OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 17 November 2005 1( )

Case C-470/03

A.G.M.-COS.MET Srl

v

Suomen valtio

and

Tarmo Lehtinen

(Reference for a preliminary ruling from the Tampereen käräjäoikeus (Finland))

(Directive 98/37/EC on the approximation of the laws of the Member States relating to machinery – Machinery bearing the CE marking but not complying with a harmonised standard – Article 28 EC – Measures having equivalent effect – Public warnings by a State official against vehicle lifts imported from another Member State – Whether acts of an official attributable to the State – Right of officials to freedom of expression – Proportionality – State liability – Liability of State officials)

I – Introduction

1. The Tampereen käräjäoikeus (Tampere District Court, Finland) has referred a factually complex case to the Court, which in the context of interpreting a directive relating to operational safety of machinery raises questions concerning principally the liability of a State for acts of its officials, restrictions on free movement of goods constituted by expressions of opinion, and finally State liability.

2. These questions arise in the context of a dispute between the Italian undertaking A.G.M.-COS.MET Srl (‘AGM’) which manufactures vehicle lifts and the Finnish State and a Mr Lehtinen, one of its officials. AGM seeks damages from the Finnish State and Mr Lehtinen for loss of turnover that AGM alleges was caused by public statements by Mr Lehtinen describing AGM’s vehicle lifts as non-compliant and dangerous. The Finnish Government replies that Mr Lehtinen acted deliberately contrary to his ministry’s official position and that the ministry made this clear to the public. Mr Lehtinen argues inter alia that his statements were covered by his right to freedom of expression.

3. Against this background the Tampereen käräjäoikeus has referred a series of detailed questions to the Court, which may be divided into three groups. First, the national court asks the Court to interpret the directive on operational safety of machinery in order to determine whether the vehicle lifts in question complied with its provisions. Second, it asks whether Mr Lehtinen’s public statements may be regarded as restrictions on free movement of goods and as a breach of the duty of cooperation in good faith with the Community attributable to the Member State and, if so, to what extent they may be justified by freedom of expression and the aim of protecting health. Third, if Articles 28 EC and 30 EC or Article 10 EC has been infringed, the Tampereen käräjäoikeus asks whether the requirements for a claim for State liability under Community law are satisfied, whether Community law also requires liability to be imposed on the official whose acts are involved, and if so to what extent the conditions of such claims require Finnish law to be interpreted in conformity with Community law.

II – Legal framework

4. The legal framework for the case consists of Articles 10 EC, 28 EC and 30 EC, as well as Directive 98/37/EC and harmonised standard EN 1493: 1998.

1. Directive 98/37

5. For the purposes of removing obstacles to trade created by national health and safety provisions and of preventing risks posed by machinery, the Community enacted Directive 98/37/EC (‘the Directive’). It lays down the imperative and essential health and safety requirements for machinery and safety components, and lays down a procedure for assessing and declaring conformity with these requirements. Conformity is indicated by the CE marking. ( )

6. Article 2(1) of the Directive provides that the Member States

‘… shall take all appropriate measures to ensure that machinery … covered by this Directive may be placed on the market and put into service only if [it does] not endanger the health or safety of persons … when … used for [its] intended purpose.’

7. Article 2(2) of the Directive provides that the Directive shall not affect

‘… Member States’ entitlement to lay down, in due observance of the Treaty, such requirements as they may deem necessary to ensure that persons and in particular workers are protected when using the machinery … in question, provided that this does not mean that the machinery … [is] modified in a way not specified in the Directive.’

8. Article 3 of the Directive provides:

‘Machinery … covered by this Directive shall satisfy the essential health and safety requirements set out in Annex I.’

9. Article 4(1) of the Directive provides that the Member States

‘… shall not prohibit, restrict or impede the placing on the market and putting into service in their territory of machinery … which compl[ies] with this Directive.’

10. Article 5(1) provides that the Member States

‘… shall regard … as conforming to all the provisions of this Directive, including the procedures for checking the conformity provided for in Chapter II … machinery bearing the CE marking and accompanied by the EC declaration of conformity referred to in Annex II, point A …’.

11. However, Article 7(1) of the Directive provides:

‘Where a Member State ascertains that … machinery bearing the CE marking … used in accordance with [its] intended purpose [is] liable to endanger the safety of persons … 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.

[A Member State] shall immediately inform the Commission of any such measure, indicating the reason for its decision and, in particular, whether non-conformity is due to:

(a) failure to satisfy the essential requirements referred to in Article 3;

(b) incorrect application of the standards referred to in Article 5(2);

(c) shortcomings in the standards themselves referred to in Article 5(2).’

12. Articles 8 and 9 of the Directive lay down detailed requirements for the procedure for assessing whether machinery complies with the Directive’s safety requirements, and Article 10 lays down requirements for the conformity marking consisting of the two letters ‘CE’.

13. Preliminary Observation 1 of Annex I to the Directive states that ‘[t]he obligations laid down by the essential health and safety requirements apply only when the corresponding hazard exists for the machinery in question when it is used under the conditions foreseen by the manufacturer.’ However, ‘requirements 1.1.2 … and 1.7.4 apply to all machinery covered by this Directive.’

14. Requirement 1.1.2 (‘Principles of safety integration’) provides, in extract, as follows:

‘(a) Machinery must be so constructed that it is fitted for its function, and can be adjusted and maintained without putting persons at risk when these operations are carried out under the conditions foreseen by the manufacturer.

The aim of measures taken must be to eliminate any risk of accident …, even where risks of accident arise from foreseeable abnormal situations.

(b) In selecting the most appropriate methods, the manufacturer must apply the following principles, in the order given:

– eliminate or reduce risks as far as possible (inherently safe machinery design and construction),

– take the necessary protection measures in relation to risks that cannot be eliminated,

– inform users of the residual risks due to any shortcomings of the protection measures adopted, …

(c) When designing and constructing machinery, and when drafting the instructions, the manufacturer must envisage not only the normal use of the machinery but also uses which could reasonably be expected.

The machinery must be designed to prevent abnormal use if such use would engender a risk. In other cases the instructions must draw the user’s attention to ways – which experience has shown might occur – in which the machinery should not be used.

…’

15. As regards lifting operations undertaken under the conditions provided for by the manufacturer, requirement 4.1.2.3 (‘Mechanical strength’) of Annex I provides:

‘Machinery … must be capable of withstanding the stresses to which [it is] subjected … in … use, under the … operating conditions provided for by the manufacturer, and in all relevant configurations …

Machinery must be designed and constructed to undergo, without failure, the dynamic tests carried out using the maximum working load …

The dynamic tests must be performed … under normal conditions of use. As a general rule, the tests will be performed at the nominal speeds laid down by the manufacturer. Should the control circuit of the machinery allow for a number of simultaneous movements (for example, rotation and displacement of the load), the tests must be carried out under the least favourable conditions …’

16. Finally, it should be mentioned that Section A (‘Machinery’) of Annex IV to the Directive includes the entry ‘15. Vehicles servicing lifts’, indicating that such machines fall within the scope of the Directive.

2. Harmonised standard EN 1493: 1998

17. Recital 17 in the preamble to the Directive states:

‘… this Directive defines only the essential health and safety requirements of general application, supplemented by a number of more specific requirements for certain categories of machinery; … in order to help manufacturers to prove conformity to these essential requirements and in order to allow inspection for conformity to the essential requirements, it is desirable to have standards harmonised at European level for the prevention of risks arising out of the design and construction of machinery; … these standards harmonised at European level are drawn up by private-law bodies and must retain their non-binding status …’.

18. Recital 20 in the preamble to the Directive continues:

‘… as is currently the practice in Member States, manufacturers should retain the responsibility for certifying the conformity of their machinery to the relevant essential requirements; … conformity to harmonised standards creates a presumption of conformity to the relevant essential requirements …’.

19. Accordingly, Article 5(2) of the Directive provides:

‘… machinery … constructed in accordance with this standard shall be presumed to comply with the relevant essential requirements’.

