic operators and must be implemented by Member States (judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 33).
87      In that regard, it must be stated that, in accordance with settled case-law, even though Member States must ensure the proper and uniform application of Directive 2006/42 by drawing the conclusions from a national safeguard measure taken in relation to a certain machine and found to be justified by the Commission, and they do not have any margin of discretion as to the result to be achieved, they clearly cannot step beyond the procedural and material framework provided for by Article 11(1) by unilaterally choosing to extend the scope of that measure to other machines on the ground that they too present the same risk, as to do so would constitute a breach of the principle of free movement set out in Article 6(1) of that directive and of the presumption of conformity provided for by Article 7 thereof. That is why the EU legislature made such an extension conditional on a specific procedure being followed, as laid down in Article 9 of Directive 2006/42, involving the adoption of both an express decision to that effect by the Commission and national measures implementing that decision. However, such steps are neither provided for, nor are they necessary, for the purposes of Article 11 of the directive at issue, bearing in mind the scope of that article (see judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 34 and the case-law cited).
88      It must be concluded that, having regard to the case-law referred to in paragraphs 86 and 87 above, in the circumstances of the present case, which relate solely to the examination of the safeguard measure at issue, the provisions of Article 9 of Directive 2006/42 are not applicable to the present case.
89      In the light of all the foregoing considerations, the second part of the first plea in law, relating to infringement of the principle of proportionality and, consequently, the first plea in its entirety, must be rejected as unfounded.
The second plea in law: alleging infringement of the principles of legal certainty, protection of legitimate expectations and good administration
90      The second plea, alleging infringement of the principles of legal certainty, protection of legitimate expectations and good administration, is divided into two parts. The first alleges that the applicant could reasonably rely on the legitimate expectations created by the Danish, German, Finnish and UK competent national authorities in so far as they had not triggered the safeguard clause following their investigations. However, the observations and subsequent approach of those authorities were not taken into account by the Commission. The second part alleges that, in the contested decision, no reasonable and effective period for its implementation within the Member States was provided for.
–       The first part, alleging infringement of the principles of legal certainty and of the protection of legitimate expectations
91      As regards the first part of the second plea, the applicant submits, in essence, that, in the light of the checks performed by the UK, German, Finnish and Danish competent national authorities, as well as the subsequent investments and alterations that the applicant made to its products, it could legitimately expect that the Swedish authorities would not go so far as to trigger the safeguard clause in Article 11 of Directive 2006/42. The applicant states that those competent national authorities had closed their investigations after the applicant responded to their requests; no subsequent safeguard measures were taken. In addition, the applicant submits that the UK and German competent national authorities had published guidance in which the applicant’s products were presented as industry leading. According to the applicant, the principle of legitimate expectations, which it alleges has been infringed in the present case, is a general principle which is widely recognised by the Member States and the case-law of the European Courts on that subject also applies to the authorities of the Member States.
92      The Commission contests the applicant’s arguments.
93      It should be recalled, as a preliminary point, that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person who has been caused by an EU institution to entertain expectations which are justified by precise assurances provided to him or her. Three cumulative conditions must be satisfied in that regard. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 11 July 2019, IPPT PAN v Commission and REA, T‑805/16, not published, EU:T:2019:496, paragraphs 205 and 206 and the case-law cited).
94      That principle is the corollary of the principle of legal certainty, which requires that legal rules be clear and precise, and which seeks to ensure that situations and legal relationships governed by EU law remain foreseeable (see judgment of 13 November 2008, SPM v Council and Commission, T‑128/05, not published, EU:T:2008:494, paragraph 147 and the case-law cited).
95      The applicant submits, in essence, that it could legitimately expect the Swedish authorities not to go so far as to implement the safeguard clause laid down in Article 11 of Directive 2006/42, having regard to the reviews carried out by the other competent national authorities and, in that context, to subsequent investments and changes made to its products in order to comply with the requests of those authorities. Thus, the applicant claims that assurances capable of giving rise to legitimate expectations on its part were given by the actions or inactions of those competent national authorities.
