JUDGMENT OF THE COURT (Tenth Chamber)
27 April 2023
(*)
(Appeal – Consumer protection – Directive 2006/42/EC – Protection of the health and safety of consumers and workers from risks arising from the use of machinery – Measures adopted by the Kingdom of Sweden – Prohibition on the placing on the market of a type of pinsetter machine and a supplementary kit – Withdrawal of machines already placed on the market – Decision of the European Commission declaring the measures justified)
In Case C‑694/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 November 2021,
Brunswick Bowling Products LLC,
formerly Brunswick Bowling & Billiards Corporation, established in Muskegon (United States), represented by R. Martens, avocat,
appellant,
the other parties to the proceedings being:
European Commission, represented by M. Huttunen and P. Ondrůšek, acting as Agents,
defendant at first instance,
Kingdom of Sweden, represented initially by H. Eklinder, J. Lundberg, C. Meyer-Seitz, A. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson, H. Shev and O. Simonsson, and subsequently by H. Eklinder, C. Meyer-Seitz, A. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson, H. Shev and O. Simonsson, acting as Agents,
intervener at first instance,
THE COURT (Tenth Chamber),
composed of M. Ilešič, acting as President of the Chamber, I. Jarukaitis and Z. Csehi (Rapporteur), Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        By its appeal, Brunswick Bowling Products LLC, formerly Brunswick Bowling & Billiards Corporation (‘Brunswick’), asks the Court of Justice to set aside the judgment of the General Court of the European Union of 8 September 2021, Brunswick Bowling Products v Commission (T‑152/19, EU:T:2021:539; ‘the judgment under appeal’), by which the General Court dismissed its action against 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 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 decision at issue’).
Legal context
Directive 2006/42
2        Recitals 14, 20, 23, 24 and 26 of Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (OJ 2006 L 157, p. 24), as amended by Directive 2009/127/EC of the European Parliament and of the Council of 21 October 2009 (OJ 2009 L 310, p. 29) (‘Directive 2006/42’), state:
‘(14)      The essential health and safety requirements should be satisfied in order to ensure that machinery is safe; these requirements 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.
…
(20)      Manufacturers should retain full responsibility for certifying the conformity of their machinery to the provisions of this Directive. …
…
(23)      The manufacturer or his authorised representative should also ensure that a risk assessment is carried out for the machinery which he wishes to place on the market. For this purpose, he should determine which are the essential health and safety requirements applicable to his machinery and in respect of which he must take measures.
(24)      It is essential that, before drawing up the EC declaration of conformity, the manufacturer or his authorised representative established in the Community should prepare a technical construction file. However, it is not essential that all documentation should be permanently available in material form, but it must be possible to make it available on request. …
…
(26)      Member States should provide for penalties applicable to infringements of the provisions of this Directive. Those penalties should be effective, proportionate and
dissuasive.’
3        Article 2 of Directive 2006/42, entitled ‘Definitions’, is worded as follows:
‘…
The following definitions shall apply:
…
(m)      “essential health and safety requirements” means mandatory provisions relating to the design and construction of the products subject to this Directive to ensure a high level of protection of the health and safety of persons and, where appropriate, of domestic animals and property and, where applicable, of the environment.
The essential health and safety requirements are set out in Annex I. …’
4        Article 4 of that directive, entitled ‘Market surveillance’, provides, in paragraph 1:
‘Member States shall 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 this 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.’
5        Article 5 of that directive, entitled ‘Placing on the market and putting into service’, provides, in paragraph 1:
‘Before placing machinery on the market and/or putting it into service, the manufacturer or his authorised representative shall:
(a)      ensure that it satisfies the relevant essential health and safety requirements set out in Annex I;
(b)      ensure that the technical file referred to in Annex VII, part A is available;
(c)      provide, in particular, the necessary information, such as instructions;
(d)      carry out the appropriate procedures for assessing conformity in accordance with Article 12;
(e)      draw up the EC declaration of conformity in accordance with Annex II, part 1, Section A and ensure that it accompanies the machinery;
(f)      affix the CE marking in accordance with Article 16.’
6        According to Article 7 of that directive, entitled ‘Presumption of conformity and harmonised standards’:
‘1.      Member States shall regard machinery bearing the CE marking and accompanied by the EC declaration of conformity, the content of which is set out in Annex II, part 1, Section A, as complying with the provisions of this Directive.
2.      Machinery manufactured in conformity with a harmonised standard, the references to which have been published in the Official Journal of the European Union, shall be presumed to comply with the essential health and safety requirements covered by such a harmonised standard.