20. The European Committee for Standardisation (CEN) drew up harmonised standard EN 1493: 1998 (‘standard EN 1493’) for vehicle lifts ( ) and the Commission referred to it in a communication. ( )

21. The English language version of the harmonised standard lays down the following requirements for the supporting structure for vehicle lifts, in point 5.6 (‘Structural design of the supporting structure’), 5.6.1 (‘General’):

‘The design of vehicle lifts in relation to materials, construction and equipment shall be such that a satisfactory level of safety is achieved under all operating conditions …’.

22. As regards the distribution of the load during the lifting operation, point 5.6.4.2 provides as follows in relation to chassis-supporting vehicle lifts for road vehicles:

‘For structural design purposes vehicle position on load carrying devices shall be considered in both directions …

The calculation shall be carried out in the most unfavourable configuration.’

III – Facts and main proceedings

AGM’s vehicle lifts

23. The claimant in the main proceedings is an Italian company which manufactures vehicle lifts and markets them in Europe under the brand ‘AGM’. AGM’s models include, among others, the G 28, G 32 and G 35, which have similar construction, and of which the Finnish importer has sold around 150 to vehicle companies in Finland since 1996.

24. This type of vehicle lift consists of two columns between which the vehicle to be lifted is driven. To each column is attached a short and a long lifting arm, and these are inserted under the chassis of the vehicle to be lifted. If the lifting arms are positioned in this way, a device attached to the columns allows them to be raised high enough for it to be possible for a person to work under the vehicle while standing up.

25. Loading instructions are provided for use of the lift, in which the maximum permitted weight of the vehicle to be lifted is determined. The precise maximum weight for a lifting operation depends on two factors, however. First, the further a lifting arm is extended, the lower the maximum permitted weight of the vehicle. Second, the maximum permitted weight for the long arms is lower than for the short arms. It follows that before a vehicle is lifted the distances between the lifting arms as well as the axle weights stated in the registration book have to be ascertained. Accordingly, the operating instructions state that the vehicle is to be driven between the columns in such a way that the higher axle weight is borne by the short arms, and the lower by the long arms.

26. In 1997 the G 35 model was certified as complying with the Directive and was granted the CE marking. The Italian company ICEPI Srl carried out the certification, it having been authorised by the Italian State and notified to the Commission as a certification body.

27. On 22 March 2000 in a Finnish undertaking a camper van fell from one of AGM’s G 32 vehicle lifts, because the locking system of the lifting arms had given way because of lateral movements, even though the vehicle’s weight was less than the maximum permitted load of the lift. No one was injured.

The Ministry’s market supervision procedure

28. In May 2000 the Ministry of Social Affairs and Health (‘the Ministry’) received a market supervision report from a health and safety district office. It stated that an inspection had found the locking system of a G 35 T/E model lift to be inadequate. The Ministry’s Health and Safety Division initiated a market supervision procedure, assigning the case to inter alia chief engineer Lehtinen as an expert.

29. In the course of the market supervision procedure a number of meetings were held with the importer. In addition, two stress tests were done on a model G 35 T/E lift, to review whether the locking system complied with standard EN 1493. Mr Lehtinen made a number of reports in Finnish and English, each of which was headed, ‘Ministry of Social Affairs and Health’, ‘Health and Safety Division’, and ‘Chief Engineer Tarmo Lehtinen’.

30. In his first report Mr Lehtinen stated inter alia that the first stress test had shown that the locking system did not comply with the requirements of standard EN 1493 and that the design ought to be improved. AGM then designed a new locking system. In his second report dated December 2000 Mr Lehtinen recognised that in a second test the new system had been shown to be adequate and complied with the standard. At the last meeting with the importer on 20 December 2000 it was accordingly agreed that systems of machines already in use would be upgraded by 15 March 2001. In the meantime users would be informed in writing as to the risks, the reduced loading and the replacement of the defective parts.

31. However, the central criticism of all of Mr Lehtinen’s reports was that the operating instructions for the lifts restricted the direction in which the vehicle had to be driven onto the lift. Standard EN 1493 did not allow such restrictions. The Italian certification body and AGM had misinterpreted the standard to the effect that the loading tests were to assume a load distribution according to the manufacturer’s instructions. However, standard EN 1493 provided that load calculations were to assume the most unfavourable configuration. Accordingly, the lift had to be dimensioned so that it could carry the maximum permitted load even under the most unfavourable configuration. Under those conditions, the lift could carry not the stated 3 500 kg but only 1 500 kg.

32. For those reasons, on 20 December 2000 the competent administrator sent to the head the Health and Safety Division who had decision-making powers a proposal for a decision that the placing on the market and the bringing into use of AGM lifts should be prohibited in Finland. However, the head of division sent the case back for further investigation, since in his opinion there was not sufficient evidence to support such a decision.

Mr Lehtinen’s and the Ministry’s public statements

33. On 9 January 2001 Mr Lehtinen took part in a meeting of the Technical Trade Association, in the course of his duties for and as a representative of the Ministry. The Association has about 200 member companies, including equipment suppliers to the motor vehicle industry. At that meeting Mr Lehtinen stated that AGM’s G 35 lifts were dangerous, breached the Directive, and had to be taken off the market. However, it may be taken from a letter by the Association to the Ministry dated 29 January 2001 that the Association was aware of the status of the market supervision procedure and of the Ministry’s differing view.

34. On 17 January 2001 at 20.30 the public television channel TV 1 broadcast an item concerning AGM’s lifts in the main Finnish news programme, which is broadcast throughout the country. The report included an interview with Mr Lehtinen which had been recorded in his office in the Ministry with the permission of the administrator, his immediate superior. In it he said that in his opinion an immediate danger might be linked to these machines, because people worked underneath the load. The presenter added that for the authorities it was the most difficult case so far and that according to the authorities the machine should also bear the weight if a car were driven onto it facing the wrong way. He continued that according to the Finnish health and safety authorities this machine, which had been approved in Italy, did not comply with EU standards. In a second broadcast, Mr Lehtinen added that the certification body chosen by the manufacturer had misinterpreted the provisions. There was no reference to the Ministry’s divergent view or to the status of the market supervision procedure.

35. On 8 February 2001 the head of the Health and Safety Division sent a fax to the Central Association of Industry and Employers. In it he stated that he did not want to impose a sales ban endangering the operation of the internal market, the reason being that there was no evidence but only assertions against the lifts. The Wholesale Association should be firmly warned about the bad consequences for the market if it went on listening to Mr Lehtinen.

36. On 12 February 2001 Mr Lehtinen gave his third report. In it he referred for the first time to models G 28 and G 32, which were not included in the conformity examination, and repeated his view as regards the restriction on driving direction. ( ) He pointed out in particular that because of the incorrect interpretation of the standard the lifting arms of the lift were too small and that ‘the serious mistakes in the design of the lifts may lead to an accident as a result of unintentional overloading of the lifts and the consequent failure of the strength and stability of the structures’. He sent this report to the Finnish Metalworkers’ Union.

37. On 16 February 2001 the head of division removed Mr Lehtinen from future involvement in the procedure, on the ground that he had in a pending case publicly expressed opinions differing from the Ministry’s official position and had thus acted contrary to the Ministry’s instructions and its communications policy. According to a report subsequently drawn up in the Health and Safety Division on 20 March 2001, the reason for Mr Lehtinen’s transfer was that he was suspected of having, contrary to good administrative practice and in a manner injurious to AGM’s interests, collaborated with AGM’s competitors.

38. On 17 February 2001 an article was published in the widely circulated regional newspaper Aamulehti with the headline ‘Expert warns against faulty car lifts’. The article referred expressly to AGM’s lifts and was based on interviews with Mr Lehtinen and the head of division at the Ministry. The article stated that according to Mr Lehtinen, chief engineer of the Ministry’s Health and Safety Division, ‘car lifts which are actually dangerous to life are on sale’. Mr Lehtinen was quoted as saying that three or four serious defects had become clearly apparent in these machines. However, it was also explained that the head of the Health and Safety Division regarded Mr Lehtinen’s statements as expressing his personal views. It was said that he had stated that the machine had been discussed in the Ministry and that it had been established that it met all the requirements of the Directive. There were no defects in the machine, no evidence had been presented.

