EN Official Journal of the European Union C 307/3

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 POWER GT MD-2007-138

(Text with EEA relevance)

(2008/C 307/02)

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 POWER GT of the type PG-AG 0110. The machinery was manufactured by Zheijang Wuyi Gongli Electric Machine Co., Ltd, Feng Huang Shan Industrial Zone, Dong Gan, Wuyi County, Zheijang 321201, People's Republic of China, and distributed by REMOND Hungary Kft., H-1211 Budapest, Déli út 15/A.

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).

1.5.1. Electricity supply and 1.5.6 — Risk of fire

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

1.7.3. Marking

The symbols attached to the product were not sufficiently durable.

3. The Commission's opinion

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

To date, no response has been received.

Nevertheless the file transmitted to the European Commission contained a letter from REMOND Hungary Kft. to the Hungarian authorities dated 7 March 2007, stating that they were not able to present any conformity certificate for the angle grinder in question as they had never arrived from the Chinese manufacturer. Consequently, they had already instructed their clients to withdraw the angle grinder from the market and could not explain why some were still available at the time the Hungarian authorities took the measure.

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.