96      Primarily, it must be stated that, contrary to the case-law referred to in paragraph 93 above, the applicant does not rely in any way on assurances given by the EU administration, but solely on assurances which it claims resulted from decisions taken by certain competent national authorities. Accordingly, the first part of the second plea must be rejected as being manifestly unfounded.
97      For the sake of completeness, even if the Court had jurisdiction to examine the applicant’s arguments concerning assurances which it claims to have received from certain competent national authorities, quod non, that argument would have to be rejected for the following two reasons. First, no decision adopted by one or more competent national authorities can give rise to any expectation that other competent national authorities will adopt an identical or at least similar decision not to implement a safeguard measure. In other words, the actions taken by other competent national authorities in respect of the products at issue could not give rise to any assurance, from the point of view of the applicant, as to future actions or inactions on the part of the SWEA. No provision of Directive 2006/42 prevents the competent national authorities from adopting the necessary safeguard measures freely and independently. Secondly, there is nothing in the documents before the Court to suggest that the SWEA gave the applicant any precise, unconditional and consistent assurance that it would decide not to adopt safeguard measures. On the contrary, as noted by the Commission, it is apparent from the applicant’s letter to the SWEA of 3 September 2012 that the applicant was aware of such a risk, since it expressly requested a meeting with the SWEA, stating that such a meeting could make it possible to avoid the adoption of the prohibition proposed, which, according to the applicant, was not in line with either the letter or the spirit of Directive 2006/42.
98      In the light of those considerations, the first part of the second plea must be rejected as unfounded.
–       The second part, alleging infringement of the principles of good administration and legal certainty
99      As regards the second part of the second plea, the applicant points out that the measures, procedures and time limits for the withdrawal of the machines at issue will be different from one Member State to another. The Commission should therefore, in the contested decision, have provided guidance on the timetable and detailed rules for its implementation. According to the applicant, such a situation, in which there is no consistent market surveillance approach to the products at issue and where the applicant does not know beforehand what implementation of the contested decision in the other Member States will entail, is disproportionate and contrary to the principle of good administration and the principle of legal certainty.
100    The Commission disputes the applicant’s arguments.
101    First, it should be noted that, in accordance with Article 11(3) of Directive 2006/42, the role of the Commission in the safeguard clause procedure is limited, first, to verifying whether a Member State, in this case the Kingdom of Sweden, has taken justified measures with regard to the products at issue and, secondly, to inform the other Member States and the manufacturer of those products of its decision in that regard. It is also clear from paragraphs 3 and 6 of that article that the Commission is responsible for ensuring that the other Member States are informed, first, of the measures taken by the competent Member State where the machinery does not comply and bears the CE marking and, secondly, of the progress and outcome of the procedure relating to the safeguard clause. Thus, it is not apparent from the provisions of Article 11 of Directive 2006/42 that the Commission is required to issue and enforce instructions to the Member States as to the action to be taken following its decision finding that a protective measure adopted by a Member State pursuant to Article 11(1) of that directive is justified.
102    So far as concerns the role of the Member States as regards the action to be taken, at national level, on the Commission’s decision finding the safeguard measures adopted by the Kingdom of Sweden to be justified, as has been noted in paragraph 54 above, that decision requires that each of the Member States take appropriate measures relating to the placing or retaining of the products at issue on its market and, in so doing, guarantees the correct and uniform application of Directive 2006/42, in the light of the measures adopted by the Swedish authorities and found to be justified by the Commission (see, to that effect, judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 28). Furthermore, in the absence of harmonisation of specific procedural rules in that regard, in EU law, Member States are to apply their national procedures autonomously.
103    Therefore, the Commission cannot, in the contested decision, give the Member States precise instructions, such as a timetable or detailed rules for the implementation of that decision, without running the risk of infringing the rules of the safeguard clause procedure, as follow from the provisions of Article 11 of Directive 2006/42. In other words, as submitted by the Commission in the rejoinder, that would be at odds with the role played by the Member States in the market surveillance system and with the power that the legislature conferred on the Commission in the respective provisions of Directive 2006/42.