3.      The Commission shall publish in the Official Journal of the European Union the references of the harmonised standards.
…’
7        Article 11 of Directive 2006/42, entitled ‘Safeguard clause’, provides:
‘1.      Where a Member State ascertains that machinery covered by this Directive, bearing the CE marking, accompanied by the EC declaration of conformity and used in accordance with its intended purpose or under reasonably foreseeable conditions, is liable to endanger the health or safety of persons or, where appropriate, domestic animals or property or, where applicable, the environment, it shall take all appropriate measures to withdraw such machinery from the market, to prohibit the placing on the market and/or putting into service of such machinery or to restrict the free movement thereof.
2.      The Member State shall immediately inform the Commission and the other Member States of any such measure, indicating the reasons for its decision and, in particular, whether the non-conformity is due to:
(a)      failure to satisfy the essential requirements referred to in Article 5(1)(a);
(b)      incorrect application of the harmonised standards referred to in Article 7(2);
…
3.      The Commission shall enter into consultation with the parties concerned without delay.
The Commission shall consider, after this consultation, whether or not the measures taken by the Member State are justified, and it shall communicate its decision to the Member State which took the initiative, the other Member States, and the manufacturer or his authorised representative.
…
5.      Where machinery does not conform and bears the CE marking, the competent Member State shall take appropriate action against whomsoever has affixed the marking and shall so inform the Commission. The Commission shall inform the other Member States.
6.      The Commission shall ensure that Member States are kept informed of the progress and outcome of the procedure.’
8        According to Article 14(7) of that directive:
‘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 this Directive.’
9        Article 19 of that directive, entitled ‘Cooperation between Member States’, provides:
‘1.      Member States shall take the appropriate measures to ensure that the competent authorities referred to in Article 4(3) cooperate with each other and with the Commission and transmit to each other the information necessary to enable this Directive to be applied uniformly.
2.      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 this Directive.’
10      Annex I to that directive lists the essential health and safety requirements relating to the design and construction of machinery. Point 3 of the first part, entitled ‘General principles’, of that annex is worded as follows:
‘The essential health and safety requirements laid down in this Annex are mandatory; [h]owever, taking into account the state of the art, it may not be possible to meet the objectives set by them. In that event, the machinery must, as far as possible, be designed and constructed with the purpose of approaching these objectives.’
11      Annex VIII to Directive 2006/42, entitled ‘Assessment of conformity with internal checks on the manufacture of machinery’, is worded as follows:
‘1.      This Annex describes the procedure by which the manufacturer or his authorised representative, who carries out the obligations laid down in points 2 and 3, ensures and declares that the machinery concerned satisfies the relevant requirements of this Directive.
2.      For each representative type of the series in question, the manufacturer or his authorised representative shall draw up the technical file referred to in Annex VII, part A.
3.      The manufacturer must take all measures necessary in order that the manufacturing process ensures compliance of the manufactured machinery with the technical file referred to in Annex VII, part A, and with the requirements of this Directive.’
Regulation (EC) No 765/2008
12      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) is worded as follows:
‘Member States shall establish, implement and periodically update their market surveillance programmes. Member States shall draw up either a general market surveillance programme or sector specific programmes, covering the sectors in which they conduct market surveillance, communicate those programmes to the other Member States and the Commission and make them available to the public, by way of electronic communication and, where appropriate, by other means. …’
Background to the dispute and the decision at issue
13      The background to the dispute is set out in paragraphs 1 to 11 of the judgment under appeal. For the purposes of the present proceedings, those paragraphs may be summarised as follows.
14      Brunswick 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, inter alia, bowling equipment. The appellant 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.
15      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 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.
16      According to the SWEA decision, the products at issue had a number of defects. The main noted irregularities related to the visibility into the danger zone of the machines at issue during the start-up procedure, the insufficient width available for movement in the ball return area, namely the 190-mm-wide walkways, 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.
17      As regards the withdrawal of the products at issue, a number of possibilities were offered to Brunswick in the SWEA decision, 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.
18      As regards the first possibility, consisting of correcting the defects in the products at issue, the SWEA did not require Brunswick to make all the required modifications. Thus, Brunswick was not required to implement modifications concerning, first of all, the fitting of three separate lights indicating different modes in the control panel, next, the enlargement of the access points between the machines which are also used as work platforms and, lastly, the overview of the danger zone.
19      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 15 to 18 of the present judgment, 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.
20      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.
21      In accordance with Article 11(3) of Directive 2006/42, the Commission, by letter of 11 April 2014, asked the appellant, 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 initiating proceedings before the General Court, the appellant 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.
