Commission Opinion of 27 May 2008 in application of Article 7 of Directive 98/37/EC of the European Parliament and of the Council as regards a prohibition measure adopted by Finland in respect of a forestry harvester bearing the trademark HARVERI MD-2007-144 (Text with EEA relevance)
Date: 2008-05-27
Institutions: European Commission
Subjects: Finland, agricultural machinery, defective product, market approval, occupational safety, product safety, safety standard

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Official Journal of the European Union

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I

(Resolutions, recommendations and opinions)

OPINIONS

COMMISSION

COMMISSION OPINION

of 27 May 2008

in application of Article 7 of Directive 98/37/EC of the European Parliament and of the Council as
regards a prohibition measure adopted by Finland in respect of a forestry harvester bearing the
trademark HARVERI MD-2007-144

(Text with EEA relevance)

(2008/C 131/01)

1. The notification by the Finnish authorities

respect to the machinery concerned, in accordance with their
obligations under Article 2(1).

Article 2(1) of Directive 98/37/EC on the approximation of the
laws of the Member States relating to machinery states that
Member States shall take all appropriate measures to ensure that
machinery covered by the Directive may be placed on the
market and put into service only if it does not endanger the
health and safety of persons and, where appropriate, domestic
animals or property, when properly installed and maintained
and used for its intended purpose.

Article 7(1) of the Directive provides that where a Member State
ascertains that machinery bearing the CE marking used in
accordance with its intended purpose is liable to endanger the
safety of persons, and, where appropriate, domestic animals or
property, it shall take all appropriate measures to withdraw such
machinery from the market, to prohibit the placing on the
market, putting into service or use thereof, or to restrict free
movement thereof. The Member State shall immediately inform
the Commission of any such measure, indicating the reason for
its decision.

2. The reasons given by the Finnish authorities

The HARVERI
forestry harvester concerned by the measure
taken by the Finnish authorities is a small harvester for forestry
thinning work. The machine has a self-propelled all-terrain
chassis fitted at the front with an articulated arm on which a
cutting device is mounted. The functions of the machine are to
fell trees, to lop off the branches, to cut the tree trunk into logs,
to load the logs into a rack mounted on top of the chassis, to
transport the logs and to unload them to the ground by tipping
the rack to one side. All the functions of the machine are
controlled by a pedestrian operator by means of a remote radio
control system.

The reason given by the Finnish authorities for the prohibition
measure is the non-conformity of
the machinery with the
following essential health and safety requirements of Annex I to
Directive 98/37/EC.

On 5 November 2007, the Finnish authorities notified to the
European Commission a measure prohibiting the placing on the
market of a forestry harvester bearing the trademark HARVERI
manufactured by Oy RCM Harvester Ltd, Aakkulantie 46,
FI-36220 Kangasala.

1.1.2. Principles of safety integration

The manufacturer has not shown that the principles of safety
integration, in accordance with the given order of priority, have
been applied in the design and construction of the machine.

Pursuant to Article 7(2) of the Directive, the Commission is
to declare
required, after consulting the parties concerned,
whether it finds such a measure justified or not. If the measure
is found justified, the Commission shall
inform the Member
they can take all appropriate measures with
States so that

1.3.1. Stability

Insufficient measures have been taken to ensure that
the
operator is not at risk of being crushed by the machine if the
machine rolls over during use on rough and oblique surfaces.

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1.3.2. and 3.4.2. Risk of break up during operation and 1.3.3.

Risks due to falling or ejected objects

Insufficient structural measures have been taken to prevent the
risk of the operator from being injured by falling trees and from
being hit by ejected objects, such as fragments of the chain saw,
in case of break up during operation.

the machine if

device to prevent operation of
the remote
controls were located closer to the chassis than a given distance.
However,
the technical means
necessary to achieve this objective had not been available when
the HARVERI forestry harvester was first designed and placed
on the market.

the manufacturer stated that

3.2.1. Driving position

4. The Commission's observations

Insufficient measures have been taken to ensure that
the
operator does not control the machine from positions other
than those foreseen by the manufacturer's instructions in order
to gain adequate visibility.

With respect to the non-conformities cited by the Finnish autho-
rities, the Commission makes the following observations.

3. The comments of the manufacturer

On 26 November 2007, the Commission wrote to the manufac-
turer asking him to communicate his observations regarding the
measure taken by the Finnish authorities.