39. On 19 February 2001 Mr Lehtinen sent the English version of his report of the same date to the Swedish health and safety authorities, without the permission of his superior. Those authorities regarded his memorandum as expressing the Ministry’s view, and this led to a request to the Italian authorities for information. In addition, Mr Lehtinen distributed his report to European experts.

40. On 22 February 2001 the Metalworkers’ Union sent a notice to its branches in the car and machinery repair sector and to the persons responsible for health and safety in the undertakings. In the notice the Union stated that AGM’s vehicle lifts models G 28, G 32 and G 35 had been indisputably shown to be dangerous and that the addressees should give their attention to the matter immediately. The Union annexed to the notice Mr Lehtinen’s report dated 12 February 2001, which Mr Lehtinen had sent to the Union. ( )

41. On 13 June 2001 an article was published in the widely circulated regional newspaper Etelä-Saimaa with the headline ‘Metalworkers’ Union demands prohibition of use of dangerous car lifts’ and the subheading ‘150 fitters in danger every day’. It was stated that serious defects had been found in the safety in use of AGM car lifts by the Ministry’s Health and Safety Division. The chief engineer, a specialist in this type of machinery, had already proposed restrictions on use for the Italian AGM lifts and a ban on the sale of new machines. However, it was also mentioned that the head of the Health and Safety Division took a different opinion, namely that there was not enough evidence and that the matter was still at the investigative stage.

The Ministry’s decisions and measures

42. On 14 June 2001 the Ministry’s Health and Safety Division took a decision in the case. It considered inter alia that no factors had come to light on the basis of which the Ministry should adopt market supervision measures against the manufacturer or importer of the lifts, because the manufacturer had corrected, as regards new equipment, and the importer was endeavouring to correct, as regards equipment in use, the identified faults.

43. On 1 October 2001 the Ministry gave Mr Lehtinen a written warning on the ground that he had given a misleading picture of the Ministry’s standpoint in a press release and in a memorandum addressed to health and safety district offices and had acted contrary to its communications policy. The Civil Service Appeal Committee confirmed the decision, on the ground that Mr Lehtinen had not only disobeyed his superior’s orders but had also continued dealing with the case after his removal from it on 16 February 2001. On the other hand, the Civil Service Appeal Committee considered that the television interview of 17 January 2001 had not been inappropriate so as to justify a written warning. The Korkein hallinto-oikeus (Supreme Administrative Court) confirmed the decision of the Civil Service Appeal Committee.

Main proceedings

44. AGM has brought proceedings against the Finnish State and against Mr Lehtinen in the Tampereen käräjäoikeus. AGM applies for them to be ordered jointly to compensate it for the loss it has suffered in the form of loss of turnover and business value in Finland and in other European countries.

45. To justify its claim AGM states that in 2000 and 2001 its lifts had a market share in Finland of between 10 and 15%. In consequence of the acts of Mr Lehtinen and the Ministry its turnover fell from about EUR 135 000 in 2000 to about EUR 1 070 in 2002. A substantial decline also took place in other European countries after 2001. The collapse in profit alone was about EUR 300 000 in 2001 and about EUR 750 000 in 2002.

46. AGM had suffered these and further losses because Mr Lehtinen had publicly disseminated one-sided, false and misleading information about AGM’s lifts, and the Ministry had not at any time corrected this false and misleading information, for example by publishing an official communiqué.

IV – Reference for a preliminary ruling and proceedings before the Court

47. By order of 7 November 2003 the Tampereen käräjäoikeus stayed the proceedings and asked the Court for a preliminary ruling on the following questions:

‘(1) Is there a measure having equivalent effect to quantitative restrictions within the meaning of Article 28 EC, or a measure which should be abstained from under the second paragraph of Article 10 EC, if an expert official belonging to the State’s health and safety at work organisation who does not have decision-making power, after a market supervision case has been raised but before the decision in the case, expresses his opinion on the main news programme of a national TV channel and in daily newspapers with wide circulation and also in commercial and labour market associations, in such a way that his statements, direct or repeated by others, on the hazard to health and even to life of the machinery manufactured and marketed by a specified manufacturer which is the subject of the market supervision case may give the machinery negative publicity and affect its marketing?

(2) Is Directive 98/37/EC on machinery to be interpreted as meaning that a vehicle lift is contrary to the essential safety requirements it lays down if it is not constructed in accordance with standard SFS-EN 1493, in such a way that in designing the structure account is not taken of the placing of the vehicle on the lifting arms in either driving direction and the load calculations of each lifting arm are not done for the least favourable loading situation?

(3) (a) If Question 1 is answered in the affirmative, are the official’s actions described in that question disproportionate having regard to the legitimate aim based on the protection of human health and life and hence contrary to the EC Treaty, even if Question 2 were also to be answered in the affirmative, having regard to the nature of the actions and in particular the fact that possible hazards could have been made known and the occurrence of hazards prevented by methods other than those described in Question 1, that the actions were taken even before the competent authority had made a decision in the market supervision case, and that the actions were likely in particular by being directed to a specified product to damage the marketing of that product?

(b) If the question of proportionality in Question 3(a) is for the national court to decide, is the main weight to be attached to the possible non-compliance with the European or national safety requirements or to the circumstances of the publication of the non-compliance with the requirements?

(4) May the actions of an official described in Question 1 be justified in the conditions described in Question 3(a) on the basis of freedom of speech within the meaning of Article 10 of the European Convention on Human Rights, even if they are contrary to Articles 28 EC and 30 EC or to Article 10 EC?

(5) (a) If the actions of an official described in Question 1 are contrary to Articles 28 EC and 30 EC or to Article 10 EC, is the breach so manifest and serious that, if the other conditions of liability are satisfied, the State is obliged under EC law to compensate the damage which may have been incurred by the undertaking marketing the machinery?

(b) Is the breach described in Question 5(a) manifest and serious even in a case where the authority/official with decision-making competence cannot be blamed for any fault or omission and the authority/official has not in any connection approved the measures or helped to bring about their actual consequences?

(c) Can Article 10 EC and in particular its second paragraph create rights for individuals in the circumstances described in Question 1?

(d) Can an official himself, in addition to the State, be similarly liable under EC law, in the circumstances mentioned in Question 1, for compensation for his actions, if they are contrary to EC law?

(e) Is the obtaining of compensation based on EC law impossible in practice or excessively difficult if in accordance with national provisions compensation for economic damage other than damage to persons and things may be obtained only if the damage has been caused by a criminal offence or in the exercise of public authority or if in other cases there are especially serious grounds for the awarding of damages?

(6) (a) If compensation is awarded under national law because of a breach of requirements or omission concerning the free movement of goods, does EC law require that the compensation to be awarded is an effective and deterrent sanction, and is it incompatible with the requirements of EC law concerning liability that under national law an official who has committed an infringement or omission is liable for reasonable but not necessarily full compensation and is not liable at all for compensation if he is culpable of only slight negligence, or that an official and the State which is liable for the official’s fault or omission may be ordered to pay compensation for economic damage other than damage to persons or things only if the damage has been caused by a criminal offence or in the exercise of public authority or if in other cases there are especially serious grounds for the awarding of compensation?

(b) If any of the limitations of liability mentioned in Question 6(a) is incompatible with EC law, is the limitation of compensation under national law to be disapplied with respect to the official in question even though the official’s liability would be more severe or more extensive than under national law?’

48. In the proceedings before the Court, AGM, the Finnish Government, Mr Lehtinen, the Commission and the Swedish Government made written and oral representations. The Netherlands Government made written submissions.

V – Legal analysis

A – Admissibility of the reference for a preliminary ruling

49. Mr Lehtinen considers that the Tampereen käräjäoikeus’s reference is inadmissible. He is of the view that the proceedings before the national court are at a preliminary or early stage in which the subject‑matter of the dispute has not yet been sufficiently identified. No evidence has been led, and so it has not been established that the facts are as described by the national court. It is therefore not clear that the questions referred are necessary. In any event, Community law does not impose liability on national officials, so that the questions on that point are inadmissible in any event.