22      The Commission commissioned a study by independent experts, of 8 May 2017, to determine whether the products at issue complied with Directive 2006/42. By letter dated 22 June 2018, the appellant submitted its observations on that study.
23      By the decision at issue, 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 15 to 18 of the present judgment, were justified.
24      More specifically, in recital 14 of the decision at issue, 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 that Member State and the observations communicated by the manufacturer confirmed that the machines at issue 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 that 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 of that annex 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 taken by the Kingdom of Sweden had to be considered as justified.
The procedure before the General Court and the judgment under appeal
25      By document lodged at the Registry of the General Court on 8 March 2019, Brunswick brought an action for annulment of the decision at issue.
26      In support of that action, Brunswick relied on five pleas in law. The first part of the first plea alleged infringement of the procedural rules laid down in Article 11 of Directive 2006/42 and in Article 18(5) of Regulation No 765/2008, on the ground that the appellant had been misled by a number of competent national market surveillance authorities, and the second part alleged infringement of the principle of proportionality, referred to in Article 18(4) of Regulation No 765/2008, on the ground that it was possible to use less onerous measures in order to comply with Directive 2006/42. The second plea alleged infringement of the principles of legal certainty, the protection of legitimate expectations and good administration. The third plea alleged infringement of the procedural rules laid down in Annex I to Directive 2006/42 in so far as no reference was made to the principle of the state of the art, either in the decision at issue or in the SWEA decision. The fourth plea alleged infringement of the principle of good administration on the ground that the Commission had found that no link had been established in the technical file between the references of the harmonised standards and the respective EHSRs, even though it had not obtained, or even requested the appellant to provide, that technical file. Lastly, the fifth plea alleged infringement of Article 6 of Directive 2006/42 and the principle of equal treatment.
27      By the judgment under appeal, the General Court rejected the appellant’s five pleas and, consequently, dismissed the action for annulment in its entirety. For the purposes of the present appeal, it is necessary to set out, in essence, the reasons given by the General Court for rejecting the first part of the first plea and the third and fourth pleas.
28      In response to the first part of the first plea, the General Court held, inter alia, in paragraph 52 of the judgment under appeal, that, notwithstanding the importance of the obligation on the Member States to ensure the correct and uniform application of Directive 2006/42 and the obligation on those States to take appropriate measures to ensure that the competent national authorities cooperate with each other and with the Commission, none of those obligations was such as to compel the Commission and the Member States in any way to coordinate the adoption of technical solutions in those Member States. The General Court held, on the contrary, that the uniform application of Directive 2006/42 did not necessarily mean that identical technical solutions are required in all the Member States. Furthermore, the General Court found, in paragraph 54 of the judgment under appeal, that the decision
at issue required 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 General Court also stated that the direct consequence of the decision at issue was to trigger national procedures that had an impact on the right that the appellant 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. The General Court concluded, in paragraph 55 of the judgment under appeal, that the correct and uniform application of Directive 2006/42 was 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. It also stated, in that paragraph of the judgment under appeal, that, contrary to what the appellant claimed in that regard, Directive 2006/42 did 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. It therefore rejected as unfounded the first part of the first plea relied on by the appellant in support of its action for annulment.
29      In paragraphs 106 to 124 of the judgment under appeal, the General Court rejected the third plea in that action as unfounded. In particular, in paragraphs 108 to 116 of the judgment under appeal, the General Court stated, inter alia, that, under Article 7(2) of Directive 2006/42, the fact that machinery has been manufactured in conformity with a harmonised standard allows the presumption that it complies with the respective EHSRs. In that regard, it stated that it was common ground that, in the EC declaration of conformity relating to the products at issue, the appellant itself relied, inter alia, on harmonised standard EN ISO 14122‑2:2001, with the result that the appellant 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. In other words, the appellant had chosen 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. The General Court then stated, as had the Commission, that, although the appellant had chosen to apply that harmonised standard, it had not, however, complied with it. In that regard, the General Court stated 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. According to the General Court, 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. It concluded that, where such standards are applied incorrectly, the competent national authority is entitled to declare the non-compliance of the products concerned
by taking measures under the safeguard clause procedure referred to in Article 11 of Directive 2006/42. For those reasons, the General Court held that the Commission had been fully entitled to find, with regard to the safeguard measure adopted by the SWEA, that, in respect of the machines at issue, the appellant had not 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 due to the incorrect application of the harmonised standard.
