EN Official Journal of the European Union C 306/3

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 angle grinder bearing the trademark MANS FRIEND MD-2007-139

(Text with EEA relevance)

(2008/C 306/02)

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 angle grinder bearing the trademark MANS FRIEND, of the type MF 125-110. The machinery was manufactured by Jinhua Max-power Tools Co., Ltd, Western Binhong Road 558, section 2, Jinhua Industrial Area, Zhejing, 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 05SHW0991-01 dated 10 May 2005 for an angle grinder type S1M-MP6-125 issued by Intertek Deutschland GmbH granting the ‘GS’ mark for the angle grinder,

— Certificate No JSH0411771 dated 8 May 2005 and Certificate No 531226 dated 10 May 2005 for the same type of angle grinder S1M-MP6-125 issued by Intertek ETL SEMKO, Shanghai,

— a declaration by Max-power Tools Co. dated 12 July 2006, stating that the angle grinder type S1M-MP6-125 is equivalent to item MF 125-110 that is subject to the Hungarian measure,

— an EC Declaration of Conformity drawn up by Baumann Hungary Kft. dated 18 July 2006 referring to Certificate No JSH0411771.

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 standard 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).

1.5.1. Electricity supply

The internal wiring was unfixed, thus posing the risk of electric shock.

1.5.6. Risk of fire

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

1.7.4. Instructions

The majority of the general safety instructions as well as the specific instructions for angle grinder were missing from the instructions for use.

1.7.3. Marking

The manufacturer and the year of manufacture were not indicated on the angle grinder.

3. The Commission's opinion

On 15 November 2007, the Commission wrote to Jinhua Max-power Tools Co. and Baumann Hungary Kft., who signed the EC Declaration of Conformity, inviting them to communicate their 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 that had issued conformity certificates for the angle grinder type S1M-MP6-125 which was claimed to be equivalent to the angle grinder type MF 125-110 subject to the Hungarian measure.

To date, no response has been received from Baumann Hungary Kft., from Intertek ETL SEMKO or from Intertek Deutschland GmbH.

In a reply dated 19 December 2007, Jinhua Max-power Tools Co. stated that they had never manufactured or supplied an angle grinder under the trademark ‘Mans Friend’. They further stated that the Chinese authorities were investigating the file but had not established who had misused their certificates and 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.