Commission opinion of 27 November 2008 in application of Article 7 of Directive 98/37/EC of the European Parliament and of the Council as regards a prohibition measure adopted by the Hungarian authorities in respect of an angle grinder bearing the trademark MANS FRIEND MD-2007-139 (Text with EEA relevance)
Date: 2008-11-27
Institutions: European Commission
Subjects: Hungary, application of EU law, joinery, product safety, quality label, technical regulations

29.11.2008

EN

Official Journal of the European Union

C 306/3

COMMISSION OPINION

of 27 November 2008

in application of Article 7 of Directive 98/37/EC of the European Parliament and of the Council as
regards a prohibition measure adopted by the Hungarian authorities in respect of an angle grinder
bearing the trademark MANS FRIEND MD-2007-139

(Text with EEA relevance)

(2008/C 306/02)

1. The notification by the Hungarian authorities

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

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

On 23 July 2007, the Hungarian authorities notified to the
European Commission a prohibition measure concerning the
placing on the market of a hand-held portable electric angle
grinder bearing the trademark MANS FRIEND, of
the type
MF 125-110. The machinery was manufactured by Jinhua
Max-power Tools Co., Ltd, Western Binhong Road 558,
section 2, Jinhua Industrial Area, Zhejing, China, and distributed
by Baumann Hungary Kft., H-1162 Budapest, János utca 118.

The file transmitted to the European Commission included the
following documents:

— Certificate No 05SHW0991-01 dated 10 May 2005 for an
angle grinder
type S1M-MP6-125 issued by Intertek
Deutschland GmbH granting the ‘GS’ mark for the angle
grinder,

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

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

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

Pursuant to Article 7(2) of the Directive, the Commission is
required, after consulting the parties concerned,
to declare
whether it finds such a measure justified or not. If the measure

inform the Member
is found justified, the Commission shall
States so that
they can take all appropriate measures with
respect to the machinery concerned, in accordance with their
obligations under Article 2(1).

2. The reasons given by the Hungarian authorities

The measure taken by the Hungarian authorities was founded
on the failure of the angle grinder to comply with the following
essential health and safety requirements of Annex I to Directive
98/37/EC (with reference to the specifications of the harmo-
nised European standard EN 50144-1:1998 Safety of hand-held
electric motor operated tools — Part 1: General requirements and
EN 50144-2-3:2002 Safety of hand-held electric motor operated
tools — Part 2-3: Particular
requirements for grinders, disk type
sanders and polishers, which are referred to in the manufacturer's
EC Declaration of Conformity).

1.5.1. Electricity supply

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

1.5.6. Risk of fire

During the thermal
emitted smoke then stopped.

test

the machinery caught

fire,

1.7.4. Instructions

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

1.7.3. Marking

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

3. The Commission's opinion

On 15 November 2007,
the Commission wrote to Jinhua
Max-power Tools Co. and Baumann Hungary Kft., who signed
the EC Declaration of Conformity, inviting them to communi-
cate their observations regarding the measure taken by the
Hungarian authorities.

On 15 November 2007, the Commission also wrote to Intertek
ETL SEMKO, Shanghai and Intertek Deutschland GmbH that
had issued conformity certificates for the angle grinder type
S1M-MP6-125 which was claimed to be equivalent to the angle
grinder type MF 125-110 subject to the Hungarian measure.

C 306/4

EN

Official Journal of the European Union

29.11.2008

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

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

In light of the documentation available and the comments of
the parties concerned,
the
Hungarian authorities have demonstrated that the machinery
subject to the restrictive measure fails to comply with the essen-
tial health and safety requirements referred to above. These

the Commission considers that

non-conformities give rise to serious risks for persons using the
machinery in question.

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

Done at Brussels, 27 November 2008.

For the Commission

Günter VERHEUGEN

Vice-President