30      In addition, in paragraph 115 of the judgment under appeal, the General Court held, first, that Directive 2006/42 did not lay down any procedural rule under which the decision of a national authority competent to monitor the conformity of machinery, or the Commission’s decision, adopted under the safeguard clause, must contain an analysis of the principle of the state of the art and, second, that the fact that such an analysis was not provided did not in itself imply an infringement of that principle. Furthermore, the General Court confirmed, in paragraphs 120 and 121 of the judgment under appeal, that, although harmonised standards are not mandatory, they take account of the state of the art, and rejected, in paragraph 123 of the judgment under appeal, the appellant’s argument that the requirement concerning the width of the walkways of the machines at issue went beyond the state of the art.
31      In paragraphs 127 to 132 of the judgment under appeal, the General Court rejected the fourth plea as ineffective. It stated, first, that the alleged lack of precision which, according to the appellant, vitiated the decision at issue was not capable of calling into question the merits of the analysis carried out by the SWEA or by the Commission or, on that basis, of resulting in the annulment of that decision. Secondly, it held that the fact that the Commission had not requested the technical file was, in any event, also incapable of calling into question the analysis and conclusions as to the non-compliance of the products at issue with Directive 2006/42 or of reversing the burden of proof borne by the appellant.
Procedure before the Court of Justice and forms of order sought
32      By its appeal, Brunswick claims that the Court should:
–        principally, set aside
points 1 and 2 of the operative part of the judgment under appeal and refer the case back to the General Court;
–        in the alternative, set aside points 1 and 2 of the operative part of the judgment under appeal, rule itself on the action at first instance and annul the decision at issue in its entirety; and
–        order the Commission to pay all of the costs.
33      The Kingdom of Sweden and the Commission contend that the Court should dismiss the appeal and order the appellant to pay the costs.
34      On 14 February 2022, the appellant submitted an application for leave to lodge a reply. However, the reply was lodged out of time and did not comply with the formal requirements set out in paragraph 40 of the Practice Directions to Parties Concerning Cases Brought Before the Court (OJ 2020 L 42 I, p. 1). The appellant therefore submitted a request for an extension of the deadline in order to submit a new version of its reply. However, that request was submitted after the expiry of the time limit for lodging the reply.
35      Consequently, by decision of 3 May 2022, the President of the Court decided not to add the reply to the file and decided not to grant the appellant’s request for an extension of the deadline.
The appeal
36      In support of its appeal, Brunswick relies on two grounds of appeal. The first ground of appeal alleges infringement of Article 263 and Article 256(1) TFEU and of Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of the principle of good administration, in so far as the General Court erred in law in its review of the legality of the decision at issue. The second ground of appeal alleges infringement of the second paragraph of Article 296 TFEU, of Article 41(1) and (2)(c) of the Charter and of the obligation to state reasons.
The first ground of appeal
Arguments of the parties
37      By its first ground of appeal, Brunswick submits that the General Court erred in law, in breach of Article 263 and Article 256(1) TFEU, in so far as it failed to take into account all the relevant facts and failed to examine whether the Commission had all the necessary and relevant information in order to adopt the decision at issue, and whether the information on which that decision was based was factually accurate, reliable, complete and consistent. The appellant also submits that that failure on the part of the General Court constitutes an infringement of Article 41(1) of the Charter and of the principle of good administration.
38      By that ground of appeal, Brunswick refers, first, to paragraphs 35, 42, 52 and 55 of the judgment under appeal, relating to the first part of the first plea in law of the action before the General Court, which alleged infringement of the procedural rules laid down in Article 11 of Directive 2006/42 and in Article 18(5) of Regulation No 765/2008, on the ground that the appellant was misled by a number of competent market surveillance authorities in other Member States, namely in Denmark, Germany, Finland and the United Kingdom, since the products at issue were developed in close collaboration with those authorities and the latter found that those products complied with Directive 2006/42. Secondly, that ground of appeal is directed against paragraph 115 of the judgment under appeal, relating to the third plea in law of the action before the General Court, alleging infringement of the procedural rules laid down in Annex I to Directive 2006/42 in so far as no reference was made to the principle of the state of the art in the decision at issue or in the SWEA decision. Thirdly and lastly, that ground of appeal is directed against paragraphs 127 to 129 of that judgment, relating to the fourth plea in law of the action before the General Court, alleging infringement of the principle of good administration in so far as the Commission found that no link had been established in the technical file between the references of the harmonised standards and the respective EHSRs, even though that institution had not requested the appellant to provide the technical file.