50. It is clear from the second paragraph of Article 234 EC that it is for the national court to decide at what stage in the proceedings it is appropriate to refer a question to the Court of Justice for a preliminary ruling. It alone has a direct knowledge of the facts of the case and is therefore in the best position to appreciate at what stage in the proceedings it requires a preliminary ruling. ( )

51. Moreover, the Court has consistently held that it is for the national court to determine both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. The Court can decline to give a ruling only where it is quite obvious that the interpretation or the assessment sought bears no relation to the actual facts of the main action or its purpose, or where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( )

52. The national court has provided the factual and legal framework of the main proceedings in detail. In their observations the parties have confirmed the essential points of the facts as stated by the national court. The national court has given detailed reasons as to why it seeks the interpretation of provisions of Community law, why it has doubts as to the provisions’ interpretation and why it considers it necessary to obtain the interpretation in order to enable it to deliver judgment in the main proceedings. The parties have been able to make relevant submissions in the light of the facts as stated. In those circumstances the national court was entitled to regard the questions referred as necessary.

53. Whether Community law requires or permits liability to be imposed on national public officials is a question that requires an interpretation of substantive Community law. It must therefore be regarded as part of the substantive analysis of the questions referred.

54. The reference for a preliminary ruling is accordingly admissible.

B – The questions referred

55. The answer to the second question might affect the answers to the other questions, and this question should therefore be considered first. Moreover, because of the close relationship between the other questions, they must be answered together.

1. Interpretation of Directive 98/37 (Question 2)

56. For the purpose of assessing whether the lift complies with Community law, the national court asks the Court to interpret the Directive on the safety in use of machinery. In essence the question is whether the Directive requires that the lift must be able to support vehicles in both driving directions without affecting the manufacturer’s specified maximum load.

57. Harmonised standard EN 1493 requires the maximum load to be calculated in the most unfavourable configuration. It does not permit the driving direction to be restricted. On the contrary, point 5.6.4.2 of the standard ( ) provides that the maximum load for models such as the present is to be calculated in the less favourable of the two driving directions and is therefore to be stated to be lower than it would be in the more favourable driving direction.

58. However, under recitals 17 and 20 and Article 5(2) of the Directive, ( ) the fact that machinery is in conformity with the harmonised standard merely raises a presumption that it complies with the safety requirements laid down by the Directive. Accordingly, the standard merely makes it easier to prove that machinery complies with the Directive. It is equally possible to prove this by other means. The Finnish Government was correct in its submission that in Article 8(2)(b), for example, the Directive itself provides that examination of an example may provide such proof. Compliance with standard EN 1493 is therefore not a condition lifts must satisfy in order to comply with the Directive.

59. The Italian certifying body based its assessment of compliance with the Directive’s safety requirements on the manufacturer’s operating instructions. The Directive indeed requires only that machines must not pose any danger ‘when … used for their intended purpose’, ‘when [they are] used under the conditions foreseen by the manufacturer’, ‘when [used] under the conditions foreseen by the manufacturer’, and when used ‘under the … operating conditions provided for by the manufacturer’. ( ) In principle, therefore, AGM was correct in submitting that the manufacturer’s operating instructions must form the basis for the assessment.

60. However, in removing obstacles to the internal market the Directive has in mind in particular the ‘social costs’ of accidents caused by the use of machinery and emphasises that accidents can be reduced by inherently safe design of machinery. It is intended to harmonise safety provisions without lowering existing levels of protection. Maintaining and improving safety levels are included in its essential aims. ( )

61. Given these aims, the requirements of point 1.1.2 of Annex I to the Directive are to be given particular importance. ( ) The second sentence of Preliminary Observation 1 of Annex I states that these requirements apply to all machinery regardless of the manufacturer’s instructions. Paragraph (a) provides that machinery must be so constructed that when used under the conditions foreseen by the manufacturer it does not put persons at risk. The aim of safety measures must be to eliminate any risk of accident, even where they arise from foreseeable abnormal situations. Paragraph (c) provides that machinery must be designed to prevent abnormal use if such use would engender a risk.

62. Paragraph (b) provides that in selecting the most appropriate methods the manufacturer must first eliminate or reduce risks as far as possible by incorporating safety considerations into machinery design and construction. It is only against risks that cannot be eliminated in this way that he must take the necessary protection measures. It is only when this too is not entirely achievable that he must inform users of the residual risks.

63. Thus, it is to be held that the Directive places a high value on the protection of health and demands the highest achievable level of protection which is proportionate having regard to technical and economic possibilities. Accordingly, risks are to be prevented first in the construction of the machinery, failing which by means of suitable safety measures, and only as a last resort are to be minimised by providing information to users.

64. As the Commission submitted without contradiction, practice shows that in the current state of the art it is possible to design lifts so that they may withstand their maximum load regardless of the vehicle’s driving direction and the consequent distribution of its weight. In particular, it may be assumed that the load-bearing arms and other components of lifts such as those at issue in the main proceedings can be of a size such that the stated maximum load may be borne in every load-bearing situation. So far, it appears, there are no technical or insurmountable financial obstacles to this.

65. Alternatively, a protective measure could guarantee safety, for example an automatic warning mechanism which prevented danger where the load limit was exceeded by giving warning signals and blocking the lifting mechanism. This might well achieve safety in practice equivalent to a solution found in the design stage and might also prove to be more economical.

66. The third possibility would be operating instructions which minimised incorrect use and the risks resulting from it. By contrast with the two possibilities mentioned above, this solution is liable to allow mistakes in operation even if the instructions are supposedly simple, and therefore does not offer a comparable level of protection. The committees which coordinate certifying bodies were therefore right to recommend an interpretation on which restrictions on driving direction and the use of loading tables are not compatible with the Directive’s safety requirements.

Interim conclusion

67. The Directive is to be interpreted as meaning that vehicle lifts such as those at issue in the main proceedings comply with the Directive’s safety requirements only if they can bear vehicles up to their maximum permitted load in both driving directions, or at least guarantee by effective safety measures that any incorrect loading or overloading can be effectively prevented.

2. Interference with the free movement of goods; infringement of the duty of cooperation in good faith with the Community (Questions 1, 3 and 4)

68. By its first, third and fourth questions, the national court asks in substance whether in circumstances such as those of the main proceedings public statements like those of Mr Lehtinen may be regarded as acts attributable to the State which constitute a restriction on the free movement of goods (b) or an infringement of the duty of loyal cooperation in good faith with the Community (c), and if so to what extent they may be justified by freedom of expression or by the aim of protecting health, subject to the principle of proportionality (d). However, there must first be considered which reference standard is to be applied in the assessment (a).

(a) Reference standard: the Directive and not Article 28 EC

69. The national court asks first whether the conduct of Mr Lehtinen and of the Ministry is compatible with Article 28 EC. However, the application of Article 28 EC as the reference standard in the present case is precluded in so far as the area has been comprehensively harmonised by secondary legislation. All national measures in an area which has been harmonised at Community level must be assessed by reference to the harmonisation measure and not by reference to the fundamental freedoms. Whether there is an exclusive harmonisation measure is to be determined in particular by reference to the purposes and content of the measure in question. ( )

70. As is apparent from Article 1 in conjunction with point A(15) of Annex IV to the Directive, vehicle lifts are within the scope of the Directive. Article 3 of and Annex I to the Directive together provide comprehensive and specific safety requirements for machinery. Article 8 lays down precise and detailed provisions for assessing compliance with those requirements, and Article 10 provides for a CE marking to be conferred where compliance is established. Articles 2(1) and 3 prohibit the placing on the market of machinery which does not comply with the requirements. Article 4(1) of the Directive prohibits the Member States from impeding the placing on the market of machinery which complies with the Directive. These prohibitions reflect the Directive’s purpose as expressed in its recitals 6 and 7, namely to harmonise national safety provisions and procedures in order to eliminate obstacles to freedom of trade in machinery. This is confirmed by Article 2(2), since under that provision Member States cannot impose any additional safety requirements on machinery. It is only where dangers subsequently become apparent that Member States are to take appropriate measures under Article 7.