The manufacturer replied by letter dated 14 December 2007
including a written submission and copies of two statements
made in support of an appeal to the Finnish Supreme Adminis-
trative Court against the prohibition measure. On 29 January
2008, a meeting was held between representatives of the manu-
facturer and the services of the Commission.

The manufacturer stated that the principles of safety integration
set out in Section 1.1.2 of Annex I to Directive had been
the
correctly applied during the design and construction of
machinery.

1.1.2. Principles of safety integration

Section 1.1.2 paragraph (a) of Annex I to Directive 98/37/EC
indicates that the aim of measures taken by the manufacturer of
machinery must be to eliminate any risk of accident through-
out the foreseeable lifetime of the machinery, even where risks
of accident arise from foreseeable abnormal situations. Para-
graph (b) of the same Section states that measures to reduce
risks and protective measures shall be given priority over infor-
mation to users on residual risks and training requirements.
Paragraph (c) of the same Section requires that, 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.

the conformity with these
The Commission considers that
requirements must be appreciated in light of
the measures
adopted to comply with the particular essential health and
safety requirements mentioned below.

Concerning the stability of the machine, the manufacturer stated
the machine was equipped with a suspension system
that
enabling the chassis to remain in a stable position on uneven
ground and that maximum travel speed of the machine was
limited by design to 3,7 km/h.

1.3.1. Stability

Concerning to the risk due to ejected objects and the risk due to
break up during operation, the manufacturer pointed out that
these risks were prevented by means of a protective housing
surrounding the cutting device. The cutting device fitted to the
HARVERI forestry harvester and its protective housing consti-
tuted a sub-assembly that was identical to that fitted to many
other types of forestry harvester and that practical experience
had shown to be safe and reliable.

Concerning the driving position, the manufacturer stated that
precise indications were given in the instructions on the safe use
of the machine and on the operator training required.

The manufacturer informed the Commission that a new version
of the forestry harvester was under development, fitted with a

Section 1.3.1 of Annex I requires that machinery, components
and fittings thereof must be so designed and constructed that
they are stable enough, under the foreseen operating conditions
(if necessary taking climatic conditions into account) for use
without risk of overturning, falling or unexpected movement.

In this respect, the Commission observes that the chassis and
suspension system of
forestry harvester are
the HARVERI
designed to maintain the stability of the machine during travel
and operation on uneven ground. The Commission considers
that the Finnish authorities have not demonstrated the non-con-
formity of the HARVERI forestry harvester with this require-
ment. However, despite the measures taken by the manufacturer,
there remains a risk of the machine tipping or rolling over on
extreme slopes.

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1.3.2. and 3.4.2. Risk of break up during operation

observes that the operator is also exposed to a risk of being hit
by falling logs,
in particular when they are unloaded to the
ground by tipping the rack on top of the chassis.

Section 1.3.2 of Annex I, on the risk of break up during opera-
tion, requires that the various parts of machinery and their
linkages must be able to withstand the stresses to which they
are subject when used as foreseen by the manufacturer. Where a
risk of rupture or disintegration remains, despite the measures
taken, the moving parts must be mounted and positioned in
such a way that,
in case of rupture, their fragments will be
contained. Section 3.4.2 of Annex I, on the risk of break-up
during operation for mobile machinery, requires that parts of
machinery rotating at high speed which, despite the measures
taken, may break up or disintegrate, must be mounted and
guarded in such a way that, in case of breakage, their fragments
will be contained or, if that is not possible, cannot be projected
towards the driving and/or operation positions.

the Commission observes that

In this respect,
in order to
prevent risks due to the break up of the chain saw during opera-
tion, the cutting means of the HARVERI forestry harvester are
surrounded by a protective housing to the extent that is compa-
tible with the function of
the machine. The Commission
considers that the Finnish authorities have not demonstrated the
requirements.
non-conformity of
However, despite the measures taken by the manufacturer, there
remains a risk due to break up during operation.

the machine with these

1.3.3. Risks due to falling or ejected objects and 3.2.1. Driving

position

Section 1.3.3 of Annex I requires that precautions must be
taken to prevent risks from falling or ejected objects (e.g. work
pieces, tools, cuttings, fragments, waste, etc.). Section 3.2.1 of
Annex I requires, in particular, that visibility from the driving
position must be such that the driver can in complete safety for
himself and the exposed persons, operate the machinery and its
tools in their intended conditions of use.