104    Secondly, it must be noted that, in the context of the second part of the present plea, the applicant alleges infringement of the principles of good administration and legal certainty. However, it does not provide arguments or evidence establishing a link between the contested decision and that alleged infringement. In this allegation, the applicant focuses on future decisions of other Member States which, in its view, could have certain negative consequences for it, owing to a lack of instructions from the Commission to the Member States in the contested decision. Apart from the fact that it is impossible for the Commission to issue such instructions in the contested decision, it must be pointed out that those negative consequences are purely hypothetical and so cannot affect the legality of that decision.
105    For those reasons, the second part of the second plea and, therefore, the second plea in its entirety must be rejected as unfounded.
The third plea, alleging infringement of the procedural rules laid down in Annex I to Directive 2006/42
106    The applicant claims that the Commission has infringed the procedural rules laid down in Annex I to Directive 2006/42 in so far as no reference is made to the general principle of the state of the art in the contested decision or in the SWEA decision. According to the applicant, the observations by the SWEA and the Commission with regard to the access systems and work platforms on the products at issue are disproportionate since the technical solution that the applicant employed, although not fully compliant with harmonised standard EN ISO 14122‑2:2001, was in line with the state of the art at the time of the inspection and there was no better alternative, as confirmed by the independent study on which the Commission broadly based the contested decision. More specifically, the applicant submits that the provision of that harmonised standard stipulating 500 mm clear width of access at a lower height of 1 080 mm goes beyond the state of the art.
107    The Commission contests the applicant’s arguments.
108    As a preliminary point, it should be noted that Article 7(1) and (2) of Directive 2006/42 provides, inter alia, that Member States are to consider machinery bearing the CE marking and accompanied by the EC declaration of conformity to comply with the provisions of that directive and that machinery manufactured in accordance with a harmonised standard, the references to which have been published in the Official Journal of the European Union, is to be presumed to comply with the EHSRs covered by that harmonised standard. In other words, compliance with a harmonised standard makes it possible to presume that machinery complies with the respective EHSRs. Similarly, under Article 2(l) of Directive 2006/42, a harmonised standard is a technical specification adopted by a standardisation body on the basis of a remit issued by the Commission and is non-binding. It is apparent from those provisions that the technical solutions proposed by a harmonised standard are not mandatory, but that their application confers on the product at issue the benefit of the presumption of conformity with the provisions of Directive 2006/42.
109    However, while remaining free to choose the methods for assessing the conformity of their products with the EHSRs, the manufacturer or its authorised representative is obliged not only to ensure such conformity, but also to demonstrate it in the technical file, as provided for in Annex VII to Directive 2006/42. The choice not to apply harmonised standards means that the presumption of conformity mentioned above cannot be applied either and, therefore, that the conformity of products must be demonstrated by other means.
110    It should be pointed out that, in the light of the applicant’s arguments, the third plea relates to recital 10 of the contested decision, in which the Commission confirmed that the EHSRs set out in points 1.1.6, 1.6.1 and 1.6.2 of Annex I to Directive 2006/42, according to which the machinery must be designed and constructed in a manner which eases the work of an operator, allowing him or her to work in a comfortable and safe way, outside danger zones, had not been complied with as regards the machines at issue. More specifically, the Commission, on the basis of the SWEA decision, took the view that there was a risk of injury when accessing the machines at issue due to the narrow walkway of 190 mm between the machinery or to an abrupt end of the front of the machine of 1 000 mm.
111    It should be noted that, as regards the 190 mm width of the walkway, the applicant’s arguments concern in particular the findings of the Commission, or even directly of the SWEA. In essence, first, the applicant claims that they failed to take account of the principle of the state of art given that there was no reference to that principle in their respective decisions. Secondly, according to the applicant, its technical solution in question corresponded to the state of the art at the time of the inspection, whereas the requirement laid down by harmonised standard EN ISO 14122‑2:2001 went beyond the state of the art.
112    Primarily, first of all, it must be borne in mind that it is common ground that, in the EC declaration of conformity, the applicant relied, inter alia, on harmonised standard EN ISO 14122‑2:2001. In other words, the applicant chose freely to apply that harmonised standard in order to establish that the products at issue complied with the EHSRs set out in points 1.1.6, 1.6.1 and 1.6.2 of Annex I to Directive 2006/42.