71. Thus, the safety requirements for placing machinery on the market which affect free movement of goods have been comprehensively harmonised. ( ) It follows that, as Mr Lehtinen rightly submitted at the oral hearing, the Directive is the only reference standard. Article 28 EC is not applicable, not even on a supplementary basis.

(b) Infringement of Article 4(1) of the Directive (Question 1)

72. The national court asks the Court to determine whether in the circumstances of the main proceedings there is a State measure which restricts the free movement of goods under Article 28 EC. However, in order to provide the national court with a useful answer, ( ) following the preceding finding it is necessary instead to consider whether the Directive has been infringed. ( ) The question is whether statements such as those by Mr Lehtinen and the Ministry infringe Article 4(1) of the Directive.

73. There is an infringement of Article 4(1) of the Directive if a Member State takes a measure which restricts or impedes the placing on the market of machinery which complies with the Directive.

(i) Whether the vehicle lift complies with the Directive

74. Article 4(1) prohibits restrictions only in respect of machinery which complies with the Directive. On the basis of the information available, however, it is to be assumed that a lift such as that manufactured by AGM does not objectively satisfy the safety requirements set out above.

75. The presumption of compliance laid down by Article 5(1) of the Directive applies. This is because the lift was certified as complying with the Directive and was given the CE conformity marking pursuant to Article 10 of the Directive. However, this does not mean that if dangers emerge the Member States are precluded from taking any measures at all. Instead, the first subparagraph of Article 7(1) of the Directive provides that a Member State must take all appropriate measures to withdraw machinery from the market if it ascertains that when used for its intended purpose it is liable to endanger the safety of persons or property. The second subparagraph provides that the Member State is to inform the Commission of such a measure without delay and give reasons for its decision. Accordingly, if it is established that there is a danger the presumption of compliance raised under Article 5(1) of the Directive is withdrawn.

76. However, according to the information provided by the national court, the competent Ministry neither made such a finding nor took any measures to withdraw the lifts from the market; nor was any reasoned notification sent to the Commission pursuant to the second subparagraph of Article 7(1) of the Directive. Accordingly, the facts of the main proceedings indicate that the presumption that the lift complied with the Directive’s requirements still obtained at the material time, and therefore that the prohibition in Article 4(1) of the Directive against restrictions still applied for AGM’s vehicle lifts.

(ii) Whether there is any conduct by the Member State

77. The national court considers it possible that Mr Lehtinen’s public descriptions of AGM’s lifts as not complying with the Directive and as dangerous constitute a restriction by the Member State on their being placed on the market. There must therefore be considered whether public warnings about a product by an official are to be regarded as conduct of the Member State. In other words, can statements such as Mr Lehtinen’s be attributed to the Member State?

78. It must first be recalled that to date the Court has not had to decide a case such as the present. To date the Court has proceeded on the footing that conduct is to be attributed to the State first (and of course) in the usual case in which public officials act in accordance with their superiors’ orders or the Member State’s laws. Second, it has attributed the acts of private persons to Member States where they have acted under the guidance of, and according to standards set by, Member States’ public authorities.( ) Third and finally, the Court has effectively attributed the conduct of private persons to a Member State where they have acted without official guidance but where there is a positive obligation on the Member State to prevent the private conduct in question. ( )

79. With the exception of AGM all of the parties take the view that the conduct of Mr Lehtinen is to be regarded as that of a private person. They regard this as justified by the fact that Mr Lehtinen did not have any decision-making powers and by the Ministry’s public statements that Mr Lehtinen was not expressing the Ministry’s official position. It follows that they recognise only the head of division’s conduct as attributable to the State. On that basis the Finnish State could incur liability only if the head of division infringed the State’s protective obligations by failing to take action against Mr Lehtinen, in accordance with the judgment in Commission v France ( ) and Regulation No 2679/98. ( ) However, these standards apply only if the State is under an obligation to react to the conduct of private persons, and not where it has itself acted – for example through its officials. ( ) It follows that there must first be established whether Mr Lehtinen was acting on behalf of the State or as a private person.

80. In doing so it must be taken into account that – by contrast with product bans – (State) product warnings do not in themselves have any effect in terms of restricting the market. On the contrary, such effects can arise only by virtue of the reactions of relevant market participants to the warnings. Whether an official’s statements are to be attributed to his employer thus depends decisively on how the relevant market participants perceive the statements. ( ) If market participants must assume in the circumstances that an official’s statements are a State product warning, then his statements affect their conduct with the same State authority as if they were a real State warning. The effects of such statements can then indeed be tantamount to an official prohibition.

81. As the national court explains, in the present case it seems obvious that the fall in sales to almost nil was caused by Mr Lehtinen’s statements. Such a fall means that the effect of the statements corresponds to a sales prohibition. Moreover, it follows from the case-law of the Court on liability of officials under Community law that the Community can incur liability not only in respect of formal administrative acts but also for de facto acts ( ) such as public statements ( ) or the publication of official information. ( ) In cases such as the present the further requirement that the statement be connected to the exercise of the office is satisfied.

82. It is for the Member States to ensure that their officials do not clothe with official authority their own views which contradict the official State position. If an impression of official authority none the less arises, this impression must be immediately eliminated by appropriate announcements. Otherwise, the statement is attributed to the State unless the official is obviously acting outside his competence.

83. Contrary to what the Netherlands and the Swedish Governments submitted, a Member State cannot avoid attribution by referring to the (Ministry’s) internal division of competency. ( ) The reason is that the effects of public statements depend exclusively on how their addressees perceive them.

84. That is consistent with public international law, to which the Court has referred in the past. ( ) It provides that acts are attributed only if and to the extent that State authority is ostensibly being exercised.( ) The other cases in which conduct is attributed to the State are also similar in public international law and European law: acts of State organs, ( ) acts in accordance with directions, ( ) and State tolerance, or failure to fulfil a duty to intervene. ( )

85. In accordance with these principles, the European Commission of Human Rights and the European Court of Human Rights have also held that public officials at any, even the lowest, level can infringe the European Convention for the Protection of Human Rights and Fundamental Freedoms. That applies also where those public officials act without authorisation and even where they act without or indeed against instructions. ( )

86. Of course, it is for the national courts to apply Community law to cases coming before them. ( ) However, the Court can give suggestions and guidance by reference to the facts of the case. ( )

87. As stated above, ( ) whether statements made by a public official are to be attributed to his employer depends decisively on whether in the circumstances the recipients of the statements assume that they are statements of the State made by the competent official exercising his official authority, or whether they realise that they are expressions of private opinion. In determining this question the national court must take all the circumstances of the case into account.

88. Some of the circumstances of the main proceedings indicate to recipients of the statements that Mr Lehtinen was expressing only his own opinion and tend to preclude attribution to the Finnish State.

89. For example, the letter dated 29 January 2001 by the Technical Trade Association to the Ministry relating to Mr Lehtinen’s statements of 9 January 2001 made in the course of a meeting of the Technical Trade Association indicates that it was clear to the audience at the meeting that Mr Lehtinen’s opinion was not the Ministry’s. ( )

90. The same applies as regards the articles in the regional newspapers of 17 February 2001 and 13 June 2001. The information available indicates that they gave the different views of Mr Lehtinen and of his head of division, and stated also that the head of division had decision-making powers and was Mr Lehtinen’s superior. ( )

91. On the other hand, some of the circumstances of the main proceedings could allow recipients of the statements to assume that Mr Lehtinen was expressing his department’s official position in his capacity as a competent public official and accordingly tend to suggest that his conduct should be attributed to the Finnish State.

