Case T‑474/15

Global Garden Products Italy SpA (GGP Italy)

v

European Commission

(Protection of the health and safety of consumers and workers — Directive 2006/42/EC — Safeguard clause — National measure of withdrawal from the market and prohibition of placing on the market of a lawn mower — Requirements concerning protective devices — Successive versions of a harmonised standard — Legal certainty — Commission decision declaring the measure justified — Error of law)

Summary — Judgment of the General Court (Second Chamber), 26 January 2017

Approximation of laws — Machines — Directive 2006/42 — Marketing — Member State using the safeguard clause in case of health or safety risk — Approval by the Commission — Adoption of a decision confirming a national measure prohibiting marketing on the basis of non-compliance of the machine with a harmonised standard, despite its compliance with an earlier standard published under Directive 98/37 — No indication of the Official Journal of the European Union of the date on which the earlier standard withdrawn — Not permissible — Annulment of the decision

See the text of the decision. (see para. 31)

It is not for the Commission, when adopting a decision taken on the basis of Article 11(3) of Directive 2006/42 on machinery, to review every aspect of the legality of national measures leading to the triggering of the safeguard clause provided for in that article. In that regard, Article 20 of that directive explicitly mentions the legal remedies available to him under the laws in force in the Member State concerned, which shows, first, that it covers national measures taken on the basis of the directive and, secondly, that the review of those measures is the responsibility of the national courts. That article therefore does not create obligations for the Commission. In the context of the implementation of Article 11(3) of Directive 2006/42, the Commission’s primary role is to review whether the appropriate measures which are notified to it by a Member State are justified, from a factual and legal point of view, in order to avoid the risk that machinery could compromise, as it is stated in Article 11(1) of that directive, the health and safety of persons or, where appropriate, domestic animals, property or the environment. (see paras 39, 40)

There is nothing to prevent the appropriate measures which Member States must adopt and communicate to the Commission under the safeguard clause provided for in Article 11 of Directive 2006/42 taking the form of non-unilateral measures or measures which are not directly binding. Thus communication of the fact that, following action taken by the national authorities, the distributor took voluntary measures of withdrawal from the market and not to place on the market does constitute the communication of an appropriate measure capable of giving rise to a Commission decision taken on the basis of Article 11(3) of Directive 2006/42. (see para. 42)

An undertaking which manufactures machinery retains an interest in bringing proceedings against a Commission decision confirming the assessment of the national authorities concerning its marketing, in accordance with which that machinery does not conform to the essential health and safety requirements set out in Directive 2006/42, even if the applicant has confirmed the voluntary withdrawal from the market and non-placing on the market of the machinery at issue, in so far as the contested assessment definitely leads to reputational damage, in the light in particular of the fact that the brand of the machinery is well known, and in so far as it has already led the national authorities to state that that machinery should no longer be used. The applicant’s legal interest in bringing proceedings also exists to the extent that the possible annulment of the contested decision would allow a recurrence of the unlawfulness to be avoided. (see para. 57)

Under Article 7 of Directive 2006/42, more specifically under paragraphs (2) and (3) thereof, it is the publication by the Commission of the reference of a harmonised standard in the Official Journal which confers on it legal force allowing manufacturers of machinery or their representatives to benefit, with respect to the machinery they market and which are in conformity, from a presumption of conformity with the essential health and safety requirements set out in that directive and covered by that published harmonised standard. That provision refers without restriction to harmonised standards, the references of which have been published in the Official Journal, without restricting its scope and contents to harmonised standards whose references were published under that directive. That provision therefore precludes a finding that the publications of references of harmonised standards made under Directive 98/37 were implicitly repealed at the same time as that directive. It follows that harmonised standards whose references were published under Directive 98/37 fall within the scope of application of Article 7 of Directive 2006/42 as long as the decision giving them legal force so as to provide a presumption of conformity with the essential health and safety requirements set out in the directive applicable at the time the machinery concerned was placed on the market or entered into service, namely the publication of their reference in the Official Journal, is not explicitly repealed. The Court must therefore annul a Commission decision confirming the assessment of the national authorities concerning machinery which is based not on a clear demonstration of an infringement of the essential health and safety requirements set out in Directive 2006/42, but on mere non-conformity of that machinery with a harmonised standard replacing a harmonised standard published under Directive 98/37, whereas, in the absence of information to the contrary published in the Official Journal by the Commission, until the date of withdrawal retained by the standardisation body at the time the harmonised standard replacing it was adopted, conformity of the machinery with the earlier standard still conferred upon it a presumption of conformity with those requirements. (see paras 60, 61, 70, 71)

See the text of the decision. (see para. 60)