COMMISSION OPINION

of 28 January 2011

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 Polish authorities in respect of an electric impact drill bearing the trademark VERTO MD-2009-153

(Text with EEA relevance)

2011/C 29/01

1.   The notification by the Polish authorities

Article 2(1) of Directive 98/37/EC (1) on the approximation of the laws of the Member States relating to machinery (that was applicable until 29 December 2009) 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.

On 26 February 2009, the Polish authorities notified to the European Commission a prohibition measure concerning the placing on the market of a hand-held portable electric impact drill bearing the trademark VERTO, of the type 50G502. The machinery was manufactured by Zhejiang Wuyi Gongli Electric Machine Co. Ltd, F. H. Shan Ind. Zone Donggan, 321201 Wuyi Zhejiang Prov., China, and placed on the market by Topex Sp. z.o.o Sp. k., ul. Pograniczna 2/4, 02-285 Warsaw, Poland.

The file transmitted to the European Commission included an EC Declaration of conformity drawn up by Topex Sp. z.o.o dated 22 October 2007.

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 Polish authorities

The measure taken by the Polish authorities was founded on the failure of the impact drill 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 standards EN 60745-1:2003 — Hand-held motor-operated electric tools — Safety — Part 1: General requirements, and EN 60745-2-1:2003 — Hand-held motor-operated electric tools — Safety — Part 2-1: Particular requirements for drills and impact drills, which were cited in the EC Declaration of conformity:

1.5.1 —   Electricity supply

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

1.7.3 —   Marking

The drill was not marked properly: the information plate came off which might lead to lack of information essential to the safe use of the machinery.

3.   The Commission’s opinion

On 28 July 2010, the Commission wrote to Topex Sp. z.o.o. who signed the EC Declaration of Conformity, inviting them to communicate their observations regarding the measure taken by the Polish authorities. To date, no response has been received.

In light of the documentation available, the Commission considers that the Polish 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 Polish authorities is justified.

(1)  OJ L 207, 23.7.1998, p. 1.