92. For example, the information provided by the national court in relation to the television broadcast of 17 January 2001 suggests that the programme’s viewers could have obtained the impression that Mr Lehtinen was expressing the Ministry’s view in his capacity as the competent public official. This is because in the broadcast Mr Lehtinen’s view was described as being that of the Finnish authorities, and he appeared as a representative of the Ministry in an interview which had been recorded in his office with the permission of his immediate superior, the administrator. ( )

93. The information provided by the national court indicates also that the Metalworkers’ Union and persons responsible for health and safety in undertakings (in other words, the target group of buyers of vehicle lifts) could have obtained the impression that Mr Lehtinen’s view was the view of the competent Ministry. These groups had received Mr Lehtinen’s report dated 12 February 2001, which was headed ‘Ministry of Social Affairs and Health’, ‘Health and Safety Division’ and ‘Chief Engineer Tarmo Lehtinen’. ( )

94. According to the national court, the Swedish health and safety authorities too regarded the English version of Mr Lehtinen’s report dated 19 February 2001 as stating the Ministry’s view. ( ) The information also indicates that European experts likewise obtained the impression that the report reflected the Ministry’s view. ( )

95. As regards Mr Lehtinen’s statements, in its decision the national court also says that Mr Lehtinen appeared in each instance as an official of the Ministry and did not at any time describe his view as being his own private opinion. The national court says that Mr Lehtinen did not appear to the public as obviously acting outside his competence. In addition, until his head of division withdrew the case from him on 16 February 2001, Mr Lehtinen was entrusted with the market supervision procedure.

96. However, where an impression has been given that statements have been made with official authority which did not in fact exist, a Member State may prevent those statements being attributed to it if it eliminates this appearance immediately by means of appropriate announcements. ( )

97. According to the national court, however, the Ministry did not at any time inform the recipients of Mr Lehtinen’s statements of 17 January and 12 and 19 February 2001 of the Ministry’s differing view. There is nothing therefore to indicate that as regards these statements the Ministry acted quickly enough to eliminate the impression that Mr Lehtinen was stating the official position. Moreover, the two regional newspaper articles presumably did not have as widespread an effect as the television interview or the same addressees as Mr Lehtinen’s statements.

98. As a whole, the facts of the main proceedings surrounding Mr Lehtinen’s statements of 9 January, 17 February and 13 June 2001 tend to suggest that Mr Lehtinen was acting in a purely private capacity. On the other hand, the facts of the main proceedings surrounding his statements of 17 January and 12 and 19 February 2001 tend to suggest that his conduct is to be attributed to the Finnish State and is thus a Member State’s conduct. ( )

99. However, the national court will have to ascertain more details of the circumstances in order to make a conclusive decision on attribution. This is because it was not until the oral hearing before the Court that, in response to questions by the Court, the Finnish Government and Mr Lehtinen submitted that TV 1’s programme subsequently broadcast the Ministry’s view too. In addition, shortly afterwards the head of division issued a correction to both the Metalworkers’ Union and the Swedish Government to the effect that Mr Lehtinen had been expressing his private opinion. Accordingly, the national court must ascertain whether the Ministry’s measures in fact reached the recipients of Mr Lehtinen’s statements in sufficient time and eliminated the impression that the Ministry had made official statements. ( )

(iii) Restricting or impeding the placing of the lift on the market

100. There remains to be considered whether Mr Lehtinen’s conduct restricted or impeded the placing of the lift on the market.

101. As a secondary legal provision relating to free movement of goods, and in the terms of the ‘Dassonville formula’, Article 4(1) of the Directive prohibits all measures which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade in machinery falling within the scope of the Directive. ( )

– Restrictions constituted by conduct attributable to the State

102. If Mr Lehtinen’s public statements of 17 January and 12 and 19 February 2001 are attributed to the Finnish State, the question arises as to whether these statements by the State infringe Article 4 of the Directive.

103. In the judgment in the Buy Irish case the Court regarded a mere publicity campaign for domestic products as a restriction, even though it did not in any way deprecate competing foreign products. ( ) State announcements which are made in television news programmes, widely diffused and in apparently official reports and in newspaper interviews and which describe machinery as non-compliant and dangerous are clearly capable, at least indirectly and potentially, of impeding the placing of the machinery on the market.

104. For those reasons, the facts in the main proceedings tend to suggest that those statements by Mr Lehtinen constituted measures by the Member State which restricted or impeded the placing on the market of machinery certified as complying with the Directive, and which therefore infringed Article 4(1) of the Directive.

105. Accordingly, the question referred is to be answered as follows:

Unauthorised statements by a public official describing machinery which has been certified as complying with the Directive as non-compliant and dangerous constitute an infringement of Article 4(1) of the Directive if the official’s conduct is to be attributed to the Member State. Such statements are to be attributed if their form and circumstances give recipients of the statements the impression that they are official pronouncements of the State and not the private opinion of the official. In this connection it may in particular be important:

– that the official is in general competent for the area in question,

– that the official’s written statements appear under the official letterhead of the competent department,

– that the official gives television interviews on the premises of his department,

– that the official does not indicate that his statements are private or that they differ from the official view of the competent department, and

– that the competent State departments do not immediately take the steps necessary to eliminate the impression given to recipients of the official’s statements that they represent official statements of the State.

– Restrictions constituted by conduct not attributable to the State

106. To the extent that on the application of the above criteria the national court holds that Mr Lehtinen’s statements are to be regarded as private and does not attribute them to the Finnish State, the question arises as to whether there is any culpable failure by the Finnish State to act which infringes Article 4 of the Directive.

107. The Court has held that Articles 28 EC and 10 EC require the Member States to take all necessary and appropriate measures to ensure that the fundamental freedom is respected on their territory and to adopt adequate measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private individuals on their territory aimed at products originating in other Member States. ( ) However, the Member States enjoy a margin of discretion in determining what measures are necessary and most appropriate in a given situation – it is not for the Community institutions to act in place of the Member States and to prescribe for them the measures which they must adopt and effectively apply. ( ) However, it falls to the Court, taking due account of this discretion, to verify whether the Member State concerned has adopted any appropriate measures at all. ( )

108. According to the national court, in relation to Mr Lehtinen’s statement of 9 January 2001, the Ministry was informed by the Technical Trade Association’s subsequent letter that it was aware of the Ministry’s different view. In addition, on 8 February 2001 the head of division sent a fax to the representative of the Central Association of Industry and Employers in which he contradicted Mr Lehtinen’s statements. The newspaper articles of 17 February 2001 and of 13 June 2001 ( ) indicated that the market supervision procedure had not yet been concluded, that at that time the Ministry was proceeding on the footing that the machinery complied with the Directive, and that the Ministry did not regard it as in any way dangerous. ( )

109. These circumstances suggest that the Ministry was entitled to assume that no further measures were necessary. On that basis the Finnish State fulfilled its protective obligations to intervene in relation to acts by private persons which interfere with free movement of goods. If so, there were no restrictions by a Member State within the meaning of Article 4(1) of the Directive.

(c) Second paragraph of Article 10 EC

110. By its first question, the national court also asks whether the conduct of Mr Lehtinen or of the Ministry infringes the second paragraph of Article 10 EC. As a lex generalis that provision must give way to infringements of the more specific provision. ( ) The second paragraph of Article 10 EC can itself confer rights only where there is a failure to fulfil obligations over and above the infringement of the particular provision. ( ) The main proceedings give no reason to suppose that there has been such a failure.

(d) Justification (Questions 3 and 4)

111. Having regard to the criterion of assessment and to the above conclusions, by its third and fourth questions the national court asks in substance whether the infringement of Article 4(1) of the Directive by Mr Lehtinen’s conduct may be justified either by the aim of protecting health or by freedom of expression.

(i) Justification by the aim of protection of health (Question 3)

112. The Directive aims precisely at protecting human health in relation to machinery within its scope. For that reason, in the case of machinery which complies with the Directive it allows additional restrictions on its being placed on the market on the ground of protection of health only under Article 7(1).

113. According to the national court, the Ministry did not take any measure under Article 7(1) of the Directive. At the time of Mr Lehtinen’s statements the market supervision procedure was ongoing, and the head of division who had the power to decide was of the view that it had not been established that there was any danger to human health within the meaning of Article 7. There was no notification to the Commission pursuant to the second subparagraph of Article 7(1). So it is difficult to justify any measure by reference to the aim of protecting health, given that the Member State did not pursue that aim at all.

