EN Official Journal of the European Union C 306/1

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 electric planer bearing the trademark STRAUS AUSTRIA MD-2007-141

(Text with EEA relevance)

(2008/C 306/01)

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 4 September 2007, the Hungarian authorities notified to the European Commission a prohibition measure concerning the placing on the market of a hand-held portable electric planer bearing the trademark STRAUS AUSTRIA, of the type ST/PL 821-902. The manufacturer of the machinery is Jiangsu Jinding Electric Tools Group Co. Ltd, Huangli Town, Changzhou, Jiangsu, 213151, China and the machinery was distributed by Superline Hungary Kft., H-1162 Budapest, Csömöri út 269 and by Dimension Europe Kft., H-1173 Budapest, Újlak u. 21. 5. em. 50.

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

— Certificate No AM50046679 0001 dated 29 July 2004 and Certificate No S 50045577 dated 29 July 2004 issued by TÜV Rheinland Product Safety GmbH, Am Grauen Stein, D-51105 Cologne, for an electric planer type DB-82X2A granting the ‘GS’ mark for the electric planer,

— a declaration by Jiangsu Jinging Electric Tools, China, dated 30 August 2006 stating that the electric planer type DB-82X2A is equivalent to the electric planer type ST/PL 821-902 subject to the Hungarian measure,

— an EC Declaration of Conformity drawn up by Superline Hungary Kft. dated 5 July 2006 referring to Certificate No S 50045677.

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 electric planer 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 standard EN 60745-1:2003 ‘Hand-held motor-operated electric tools — Safety — Part 1: General requirements’ and EN 60745-2-14 ‘Hand-held motor-operated electric tools — Safety — Part 2-14: Particular requirements for planers’, which are referred to in the manufacturer's EC Declaration of Conformity).

1.5.1. Electricity supply

Insufficient electric strength of reinforced insulation: flashover occurred between the accessible metal parts and live parts at a voltage level below the prescribed threshold, thus posing the risk of electric shock.

1.5.6. Fire

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

1.7.3. Marking

The identification mark, the name and address of the manufacturer and, the year of manufacture were not indicated on the planer.

1.7.4. Instructions

The instructions did not contain the name and address of the manufacturer nor several instructions required for the safe operation of the machinery, such as electricity safety rules, etc.

3. The commission's opinion

On 15 November 2007, the Commission wrote to Jiangsu Jinding Electric Tools Group Co., Superline Hungary Kft. who signed the EC Declaration of Conformity, and Dimension Europe Kft., inviting them to communicate their observations regarding the measure taken by the Hungarian authorities.

On 15 November 2007, the Commission also wrote to TÜV Rheinland, Cologne, that had issued a conformity certificate No AM 50046679 0001 for an electric planer type DB-82X2A which was claimed to be equivalent to electric planer type ST/PL 821-902 subject to the Hungarian measure.

On 3 December 2007, TÜV Rheinland replied confirming that they had issued a conformity certificate for the electric planer type DB-82X2A and stating that the certificate was only valid until March 2007. They could not confirm that the electric planer type ST/PL 821-902 was equivalent to the electric planer type DB-82X2A and stated they had not tested or certified the type ST/PL 821-902.

On 6 December 2007, Jiangsu Jinding Electric Tools Group Co. replied stating that their electric planer and the planer subject to the Hungarian measure were not identical and the that the planer subject to the Hungarian measure was not manufactured by them. They stated that they were considering legal action against those misusing their name.

In light of the documentation available and the comments of the parties concerned, 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.