39      Brunswick submits that the General Court could not conclude that the fact that those elements were not analysed in the decision at issue did not affect the analysis carried out by the SWEA or by the Commission and was not capable of leading to the annulment of that decision or, in any event, of altering the analysis and conclusions as to the non-compliance of the products at issue with Directive 2006/42. According to the appellant, the General Court should have found that there was an incomplete examination of the relevant factors
that were capable of enabling the Commission to establish that the safeguard measures taken by the Kingdom of Sweden were justified.
40      The Commission contends, principally, that the first ground of appeal is inadmissible, on the basis that the appellant does not have the requisite interest in raising it or that, in any event, the appellant has not provided the legal arguments necessary in support of that ground of appeal, while there are other grounds justifying the judgment under appeal, namely the non-conformity of the products at issue.
41      In the alternative, the Commission contends that the first ground of appeal should be rejected as unfounded.
42      The Kingdom of Sweden states that it ‘contests’ the present appeal and refers generally to its written and oral submissions in Case T‑152/19.
Findings of the Court
–       Admissibility of the first ground of appeal
43      In the first place, as regards the plea of inadmissibility alleging a lack of interest in bringing proceedings, suffice it to note that the existence of such an interest presupposes that the appeal is capable, if successful, of procuring an advantage to the party bringing it (see, to that effect, judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, C‑550/07 P, EU:C:2010:512, paragraph 23 and the case-law cited).
44      In the present case, the Commission’s assertion that Brunswick is not in a position to establish, even if the first ground of its appeal were upheld, that the products at issue comply with the provisions of Directive 2006/42 is not such as to call into question the appellant’s interest in bringing proceedings. Such a line of argument, which seeks to demonstrate that the General Court was fully entitled to hold that the arguments raised by the appellant did not affect the assessment carried out by the SWEA and the Commission as to the conformity of the machines at issue and, consequently, cannot lead to the annulment of the decision at issue, falls not within the scope of the admissibility of the first ground of appeal but within the scope of the merits of that ground.
45      In the second place, as regards the plea of inadmissibility alleging that Brunswick has not provided the legal arguments necessary in support of the first ground of appeal, it should be noted that it follows from Article 256 TFEU, from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, from Article 168(1)(d) and from Article 169 of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments put forward specifically in support of that.
46      In the present case, it should be noted that, by the first ground of its appeal, Brunswick complains that the General Court failed to examine whether the information on which the Commission relied in order to adopt the decision at issue was exhaustive, factually accurate and relevant. Thus, the appellant criticises the scope of the review of legality carried out by the General Court.
47      Accordingly, the pleas of inadmissibility raised by the Commission must be rejected.
–       The substance of the first ground of appeal
48      By its first ground of appeal, Brunswick complains, in essence, that the General Court erred in law in that it failed, in its examination of the legality of the decision at issue, to take into consideration three elements put forward by the appellant, namely the decisions adopted by the market surveillance authorities of Member States other than the Kingdom of Sweden in order to review the conformity of the machines, the principle of the state of the art and the technical file relating to the machines at issue.
49      In that regard, it should be noted that, even in the case of complex assessments carried out by the Commission, the EU judicature must not only establish whether the evidence relied on was factually accurate, reliable and consistent, but also ascertain whether that evidence contained all the information
which had to be taken into account in order to assess such a complex situation and whether it was capable of supporting the conclusions drawn from it by the Commission (see, to that effect, judgments of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 104; of 29 July 2019, Prenatal, C‑589/17, EU:C:2019:631, paragraph 46; and of 10 December 2020, Comune di Milano v Commission, C‑160/19 P, EU:C:2020:1012, paragraph 115).
50      In the present case, however, it is necessary, first, to reject Brunswick’s argument that the General Court was wrong, when examining the legality of the decision at issue, in not verifying the relevance of the findings made by the competent national market surveillance authorities in Denmark, Germany, Finland and the United Kingdom.
51      It must be stated, first of all, that the General Court was right to state, in essence, in paragraph 42 of the judgment under appeal, that Directive 2006/42 establishes a system of surveillance in which it is, first, for the competent national authorities to determine whether machinery is liable to compromise the health and safety of persons and, if so, to adopt safeguard measures in accordance with the procedure established by Article 11 of that directive and then, subsequently, for the Commission to verify whether those measures are justified in law and in fact.
52      In that context, in paragraphs 50 and 51 of the judgment under appeal, the General Court then highlighted the Member States’ obligations as regards the uniform application of Directive 2006/42. It stated, in particular, that it is apparent from Article 14(7) and Article 19 of Directive 2006/42, read in the light of recitals 9 and 10 of that directive, that Member States are obliged, in the course of 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. The General Court also referred to Article 18(5) of Regulation No 765/2008, under which 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.