114. Apart from that, on the information provided by the national court it is not apparent that objectively there was any danger. Indeed, even if it were possible to find that there was a danger, justification would be precluded by the lack of proportionality of the interference Mr Lehtinen caused.

115. The Court has consistently held that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. When there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. ( )

116. Public warnings such as Mr Lehtinen’s against the danger posed by AGM’s lifts may indeed be appropriate for reducing the ‘danger’. However, there is doubt as to whether they were necessary. Possible alternative measures which would have been equally suitable but less drastic included, for example, a letter to persons who used the lifts informing them specifically of the additional dangers Mr Lehtinen considered to exist. Not for nothing had this measure been chosen in relation to the defective locking system.

117. In any event, the statements were surely not appropriate. The facts as described by the national court indicate that the ‘danger’ Mr Lehtinen saw in the restriction on driving direction cannot have been particularly serious. They indicate that the machinery and the loading tables were easy to operate and that despite the large number of models sold the restriction on the driving direction had not caused any accidents, so far as was known. ( ) On the other hand, public statements of the form and content of Mr Lehtinen’s are clearly capable of interfering very significantly with the free movement of goods.

(ii) Justification by freedom of expression (Question 4)

118. Principally, the Swedish Government rightly emphasised the importance of the fundamental right to freedom of expression guaranteed by Article 12 of the Finnish Constitution, by Article 10 of the European Convention on Human Rights, and as a fundamental general principle of Community law. As part of the essential basis of a democratic society, freedom of expression is enjoyed by officials of a Member State as it is by Community officials. ( )

119. On the other hand, the Member State itself does not have any right to freedom of expression. Instead – as is the case with the Community institutions – it is the person obliged by this guarantee. The Member State must guarantee freedom of expression to persons who are subject to its laws, and cannot claim it against them.

– Justification of conduct attributable to the Member State

120. For that reason, to the extent that Mr Lehtinen’s conduct is to be attributed to the Finnish State no justification is possible in terms of freedom of expression. This is because Mr Lehtinen’s statements of 17 January and 12 and 19 February 2001 are attributed to the State as its own, and are not statements of a private person. The Finnish State cannot claim a right of its own to freedom of expression and enforce it against AGM. Nor would it have had to respect any right of Mr Lehtinen, its official, in this respect. This is because although Mr Lehtinen may have had a right in terms of freedom of expression to make statements in his own name, he did not have the right to make statements to the public apparently as the representative of the Finnish State.

– Justification of conduct not attributable to the Member State

121. By contrast, in principle it is possible for freedom of expression to justify Mr Lehtinen’s conduct in so far as it is not attributable to the Finnish State. Where an official makes statements in his own name, he is exercising his own right to freedom of expression against his Member State. The Member State has to respect this fundamental right. However, because the Member State must at the same time guarantee free movement of goods and this may result in an obligation to act, ( ) tension can arise.

122. Where such tension exists, a Member State must be able to rely upon its official’s right to freedom of expression in so far as it has to respect it in the particular circumstances. Accordingly, the various interests have to be weighed up having regard to all the circumstances of the individual case. In that exercise the Member State enjoys a wide discretion. However, the Court must consider whether any restrictions on the fundamental freedoms are proportionate to the protection of fundamental rights. ( )

123. According to the national court, Mr Lehtinen expressed his views before the Ministry had made a decision. His criticism was very sharp and was directed at only one make of lift, but he justified his view by reference to relevant considerations relating to the particular model of lift and did not criticise it any further than was necessary. By his statements, he pursued also at least the aim of protecting health. Mr Lehtinen exercised his right to freedom of expression in an area in which he had particular expertise, and his statements pursued important aims of the public interest.

124. In that context the Ministry made it clear to the readers of the newspaper articles who were in need of information that Mr Lehtinen was expressing his own private opinion, that the market supervision procedure was ongoing and that there was no evidence that the lifts were dangerous or did not comply with standards. Thus, the Ministry took steps to limit the effects of Mr Lehtinen’s statements on free movement of goods as far as possible.

125. In those circumstances it is to be assumed that it was within the Ministry’s discretion to proceed on the footing that any residual restrictions on free movement of goods because of Mr Lehtinen’s private statements were acceptable because it was not possible to provide more extensive protection without interfering disproportionately in Mr Lehtinen’s right to freedom of expression.

126. In particular, the Ministry could not have imposed on Mr Lehtinen a preventive prohibition on making statements. Preventive prohibitions on making statements negate freedom of expression in the individual case and for that reason may be justified only in exceptional circumstances. In any event, even if Finnish law (on officials) allowed a preventive prohibition, in the present circumstances Community law cannot require that it be imposed in order to protect free movement of goods. Nor do the form and timing of the statements suggest that more serious interference was necessary or that the measures actually taken were outside the scope of the Finnish State’s discretion.

(iii) Interim conclusion

127. In circumstances such as those of the main proceedings, an infringement of Article 4(1) of the Directive constituted by statements of an official which are to be attributed to his Member State cannot be justified by reference to the aim of protecting health or to the official’s right to freedom of expression. However, in circumstances such as those of the main proceedings, a Member State is not obliged to prohibit one of its officials from making private statements which might affect the free movement of goods.

3. State liability and liability of officials (Questions 5 and 6)

128. On the assumption that on facts such as those of the main proceedings there is a breach of Articles 28 EC and 30 EC or of Article 10 EC, the national court also asks whether the conditions for State liability under Community law are satisfied, whether Community law also allows or requires liability to be imposed on the official in question, and to what extent the conditions for such a liability require Finnish law to be interpreted in a way such that it is in conformity with Community law.

129. Having regard to the conclusions of the above analysis, the questions posed by the national court are to be answered by reference to an infringement of Article 4(1) of the Directive constituted by Mr Lehtinen’s statements of 17 January and 12 and 19 February 2001, which the facts of the main proceedings suggest should be attributed to the Finnish State and should thus be regarded as measures by a Member State which restrict or impede the placing of the vehicle lifts on the market.

(a) State liability

130. According to the case-law of the Court, three conditions must be satisfied for a Member State to be required to make good loss and damage caused to individuals as a result of breaches of Community law. The rule of law infringed must confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the loss or damage sustained by the injured parties. ( )

131. Those three conditions must be satisfied both where the loss or damage is the result of a failure to act on the part of the Member State and where it is the result of the adoption of a legislative or administrative act in breach of Community law, whether it was adopted by the Member State itself or by a public law body which is legally independent from the State. ( )

(i) Rights conferred on individuals (Question 5(c))

132. By paragraph (c) of its fifth question, the national court asks whether Article 10 EC, and in particular its second paragraph, is capable of conferring rights on individuals in the circumstances of the present case.

133. Because the Directive is primarily applicable, Article 10 EC cannot in the present circumstances confer rights of its own on which an individual could rely. ( ) The reason is that Article 4(1) of the Directive confers rights on individual market participants which they may enforce against the Member States. ( )

(ii) Sufficiently serious breach (Question 5(a) and (b))

134. By paragraphs (a) and (b) of its fifth question, the national court asks essentially whether the infringements of Community law disclosed in the circumstances of the present case are sufficiently serious as to found State liability.

135. The decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. The factors which the competent court must take into consideration include the clarity and precision of the rule breached, the measure of discretion left to the national authorities, whether the infringement and the damage caused was intentional, and whether any error of law was excusable. ( )

136. However, where, at the time when it commits the infringement, the Member State is not called upon to make any legislative choices and has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach. ( )

137. Even in the case of machinery which is only presumed to comply with the Directive, Article 4(1) of the Directive does not confer on the Member States any discretion as to evaluation, form or judgment. If doubts subsequently arise as to whether machinery is compliant, the Directive provides only for the measures permitted by Article 7. However, according to the national court the competent Ministry deliberately did not exercise this right and none the less allowed Mr Lehtinen to continue to act. ( ) Accordingly, the facts of the main proceedings tend to suggest that the infringement constituted by the statements of Mr Lehtinen which may be attributed to the State is sufficiently serious.

