EN Official Journal of the European Union C 309/1

COMMISSION OPINION

of 27 November 2008

in application of Article 7 of Directive 98/37/EC of the European Parliament and of the Council as regards a prohibition measure adopted by the Hungarian authorities in respect of an angle grinder bearing the trademark REDLINE MD-2007-137

(Text with EEA relevance)

(2008/C 309/01)

1. The notification by the Hungarian authorities

Article 2(1) of Directive 98/37/EC on the approximation of the laws of the Member States relating to machinery states that Member States shall take all appropriate measures to ensure that machinery covered by the Directive may be placed on the market and put into service only if it does not endanger the health and safety of persons and, where appropriate, domestic animals or property, when properly installed and maintained and used for its intended purpose.

Article 7(1) of the Directive provides that where a Member State ascertains that machinery bearing the EC marking used in accordance with its intended purpose is liable to endanger the safety of persons, and, where appropriate, domestic animals or property, it shall take all appropriate measures to withdraw such machinery from the market, to prohibit the placing on the market, putting into service or use thereof, or to restrict free movement thereof. The Member State shall immediately inform the Commission of any such measure, indicating the reason for its decision.

On 23 July 2007, the Hungarian authorities notified to the European Commission a prohibition measure concerning the placing on the market of a hand-held portable electric angle grinder bearing the trademark REDLINE of the type RL/AG0912-900. The machine was manufactured by Zhejiang Jinhua Max-power Tools Co., Ltd, Western Binhong Road, Jinhua Industrial Area, Zhejiang, China, and distributed by Baumann Hungary Kft., H-1162 Budapest, János utca 118.

The file transmitted to the European Commission included the following documents:

— Certificate No JSH0408078, dated 12 August 2004, and Certificate No 431934, dated 1 July 2005, issued to Zhejiang Jinhua Max-power Tools Co., Ltd, attesting the conformity with the Machinery and LVD Directives of an angle grinder type S1M-MP2-125, issued by Intertek ETL SEMKO, Building No 86, 1198 Qinzhou Road, Shanghai 200233, China,

— Certificate No 02SHS1067-04, dated 22 November 2005, issued by Intertek Deutschland GmbH, Nikolaus-Otto Strasse 13, D-70771 Leinfelden-Echterdingen, for the same type of angle grinder S1M-MP2-125, granting the ‘GS’ mark,

— a declaration by Zhejiang Jinhua Max-power Tools Co., Ltd, dated 12 July 2006; stating that the angle grinder type S1M-MP2-125 subject to certificate 02SHS1067-04 is equivalent to the angle grinder type RL/AG0912-900,

— an EC Declaration of Conformity drawn up by Baumann Hungary Kft., dated 11 December 2006, also stating that the angle grinder type S1M-MP2-125 is equivalent to the angle grinder type RL/AG0912-900 subject to the Hungarian measure.

Pursuant to Article 7(2) of the Directive, the Commission is required, after consulting the parties concerned, to declare whether it finds such a measure justified or not. If the measure is found justified, the Commission shall inform the Member States so that they can take all appropriate measures with respect to the machinery concerned, in accordance with their obligations under Article 2(1).

2. The reasons given by the Hungarian authorities

The measure taken by the Hungarian authorities was founded on the failure of the angle grinder to comply with the following essential health and safety requirements of Annex I to Directive 98/37/EC (with reference to the specifications of the harmonised European standards EN 50144-1:1998 Safety of hand-held electric motor operated tools — Part 1: General requirements and EN 50144-2-3:2002 — Safety of hand-held electric motor operated tools — Part 2-3: Particular requirements for grinders, disk type sanders and polishers, which are referred to in the manufacturer's EC Declaration of Conformity).

1.2.4. Stopping device

When operating, the switch got stuck before reaching the locked position, therefore the locking mechanism did not release by slight pressure.

1.5.1. Electricity supply

During the mechanical strength test, the plastic insert became detached from the angle grinder and thus live parts became accessible.

1.5.6. Fire

During the thermal test, the machinery caught fire, emitted smoke and flame then stopped.

1.7.3. Marking

The name and address of the manufacturer were not indicated nor was the year of manufacture. The warnings or the relevant symbols were also missing.

1.7.4. Instructions

The instructions for use did not contain several instructions required for the safe operation of the machinery such as electricity safety rules, the parameters related to noise emission and vibration etc.

The instruction for use provided in English differed from those provided in Hungarian.

3. The Commission's opinion

On 15 November 2007, the Commission wrote to Baumann Hungary Kft. inviting him to communicate his observations regarding the measure taken by the Hungarian authorities.

On 15 November 2007, the Commission also wrote to Intertek ETL SEMKO, Shanghai, and to Intertek Deutschland GmbH that had issued conformity certificates for an angle grinder type S1M-MP2-125 that was claimed to be equivalent to the angle grinder type RL/AG0912-900 subject to the Hungarian measure.

To date, no response has been received.

In light of the documentation available, the Commission considers that the Hungarian authorities have demonstrated that the machinery subject to the restrictive measure fails to comply with the essential health and safety requirements referred to above. These non-conformities give rise to serious risks for persons using the machinery in question.

Consequently, having followed the required procedure, the Commission is of the opinion that the measure taken by the Hungarian authorities is justified.