In this respect, the Commission observes that, during operation
of the HARVERI forestry harvester, there remains a risk due to
the ejection of fragments in case of break-up of the chain saw,
since the cutting means cannot be entirely enclosed. The manu-
facturer's instructions indicate that the speed of the chain saw is
35 m/s during cutting operations and higher if the saw is not in
contact with the tree, and that the kinetic energy of a fragment
of chain which has broken up is as high as that of a bullet from
a pistol. The instructions indicate that there is a risk of serious
or fatal injury in the operating zone situated in an angle of 60°
either side of the centre line of the cutting means.

The Commission observes that there is also a risk due to falling
objects. The manufacturer's instructions indicate that, during
felling operations, there is a risk of the tree falling in an unin-
tended direction due to its weight or angle, to the effects of
wind, snow or other trees, to a failure of one of the components
of the machine or to an error by the operator. The Commission

The Commission further observes that there is a risk of the
operator being crushed if the machine tips or rolls over on
extreme slopes.

The manufacturer's instructions indicate that the operator shall
stand in a safe driving zone when using the remote controls.
The driving zone is situated about 2 metres away from the rear
of the machine and about 4 metres away from the side of the
machine. Furthermore, the instructions warn the operator never
to stand in the operating zone in front of the harvester or in
the sawing line of the chain saw when felling trees or when
cutting logs.

the trajectory of

The Commission considers that it can reasonably be expected
that, despite these instructions and warnings, the operator may
leave the safe driving zone and stand in an unsafe position in
order to gain a better view of the cutting means during felling
and cutting operations or of
the machine
during travel. In this respect, the Commission notes that an
advertising brochure for
forestry harvester,
communicated by the Finnish authorities, includes three photo-
graphs of the machine in use showing the operator standing
close to the machine outside the safe driving zone indicated in
the instructions. The Commission observes that the HARVERI
forestry harvester is not designed and constructed to prevent
such abnormal use, as required by Section 1.1.2(c) of Annex I,
since the remote controls can be used to operate the machine
from any position around the machine.

the HARVERI

The Commission recalls that, according to preliminary observa-
tion 2 to Annex I, taking into account the state of the art, it
may not be possible to meet the objectives set by the essential
health and safety requirements laid down in the Directive. In
this case, the machinery must as far as possible be designed and
constructed with the purpose of approaching those objectives.

The Commission notes that the harmonised standard applicable
to forestry harvesters, EN 14861:2004, requires such machines
to be fitted with a cab, a falling object protective structure, a
roll-over protective structure and an operator protective struc-
ture to protect the operator against risks due to tipping or
rolling over and risks due to falling or ejected objects. While
this standard was adopted after the HARVERI forestry harvester
was first designed and placed on the market, while its applica-
tion remains voluntary and while it does not include specifica-
tions for remote controlled machines, the Commission considers
that it gives an indication of the state of the art to be taken into
account by manufacturers of forestry harvesters and that alter-
native solutions for complying with the essential health and
safety requirements of Annex I should provide a level of protec-
tion at least equivalent to that set by the relevant harmonised
standard.

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The Commission further observes that, even if the technical
means to prevent use of the remote controls from unsafe posi-
tions were not available when the HARVERI forestry harvester
was first designed and placed on the market, the manufacturer
must take developments in the state of the art into account for
the machinery he subsequently places on the market, in order
to approach the objectives stated in the essential health and
safety requirements.

5. The Commission's opinion

In light of the documentation available and the comments of
the
the parties concerned,
Finnish authorities have established the non-conformity of
HARVERI forestry harvester with the essential health and safety
requirements 1.3.3 and 3.2.1,
in conjunction with the preli-
minary observation 2 and the essential health and safety require-

the Commission considers that

ment 1.1.2 of Annex I to Directive 98/37/EC, and that these
non-conformities give rise to a risk of serious or fatal injury to
operators.

Consequently, having followed the required procedure,
the
Commission is of the opinion that the measure taken by the
Finnish authorities is justified.

Done at Brussels, 27 May 2008.

For the Commission

Günter VERHEUGEN

Vice-President