113    In addition, harmonised standard EN ISO 14122‑2:2001 lays down safety technical requirements for permanent means of access to machinery and specifically for machinery working platforms and walkways. Although the standard in question provides for a width of 500 mm, it is common ground that the walkways installed on the machines at issue had a width of 190 mm. Thus, it must be held, as the Commission submits, that, although the applicant chose to apply harmonised standard EN ISO 14122‑2:2001, it did not comply with it.
114    Lastly, as regards the conditions for the application of the EHSRs, recital 14 of Directive 2006/42 states that EHSRs should be applied with discernment to take account of the state of the art at the time of construction and of technical and economic requirements. In addition, point 3 of the first title, entitled ‘General Principles’, of Annex I to that directive provides that, although the EHSRs set out in that annex are mandatory, it cannot be excluded that it may not be possible to meet the objectives set by them. It states that, in that event, the machinery must, as far as possible, be designed and constructed with the purpose of approaching these objectives.
115    In the present case, in the first place, the applicant claims that the Commission and the SWEA infringed the procedural rules laid down in Annex I to Directive 2006/42, on the ground that no reference was made to the principle of the state of the art in either the contested decision or in the SWEA decision. First, it should be noted that the applicant does not specify in any way which procedural rules it claims have been infringed, but cites the provisions requiring compliance with the principle of the state of the art in the application of the EHSRs. It is clear that, although, recital 14 of Directive 2006/42 and point 3 of the first title of Annex I to that directive, as referred to in the preceding paragraph, provide that account should be taken of the state of the art for the purposes of the application of the EHSRs, the directive does not lay down any procedural rule requiring the provision, in the decision of a competent national authority or in the Commission decision adopted in the context of the safeguard clause procedure, of an analysis of the application of that principle. Secondly, the fact that an analysis of the application of the principle of the state of the art was not provided in the contested decision or in the SWEA decision does not in itself imply an infringement of that principle. For those reasons, the applicant’s arguments concerning the absence of any reference to that principle in the decisions at issue cannot succeed.
116    Secondly, it is important to point out that, under Article 11(2)(b) of Directive 2006/42, the reasons for the non-conformity of machinery which a Member State must communicate to the Commission and to the other Member States on account of the safeguard measure that it has decided to adopt include the incorrect application of the harmonised standards. In other words, even if the harmonised standards are not obligatory, the choice to apply them and to rely on them in the EC declaration of conformity requires that they be properly applied. Where such standards are applied incorrectly, the competent national authority is entitled to declare the non-compliance of the products in measures taken under the safeguard clause procedure within the meaning of Article 11 of Directive 2006/42. For those reasons, the Commission was right to find, in recital 10 of the contested decision, with regard to the safeguard measure adopted by the SWEA, that, with regard to the machines at issue, the EHSRs set out in points 1.1.6, 1.6.1 and 1.6.2 of Annex I to Directive 2006/42 had not been complied with, due to the incorrect application of the harmonised standard.
117    As the Commission rightly submits, since the applicant had chosen to refer to a harmonised standard in the EC declaration of conformity, it should have complied fully with that standard. If, as in the present case, the standard had not been complied with as regards the width of the walkways of the machines at issue, the applicant should have presented another technical solution ensuring the same level of safety and should have shown that the products at issue complied with the respective EHSRs, something which it did not do.
118    In the third place, as regards the application of the principle of the state of the art as regards the requirement of a width of 500 mm for the walkways of the machines at issue, three points should be noted.
119    First, it should be made clear that a harmonised standard, the references to which have been published in the Official Journal of the European Union, forms part of EU law (see, by analogy, judgment of 27 October 2016, James Elliott Construction, C‑613/14, EU:C:2016:821, paragraph 40).
120    Secondly, the Commission rightly submits that, although harmonised standards are not mandatory, they reflect the required level of safety and take account of the state of the art.
121    In that regard, it is important to note that paragraph 162 of the Guide to application of the ‘Machinery’ Directive 2006/42, published by the Commission in June 2010, now states, inter alia, that harmonised standards provide a good indication of the state of the art at the time of their adoption. In addition, according to the same document, developments in the state of the art are reflected in subsequent amendments or revisions to the harmonised standards.
