EN Official Journal of the European Union C 309/3

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 impact drill bearing the trademark REDLINE MD-2007-140

(Text with EEA relevance)

(2008/C 309/02)

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 impact drill bearing the trademark REDLINE, of the type RL/ID0955-910. The machinery was manufactured by Yongkang Zhengda Industrial Co. Ltd, Gushan Town, Yongkang, Zhejiang, 321307, 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 04SHW2481-01 dated 15 December 2004 issued by Intertek Deutschland GmbH for an impact drill type Z1JE-KZ2-16B granting the ‘GS’ mark for the impact drill,

— Certificate No JSH0411181 dated 1 December 2004 and Certificate No 432960 dated 15 December 2004 issued by Intertek ETL SEMKO, Shanghai, for the same type of impact drill Z1JE-KZ2-16B,

— a declaration by Yongkang Zhengda Industrial Co. dated 18 June 2006 stating that the impact drill type Z1JE-KZ2-16B is equivalent to item RL/ID0955-910 subject to the Hungarian measure,

— an EC Declaration of Conformity drawn up by Baumann Hungary Kft. dated 11 August 2006 referring to Certificate No JSH0411181.

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 impact drill 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 60745-1:2003 — Hand-held motor-operated electric tools — Safety — Part 1: General requirements, and EN 60745-2-1:2003 — Hand-held motor-operated electric tools — Safety — Part 2-1: Particular requirements for drills and impact drills).

1.5.1. Electricity supply and 1.5.6 — Risk of fire

The product poses a risk of fire due to the unfixed internal wiring, which might cause a short-circuit.

1.5.6. Risk of fire

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

3. The Commission's opinion

On 15 November 2007, the Commission wrote to Baumann Hungary Kft. who signed the EC Declaration of Conformity, 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 Intertek Deutschland GmbH who had issued conformity certificates for the impact drill type Z1JE-KZ2-16B which was claimed to be equivalent to the impact drill type RL/ID0955-910 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.