53      However, it should be noted that those provisions cannot be interpreted as requiring Member States to align themselves with the decisions of the competent market surveillance authorities in other Member States.
54      More specifically, Article 11(6) of that directive provides only, in general terms, that the Commission, in the context of the application of the safeguard mechanism initiated by a Member State on the basis of that provision, is to ensure that the other Member States are kept informed of the progress and outcome of that procedure. However, there is no provision at all that the initiation of that procedure by the competent authority of a Member State with regard to machinery liable to compromise the health or safety of persons is subject to the prior consideration of the point of view of the competent national authorities of other Member States.
55      On the contrary, the Member States not only have the power to use the safeguard clause provided for in Article 11 of Directive 2006/42, but are also obliged to do so where they find that the machinery concerned is liable to compromise the health or safety of persons. Consequently, the decision by which the Commission confirms that a national measure adopted under Article 11 of Directive 2006/42 is justified, in so far as it finds that the machinery concerned does not comply with the relevant EHSRs, which, in this case, is not disputed by Brunswick in the present appeal proceedings, cannot be called into question on the ground that the competent authorities of other Member States did not reach the same conclusion.
56      It follows from all of the foregoing that the General Court did not err in law when it held, in paragraphs 52 and 55 of the judgment under appeal, that the uniform application of Directive 2006/42 does not necessarily mean that identical technical solutions are required in all the Member States and that that directive 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.
57      Secondly, Brunswick’s argument that the General Court wrongly excluded the principle of the state of the art from its examination and, therefore, did not verify the substantive accuracy of the assessment on which the Commission relied for the purposes of adopting the decision
at issue, cannot succeed either.
58      It is apparent from paragraph 115 of the judgment under appeal that the General Court responded to Brunswick’s argument regarding the absence of a reference to the principle of the state of the art in the decision at issue and in the SWEA decision. Furthermore, since Directive 2006/42 does not impose any obligation to present, in the Commission’s decision, adopted in the context of the safeguard clause procedure, an analysis as to the application of the principle of the state of the art, the General Court did not err in law in holding that the fact that such an analysis was not provided in the decision at issue did not in itself imply an infringement of that principle.
59      In support of its appeal, Brunswick has not put forward any argument to the effect that that assessment is manifestly incorrect or, a fortiori, evidence capable of leading to such a conclusion.
60      Furthermore, paragraphs 116 and 117 of the judgment under appeal, which are not disputed by Brunswick in its appeal, demonstrate that it was the appellant itself that had chosen to refer to a specific harmonised standard for the purposes of the EC declaration of conformity of the products at issue, with the result that it was for the appellant to apply that specific standard correctly and in its entirety. In the present case, since that standard was not complied with, in particular as regards the width of the walkways of the machines at issue, the General Court was fully entitled to find that it was for the appellant to present another technical solution that would ensure the same level of safety and to demonstrate that the products at issue complied with the respective EHSRs, which it did not do.
61      Similarly, in paragraphs 118 to 123 of the judgment under appeal, the General Court duly examined 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, which is also not disputed by Brunswick in its appeal.
62      Thirdly, Brunswick cannot validly claim that the General Court excluded from the review of the legality of the decision at issue the details, in respect of the technical file, that
constituted information that was essential for the assessment of the conformity of the machines at issue. In that regard, it must be held that the appellant’s line of argument is based on the premiss that the General Court erred in law in finding that it was not for the Commission to ask Brunswick for the technical file.
63      First, the General Court correctly stated, in paragraph 127 of the judgment under appeal, that the fact that the appellant 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 neither the reason why the safeguard measures were adopted, nor why the Commission had considered those measures to be justified.
64      Secondly, the General Court was fully entitled to hold, in paragraph 129 of the judgment under appeal, that the fact that the Commission had not requested the appellant to produce the technical file was not capable of reversing the burden of proof which, as the General Court pointed out in paragraph 109 of that judgment, was borne by the appellant. In the latter paragraph, which, moreover, is not disputed by Brunswick in the present appeal, the General Court was also fully entitled to state that, while remaining free to choose the methods for assessing the conformity of its products with the EHSRs, the relevant manufacturer was 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.
65      Therefore, in so far as the appellant bore the burden of proving that the machines at issue complied with the provisions of that directive, the appellant’s argument that it was for the Commission, when examining the safeguard measures, to request the technical file, must be rejected as being incorrect in law, in so far as it is based on a reversal of the burden of proof.