(iii) Additional national requirements (Question 5(e) and Question 6(a) first and third parts)

138. By paragraph (e) of its fifth question, and the first and third parts of paragraph (a) of its sixth question, the national court asks in substance whether the law of the Member State can impose additional conditions for State liability, in particular in relation to economic damage other than damage to persons or things, or whether compensation must be an effective and deterrent sanction.

139. If the conditions for a claim for damages under Community law are satisfied, according to the case-law of the Court the Member State must make good the consequences of the loss and damage caused in accordance with the domestic rules on liability, provided that the conditions for compensation are not less favourable than those relating to similar domestic claims and are not such as in practice to make it impossible or excessively difficult for the person who has suffered the harm to obtain redress. ( ) For that reason, total exclusion of, for example, loss of profit or other heads of damage for which compensation may be awarded cannot be accepted, because, in the context of certain litigation, this would make it practically impossible to make good the damage. ( )

140. Accordingly, Community law requires effective redress and does not allow the law of a Member State to impose additional conditions which would make it materially more difficult to recover damages or certain heads of damage.

141. However, according to the national court, Finnish law provides for damages for pure economic loss only if the damage has been caused by a criminal offence or in the exercise of public authority, or if in other cases there are especially serious grounds for the awarding of damages. Such additional conditions for the claim must be interpreted such that they do not make it materially more difficult to obtain damages for pure economic loss. The requirements of Community law would be satisfied if the provisions of the Member State’s law could be interpreted so as to conform to Community law in such a way as to exclude any excessive difficulty. This could be done, for example, by always regarding infringements of Community law as especially serious grounds.

142. It also follows from the case-law of the Court that the liability of a Member State imposed by Community law serves not as a deterrent and a sanction but as compensation for loss and damage the individual suffers by reason of infringements by the Member State of Community law.

(iv) Interim conclusion

143. Article 4(1) of the Directive confers on individuals rights which they may enforce against the Member States. Article 10 EC is not applicable in addition to it. As regards machinery which complies with the Directive (or is even merely presumed to comply with it), Article 4(1) of the Directive does not confer on the Member States any discretion as to evaluation, form or judgment. An infringement of Article 4(1) constitutes a sufficiently serious breach to found State liability under Community law. Community law does not tolerate any additional conditions under the law of a Member State which make it materially more difficult in practice to recover damages generally or particular heads of damage.

(b) Liability of public officials

(i) Whether it is possible for officials to incur an additional liability under Community law (Question 5(d))

144. By paragraph (d) of its fifth question, the national court asks whether, in addition to the State, an official may be held liable for his infringements of Community law.

145. Community law leaves the structure of liability to be determined by the legal systems of the Member States, provided that it is not in fact excessively difficult in practice to enforce claims under Community law and that the award of compensation is effectively guaranteed. For example, the Court has also recognised that Community law does not preclude a public law body, in addition to the Member State itself, from being liable to make good loss and damage. ( )

146. Provided that there is a practical and effective guarantee that compensation will be paid in respect of the damage caused by a public authority of a Member State in infringing Community law, there is nothing in Community law to prevent liability being imposed on another person in addition to the Member State. In particular, Community law does not thus preclude an additional liability being imposed on the official whose conduct is in question.

(ii) Community law obligations to impose liability on public officials (Question 6(a), first and second parts)

147. By the first and second parts of paragraph (a) of its sixth question, the national court asks whether Community law imposes an obligation on Member States to make its officials liable for their infringements of Community law.

148. There is nothing in the case-law of the Court ( ) that would impose a Community law obligation on the Member States to make their officials personally liable. On the contrary, Community law on State liability does not affect the freedom of Member States to arrange their State structures as they want, but instead leaves to them to decide how such claims may be enforced. However, the enforcement in practice of rights conferred by Community law must not be made excessively difficult and the payment of compensation must be guaranteed effectively. It follows that the decisive point is that under the law of the Member State the liability is enforceable at least against a person comparable to the Member State, capable of satisfying claims, and not who that is. Accordingly, if the law of the Member State already provides for State liability which satisfies the requirements of Community law, there is no obligation under Community law to provide in addition that an official should be liable.

(iii) Additional conditions or limitations upon the liability of officials (Question 6(b))

149. Finally, by paragraph (b) of its sixth question, the national court asks whether the Member States may provide for additional conditions or limitations on the liability of public officials.

150. It follows from the case-law cited above ( ) that, in the case of any additional liability imposed on public officials, it is lawful to impose additional conditions or limitations on the liability of officials by comparison with the criteria imposed by Community law for State liability in respect of infringements of Community law. In those circumstances an effective entitlement to damages is already guaranteed by the State’s liability.

151. If, on the other hand, the law of the Member State provides for State liability in such a way that liability is imposed exclusively on officials and is either guaranteed by the State in case of non-performance or is transferred to it, then the requirements of Community law as to effective protection of the individual’s rights must also be given effect in the provisions relating to officials’ liability. If the State’s liability derives from the official’s liability, no additional conditions under the law of a Member State may make obtaining damages materially more difficult.

(iv) Interim conclusion

152. Community law permits but does not require an additional liability to be imposed on officials. Such a liability may be subject to additional conditions or limitations by comparison with the criteria for State liability under Community law. By contrast, if the State’s liability arises via an official’s liability, the Community law right to effective protection of individuals’ rights cannot tolerate additional conditions under the law of a Member State if they make obtaining compensation materially more difficult.

VI – Conclusion

153. On the basis of the foregoing considerations, I propose that the Court give the following answers to the Tampereen käräjäoikeus:

(1) Directive 98/37/EC of the European Parliament and of the Council of 22 June 1998 on the approximation of the laws of the Member States relating to machinery is to be interpreted as meaning that vehicle lifts such as those at issue in the main proceedings comply with the Directive’s safety requirements only if they can bear vehicles up to their maximum permitted load in both driving directions, or at least guarantee by effective safety measures that any incorrect loading or overloading can be effectively prevented.

(2) Unauthorised statements by a public official describing machinery which has been certified as complying with the Directive as non-compliant and dangerous constitute an infringement of Article 4(1) of the Directive if the official’s conduct is to be attributed to the Member State. Such statements are to be attributed if their form and circumstances give recipients of the statements the impression that they are official pronouncements of the State and not the private opinion of the official. In this connection it may in particular be important:

– that the official is in general competent for the area in question,

– that the official’s written statements appear under the official letterhead of the competent department,

– that the official gives television interviews on the premises of his department,

– that the official does not indicate that his statements are private or that they differ from the official view of the competent department, and

– that the competent State departments do not immediately take the steps necessary to eliminate the impression given to recipients of the official’s statements that they represent official statements of the State.

(3) In circumstances such as those of the main proceedings, an infringement of Article 4(1) of the Directive constituted by statements of an official which are to be attributed to his Member State cannot be justified by reference to the aim of protecting health or to the official’s right to freedom of expression. However, in circumstances such as those of the main proceedings, a Member State is not obliged to prohibit one of its officials from making private statements which might affect the free movement of goods.

(4) Article 4(1) of the Directive confers on individuals rights which they may enforce against the Member States. Article 10 EC is not applicable in addition to it. As regards machinery which complies with the Directive (or is even merely presumed to comply with it), Article 4(1) of the Directive does not confer on the Member States any discretion as to evaluation, form or judgment. An infringement of Article 4(1) constitutes a sufficiently serious breach to found State liability under Community law. Community law does not tolerate any additional conditions under the law of a Member State which make it materially more difficult in practice to recover damages generally or particular heads of damage.

(5) Community law permits but does not require an additional liability to be imposed on officials. Such a liability may be subject to additional conditions or limitations by comparison with the criteria for State liability under Community law. By contrast, if the State’s liability arises via an official’s liability, the Community law right to effective protection of individuals’ rights cannot tolerate additional conditions under the law of a Member State if they make obtaining compensation materially more difficult.