122    Thirdly, it should be added that the applicant refers to the findings of the independent study in order to support its arguments that there was no better option. In that regard, it must be stated that those conclusions, which relate to the possibility of correcting defects in machines already installed and not to the state of the art in general at the date of the SWEA decision, relate to the situation at the Gustavsberg bowling centre, after the modifications made to the products at issue following the adoption of the SWEA decision. However, as has already been stated in paragraph 69 above, those conclusions are not relevant in the present case.
123    It follows from the foregoing that the applicant’s argument that the requirement concerning the width of the walkways of the machines at issue went beyond the state of the art must be rejected as unfounded.
124    In the light of the foregoing considerations, the third plea in law must be rejected as unfounded.
The fourth plea in law, alleging infringement of the principle of good administration
125    The applicant claims that the Commission infringed the principle of good administration, in that it did not ask it to provide the technical file for the products at issue. In that regard, it complains that the Commission found that no link had been established in the technical file, as required by Annex VII to Directive 2006/42, between the references of the harmonised standards and the respective EHSRs, even though it had not obtained that technical file. According to the applicant, since neither the SWEA nor the Commission asked it to provide the technical file, no conclusions could be drawn from that file and, accordingly, the contested decision is vitiated by an error of fact.
126    The Commission contests the applicant’s arguments.
127    First, the lack of precision in the contested decision alleged by the applicant, as regards the technical file, does not affect the analysis carried out by the SWEA or the Commission and cannot result in the annulment of the contested decision. The fact that the applicant did not establish in the technical file a link between the references of the harmonised standards and the respective EHSRs, in accordance with the requirements of Directive 2006/42, was not the reason why the SWEA adopted the safeguard measures or why the Commission considered those measures to be justified. The reasons relied on by the Kingdom of Sweden to justify the safeguard measures were, pursuant to Article 11(2)(a) and (b) of Directive 2006/42, the failure of the products at issue to satisfy certain EHSRs set out in Annex I to Directive 2006/42 and the incorrect application of certain harmonised standards.
128    It should be added that, as is apparent from recitals 10, 11 and 13 of the contested decision, the Commission found that, even if those references had not been given by the applicant, the Kingdom of Sweden had been able to list the EHSRs to which those references to the harmonised standard might have related. Thus, those deficiencies alleged against the applicant were identified with a view to providing information and precision rather than as an additional argument in support of the confirmation of the safeguard measures at issue.
129    Secondly, the fact that the Commission did not request the technical file cannot, in any event, alter the analysis and conclusions as to the non-compliance of the products at issue with Directive 2006/42 or reverse the burden of proof, which is borne by the applicant, as recalled in paragraph 109 above.
130    Thus, the arguments put forward by the applicant in the context of the fourth plea cannot result in the annulment of the contested decision.
131    Furthermore, it is apparent from the detailed description of the technical deficiencies in the SWEA decision, as summarised in paragraph 3 above, that, although the applicant did not provide it with the technical file, the SWEA clearly had information regarding the technical characteristics of the machines at issue. Furthermore, it must be stated that the applicant has never disputed the accuracy of the data available to the SWEA, in particular the 190 mm width of the walkway.
132    For those reasons, the circumstances relied on by the applicant, in respect of the alleged infringement of its rights, cannot have any bearing on the conclusions relating to the non-conformity of the products, as set out in the contested decision. Consequently, the fourth plea in law must be rejected as ineffective.
The fifth plea, alleging infringement of Article 6 of Directive 2006/42 and of the principle of equal treatment
133    The applicant claims that the Commission infringed Article 6 of Directive 2006/42, on freedom of movement, and the principle of equal treatment, in that the safeguard measures are specifically directed at the applicant’s products, even though similar and less compliant products are offered for sale by other manufacturers on the EU internal market. Moreover, by providing for the withdrawal and recall of the products at issue only, the contested decision is claimed to distort the market since, on the one hand, similar machines offered by other manufacturers are still authorised on the EU internal market and, on the other, the contested decision creates the false impression that only the applicant’s products do not comply with Directive 2006/42. According to the applicant, its products are widely regarded as the best possible technical solution on the pinsetter machine market. It notes that, in adopting the contested decision, the Commission did not seek to determine whether the SWEA had subjected other similar products manufactured by other manufacturers to comparable checks or to requirements similar to those applied to the machines at issue. In that regard, the applicant refers to the case-law in accordance with which such a situation is contrary to the principle of equal treatment and to the provisions of Directive 2006/42 (judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502).
