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 electric planer bearing the trademark BRISTOOL ENGLAND MD-2007-136

(Text with EEA relevance)

(2008/C 307/01)

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 planer bearing the trademark BRISTOOL ENGLAND, of the type BT/PL 822-902. The manufacturer of the machinery is Jiangsu Jinding Electric Tools Group Co. Ltd, Huangli Town Changzhou, Jiangsu 213151 China, and the machinery is distributed by TESCO-GLOBAL Inc., H-2040 Budaörs, Kinizsi út 1-3.

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

Pursuant to Article 7(2) of the Directive, the Commission is required, after consulting the parties concerned, to declare whether it finds such a measure justified or not. If the measure is found justified, the Commission shall inform the Member States so that they can take all appropriate measures with respect to the machinery concerned, in accordance with their obligations under Article 2(1).

2.   The reasons given by the Hungarian authorities

The measure taken by the Hungarian authorities was founded on the failure of the electric planer to comply with the following essential health and safety requirements of Annex I to Directive 98/37/EC (with reference to the specifications of the harmonised European standard EN 60745-1:2003 Hand-held motor-operated electric tools — Safety — Part 1: General requirements and EN 60745-2-14 Hand-held motor-operated electric tools — Safety — Part 2-14: Particular requirements for planers).

1.2.2.   Control devices

The technical elements to avoid contacts with rotating parts were not supplied with the machinery, nor was the protection against accidental operation. Furthermore, the switch could be locked on when the machinery was operating.

1.5.1.   Electricity supply

Insufficient electric strength of reinforced insulation: flashover occurred between the accessible metal parts and live parts at a voltage level below the prescribed threshold, thus posing the risk of electric shock.

1.5.6.   Fire

During testing, the machinery caught fire, emitted smoke and flame then stopped.

1.7.3.   Marking

The name and address of the manufacturer were not indicated on the machinery and the year of manufacture was also missing.

1.7.4.   Instructions

The instructions for use did not contain certain information required for the safe operation of the machinery.

3.   The Commission's opinion

On 15 November 2007, the Commission wrote to TESCO-GLOBAL Inc. who signed the EC Declaration of Conformity, inviting him to communicate his observations regarding the measure taken by the Hungarian authorities.

On 15 November 2007, the Commission also wrote to TÜV Rheinland, Cologne who had issued a conformity certificate for an electric planer type DB-82X2B that was claimed to be equivalent to the electric planer type BT/PL 822-902 subject to the Hungarian measure.

On 3 December 2007, TÜV Rheinland confirmed that they had issued the certificate for the electric planer type DB-82X2B and stated that the certificate was only valid until March 2007. They could not confirm that the electric planer type BRISTOOL ENGLAND BT/PL 822-902 was equivalent to the electric planer type DB-82X2B and stated that they had not tested or certified the type BT/PL 822-902.

On 11 December 2007, TESCO GLOBAL Inc. replied that they did not contest the measure taken by the Hungarian authorities and had destroyed the stock of the electric planers in question.

In light of the documentation available and the comments of the parties concerned, the Commission considers that Hungarian authorities have demonstrated that the machinery subject to the restrictive measure fails to comply with the essential health and safety requirements referred to above. These non-conformities give rise to serious risks for persons using the machinery in question.

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