66      In those circumstances, even if it were the case, as Brunswick submits in the context of its first ground of appeal, that the General Court incorrectly held, in paragraph 128 of the judgment under appeal, that, even if the references of the harmonised standards had not been given by the appellant, the Kingdom of Sweden had been able to list the EHSRs to which those references to the harmonised standard might have related, that argument must be held to be ineffective.
67      In accordance with settled case-law, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of the judgment, any defects that could vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a ground of appeal in which such defects are relied on is ineffective and must be dismissed (judgment of 22 December 2022, EIB v KL, C-68/22 P, EU:C:2022:1029, paragraph 62 and the case-law cited).
68      In view of the foregoing considerations, the first ground of appeal must be rejected as unfounded.
The second ground of appeal
Arguments of the parties
69      By its second ground of appeal, directed against paragraphs 115, 127 and 129 of the judgment under appeal, Brunswick complains that the General Court infringed the second paragraph of Article 296 TFEU, Article 41(1) and (2)(c) of the Charter, and its obligation to state reasons, in that it did not provide a sufficiently detailed and substantiated statement of reasons in support of its decision.
70      Brunswick submits that the General Court relied only on the evidence on which the Commission had relied in order to adopt the decision at issue, without explaining the reasons which led the Commission not to take into account the other factors which Brunswick considers to be relevant. In particular, the General Court did not state any reason to justify its finding that none of the relevant factors highlighted by the appellant, namely the alleged decisions of several competent market surveillance authorities in other Member States regarding the conformity of the products at issue, the principle of the state of the art and the technical file regarding the machines at issue, was capable of altering the analysis carried out by the SWEA and by the Commission as regards the non-conformity of the products at issue with Directive 2006/42 and, therefore, of leading to the annulment of the decision at issue.
71      The Commission considers that the second ground of appeal is at least partially inadmissible as regards the complaints alleging a failure to state reasons concerning, first, the decisions of the competent market surveillance authorities in other Member States and, second, the reason why the principle of the state of the art does not alter the analysis of non-conformity or invalidate the Commission’s decision. The Commission observes, in that regard, that none of the paragraphs of the judgment under appeal to which the appellant refers in its second ground of appeal concerns those aspects.
72      The Commission adds that, in any event, the arguments relied on in support of the second ground of appeal must be rejected as unfounded.
Findings of the Court
73      As regards the admissibility of the second ground of appeal, it should be noted that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the paragraphs of the judgment under appeal which may be vitiated by an error of law does not satisfy the requirements referred to in paragraph 45 of the present judgment and must be dismissed as inadmissible (judgment of 29 September 2022, ABLV Bank v SRB, C‑202/21 P, EU:C:2022:734, paragraph 35 and the case-law cited).
74      In the present case, it is true that the complaints put forward by the appellant in support of the second ground of appeal, referred to in the plea of inadmissibility raised by the Commission, do not expressly refer to the paragraphs of the judgment under appeal to which they relate.
75      Nevertheless, the information provided in the appeal makes it easy to identify the paragraphs of the judgment under appeal to which each of those complaints relates; indeed, the arguments put forward in defence by the Commission confirm that the latter was able to identify those paragraphs (see, by analogy, judgment of 29 September 2022, ABLV Bank v SRB, C‑202/21 P, EU:C:2022:734, paragraph 38).
76      It follows that the second ground of appeal relied on by the appellant in support of its appeal is admissible in its entirety.
77      As regards the merits of that ground of appeal, it should be noted that, according to settled case-law, the statement of the reasons on which the judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (judgment of 29 April 2021, Achemos Grupė and Achema v Commission, C‑847/19 P, not published, EU:C:2021:343, paragraph 60 and the case-law cited).
78      However, the obligation to state reasons does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case and the reasoning may therefore be implicit, on condition that it enables the persons concerned to understand the grounds of the General Court’s judgment and provides the Court of Justice with sufficient information to exercise its power of review (see, inter alia, judgments of 26 May 2016, Rose Vision v Commission, C‑224/15 P, EU:C:2016:358, paragraph 25; of 10 March 2022, Commission v Freistaat Bayern and Others, C‑167/19 P and C‑171/19 P, EU:C:2022:176, paragraph 78; and of 16 June 2022, Sony Optiarc and Sony Optiarc America v Commission, C‑698/19 P, EU:C:2022:480, paragraph 148).
79      It must also be stated that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgment of 10 March 2022, Commission v Freistaat Bayern and Others, C‑167/19 P and C‑171/19 P, EU:C:2022:176, paragraph 77 and the case-law cited).