134    The Commission contests the applicant’s arguments.
135    It is apparent from the applicant’s arguments that the fifth plea is divided into two parts, namely, first, alleging infringement of Article 6 of Directive 2006/42, relating to freedom of movement, and, secondly, alleging infringement of the principle of equal treatment.
–       The first part, alleging infringement of Article 6 of Directive 2006/42, relating to freedom of movement
136    As regards the alleged infringement of Article 6 of Directive 2006/42, it should be noted that, under that article, Member States may not prohibit, restrict or impede the placing on the market or putting into service in their territory of machinery which complies with that directive. Thus, the Member States are required to respect the free movement of machinery, provided that the machinery complies with the requirements of that directive.
137    According to the case-law, any risk connected with the installation, maintenance or operation of the machinery in question, whether through the intended use or any reasonably foreseeable misuse, may justify invoking the safeguard clause under Article 11 of the directive. However, that article requires that the risk forming the ground for implementation of the safeguard clause be ‘ascertained’ and therefore that the Member State relying on it proves to the requisite legal standard that such a risk is real. If that cannot be shown, impairment of the principle of free movement caused by the national measure adopted pursuant to the safeguard clause contained in that provision cannot be regarded as ‘justified’ for the purposes of that clause (see judgment of 3 May 2018, Grizzly Tools v Commission, T‑168/16, not published, EU:T:2018:246, paragraph 54 and the case-law cited). In that regard, it should be pointed out that the obligation on the Member State to establish the existence of the risk forming the ground for implementation of the safeguard clause does not in any way affect the burden of proof borne by the applicant to ensure and demonstrate that its products comply with the EHSRs, as stated in paragraph 109 above.
138    The existence of a risk to the health or safety of persons within the meaning of Article 11(1) of Directive 2006/42 may be assessed, among other criteria, in the light of the EHSRs imposed on machinery manufacturers by Article 5(1)(a) of Directive 2006/42 and Annex I to that directive. Compliance with those requirements, the aim of which is to ensure that the design and construction of the machinery takes into account the associated risks (part entitled ‘General principles’ and point 1.1.2 of Annex I to Directive 2006/42), is a precondition for the machinery being placed on the market (Article 4(1) and Article 5(1) of the directive). Meanwhile, pursuant to Article 11(2) of Directive 2006/42, non-compliance can be used to justify a withdrawal or prohibition measure (see judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 58 and the case-law cited).
139    That being so, it should be recalled that the power which Article 11(1) of Directive 2006/42 confers on the competent national authorities constitutes a derogation from the principle of free movement laid down by Directive 2006/42 which can be justified only where there is a risk associated with the intended use or reasonably foreseeable misuse of the machinery in question, namely use which may result from readily predictable human behaviour. In that respect, the fact that the national authorities evaluate such a risk from the point of view of an average and reasonably diligent user, and not in an abstract way, helps to ensure that there is no unjustified impairment of the free movement of machinery, for the purposes of Article 11(1) of the directive. However, when the reality of such a risk is ascertained to the requisite legal standard, by reference to an average and reasonably diligent user, the fact that that user has received prior notice of the existence of the risk is in itself irrelevant, given both the hierarchy of the prevention and information requirements imposed on machinery manufacturers by Directive 2006/42 and the consequences attached to non-compliance with those obligations (judgments of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 64 and 84, and of 3 May 2018, Grizzly Tools v Commission, T‑168/16, not published, EU:T:2018:246, paragraph 56).
140    It follows from those provisions that, where, as in the present case, machinery does not comply with the provisions of Directive 2006/42, its free movement may be restricted. Therefore, the applicant’s claim that there has been an infringement of Article 6 of Directive 2006/42 is manifestly incorrect. The first part of the fifth plea must therefore be rejected as unfounded.