80      In the present case, it must be noted that, first, as is apparent from paragraph 115 of the judgment under appeal, as regards the complaint alleging infringement of the procedural rules laid down in Annex I to Directive 2006/42, the General Court examined the appellant’s arguments concerning the absence of any reference to the principle of the state of the art in the decision at issue and in the SWEA decision. To that end, after finding that Brunswick had not specified in any way the procedural rules which were allegedly infringed, the General Court held that Directive 2006/42 does not in fact lay down any procedural rule requiring the competent national authority or the Commission to provide, in support of a decision adopted under the safeguard clause, an analysis of the application of the principle of the state of the art. The General Court also held that the fact that an analysis of the application of that principle was not carried out in the decision at issue or in the SWEA decision did not in itself imply an infringement of that principle.
81      Thus, the reasoning set out in paragraph 115 of the judgment under appeal, although succinct, is sufficient to enable Brunswick to know why the General Court did not uphold its arguments based on the failure to refer to the principle of the state of the art in the decision at issue and to enable the Court of Justice to exercise its power of review in that regard.
82      As regards, secondly, the arguments concerning the grounds on which the General Court held that the fact that the Commission had not requested the appellant to provide it with the technical file in respect of the machines at issue was not such as to result in the annulment of the
decision at issue, it should be noted that, as follows from paragraphs 63 and 64 of the present judgment, the General Court relied, in that respect, on two considerations.
83      In the first place, the General Court found, in paragraph 127 of the judgment under appeal, that the reasons relied on by the Kingdom of Sweden to justify the safeguard measures were the fact that the machines at issue did not comply with certain EHSRs set out in Annex I to Directive 2006/42 and the incorrect application of certain harmonised standards. It therefore held that the fact that Brunswick had not established, in the technical file, a link between the references of the harmonised standards and the respective EHSRs was not the reason why the SWEA had adopted the safeguard measures or why the Commission had considered those measures to be justified. Thus, the General Court relied on that finding in order to reach the conclusion that the lack of precision in the decision at issue raised by the appellant was not such as to call into question the analysis carried out by the SWEA or by the Commission or, therefore, capable of resulting in the annulment of that decision.
84      In the second place, in paragraph 129 of the judgment under appeal, the General Court stated that, in any event, the fact that the Commission had not requested the technical file was not capable, first, of altering the analysis and conclusions as to the non-compliance of the machines at issue with the provisions of Directive 2006/42.
85      The General Court also stated, referring to paragraph 109 of the judgment under appeal, that that fact was not such as to reverse the burden of proof borne by the appellant. In paragraph 109, the General Court stated that the manufacturer was obliged not only to ensure the conformity of its products with the ESHRs, but also to demonstrate it in the technical file, as provided for in Annex VII to Directive 2006/42. It is therefore apparent that the General Court implicitly but necessarily considered that, in the present case, since it was Brunswick that bore the burden of proof as to the conformity of the machines at issue, it was for Brunswick to provide a technical file.
86      Such a statement of reasons satisfies the requirements set out in paragraphs 77 and 78 of the present judgment, since, in particular, it enables Brunswick to know the reasons which led the General Court to consider that the arguments put forward by the appellant in relation to the technical file were ineffective, thus enabling the Court of Justice to exercise its power of review.
87      Thirdly and lastly, contrary to Brunswick’s contention, the General Court duly examined the argument alleging a failure to have regard to the alleged decisions of the competent market surveillance authorities in other Member States, with the result that the judgment under appeal is not vitiated by an error of reasoning in that regard.
88      As follows from paragraphs 50, 51 and 55 of the present judgment, the General Court explained why those alleged decisions cannot call into question the assessments made by the Commission for the purposes of the adoption of the decision at issue. More specifically, the General Court pointed out, in essence, that the uniform application of Directive 2006/42 does not preclude a Member State from taking the safeguard measures provided for in Article 11 of that directive, even though other Member States have not done so.
89      In view of all of the foregoing considerations, the second ground of appeal must be rejected as unfounded and, therefore, the appeal must be dismissed in its entirety.
Costs
90      In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court of Justice is to make a decision as to the costs. Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
91      In the present case, since the Commission has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to pay the costs of the present appeal.
On those grounds, the Court (Tenth Chamber) hereby:
1.      Dismisses the appeal;
2.      Orders Brunswick Bowling Products LLC to pay the costs.
Ilešič
Jarukaitis
Csehi
Delivered in open court in Luxembourg on 27 April 2023.
A. Calot Escobar
M. Ilešič
Registrar
Acting President of the Chamber
*      Language of the case: English.