–       The second part, alleging infringement of the principle of equal treatment
141    As regards an alleged infringement of the principle of equal treatment, two points must be analysed in that respect.
142    First, it should be pointed out that, in support of the complaint alleging infringement of the principle of equal treatment, the applicant submits that the safeguard measures are applied to the products at issue, whereas other less compliant products, from other manufacturers, remain on the market. Nevertheless, in the present case, it is not apparent from the documents before the Court that the applicant provided any evidence capable of substantiating that claim. That claim is, therefore, purely hypothetical.
143    Secondly, it should be noted that both the applicant and the Commission, in support of their arguments, refer to the judgment of 15 July 2015, CSF v Commission (T‑337/13, EU:T:2015:502).
144    In that regard, it must be recalled that, in paragraph 104 of the judgment of 15 July 2015, CSF v Commission (T‑337/13, EU:T:2015:502), the Court held that Article 11 of Directive 2006/42 did not oblige the Commission, specifically when examining whether or not the measures notified to it by Member States are justified, to determine in addition whether or not those measures comply with the principle of equal treatment. Thus, according to the case-law, where a national measure is justified for the purposes of Article 11 of Directive 2006/42, as is the case in the present instance, the decision in which the Commission acknowledges that it is justified can therefore not be challenged on the ground that machines similar to that covered by the measure are present on the national market in question but have not been the subject of similar measures, in breach of the principle of equal treatment (see judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 105 and the case-law cited).
145    It must therefore be held, as submitted by the Commission, that the applicant, by referring to the judgment of 15 July 2015, CSF v Commission (T‑337/13, EU:T:2015:502), carried out a selective reading and interpretation of that judgment, which disregards the entirety of the Court’s assessments therein. Thus, the applicant is wrong to rely on that case-law and, accordingly, its arguments regarding infringement of the principle of equal treatment cannot succeed.
146    Consequently, the second part of the fifth plea and, therefore, the fifth plea in its entirety must be rejected as unfounded and the action as a whole must be dismissed as unfounded.
Costs
147    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
148    In the present case, the applicant has failed in its pleas. In addition, the Commission has expressly requested that the applicant be ordered to pay the costs.
149    The applicant must therefore be ordered to bear its own costs and to pay those incurred by the Commission.
150    Article 138(1) of the Rules of Procedure provides that Member States which intervene in the proceedings are to bear their own costs. The Kingdom of Sweden must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Brunswick Bowling Products LLC to pay the costs;
3.      Orders the Kingdom of Sweden to bear its own costs.
Tomljenović
Schalin
Škvařilová-Pelzl
Delivered in open court in Luxembourg on 8 September 2021.
E. Coulon
M. van der Woude
Registrar
President
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
The admissibility of the complaint, raised in the context of the second plea in law, alleging infringement of the principle of good administration
Substance
The first plea in law, alleging infringement of the procedural rules contained in Article 11 of Directive 2006/42 and Article 18(5) of Regulation No 765/2008 and of the principle of proportionality as stipulated in Article 18(4) of that regulation
– The first part, alleging infringement of the procedural rules laid down in Article 11 of Directive 2006/42 and Article 18(5) of Regulation No 765/2008
– The second part, alleging infringement of the principle of proportionality
The second plea in law: alleging infringement of the principles of legal certainty, protection of legitimate expectations and good administration
– The first part, alleging infringement of the principles of legal certainty and of the protection of legitimate expectations
– The second part, alleging infringement of the principles of good administration and legal certainty
The third plea, alleging infringement of the procedural rules laid down in Annex I to Directive 2006/42
The fourth plea in law, alleging infringement of the principle of good administration
The fifth plea, alleging infringement of Article 6 of Directive 2006/42 and of the principle of equal treatment
– The first part, alleging infringement of Article 6 of Directive 2006/42, relating to freedom of movement
– The second part, alleging infringement of the principle of equal treatment
Costs
*      Language of the case: English.
1      The present judgment is the subject of publication in extract form.