COMMISSION OPINION

of 11 February 2011

in application of Article 7 of European Parliament and Council Directive 98/37/EC as regards a prohibition measure adopted by the Dutch authorities in respect of an electric lawnmower bearing the trademark Intratuin, type 07426 MD-2009-156

(Text with EEA relevance)

2011/C 45/01

1.   The notification by the Dutch authorities

Article 2(1) of Directive 98/37/EC of the European Parliament and of the Council (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 3 September 2009, the Dutch authorities notified to the European Commission a prohibition measure concerning the placing on the market of an electric lawnmower bearing the trademark Intratuin, type 07426. The machinery was manufactured by YAT Electrical Appliance Co., China and placed on the EU market by Intratuin Trade & Logistics, PO Box 228, 3440 AE Woerden, the Netherlands.

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 Dutch authorities

The measure taken by the Dutch authorities was founded on the failure of the electric lawnmower 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 60335-2-77:2000 — Household and similar electrical appliances — Safety — Part 2-77: Particular requirements for pedestrian controlled mains-operated lawnmowers, which is referred to in the TÜV Rheinland ‘GS’ certificate:

3.   The Commission’s opinion

On 30 July 2010, the Commission wrote to Intratuin who had placed the electric lawnmower Intratuin type 07426 on the EU market, inviting them to communicate their observations regarding the measure taken by the Dutch authorities.

On 30 July 2010, the Commission also wrote to TÜV Rheinland who had issued conformity certificates for the electric lawnmower type YT5124AB which were claimed to be equivalent to the electric lawnmower type 07426 subject to the Dutch measure.

In their reply dated 12 August 2010, TÜV Rheinland confirmed that they had issued the certificates No S 50121261 and AM 50121263 0001 for the electric lawnmower type YT5124AB. They stated that the sample tested by them did not present the non-conformities indentified by the Dutch authorities. They further stated that they had no knowledge of the electric lawnmower of the type Intratuin 07426 and could not confirm whether the two references YT5124AB and 07426 referred to the same product.

To date no reply has been received from Intratuin.

The Commission observes that neither Intratuin nor TÜV Rheinland have contested the measure taken by the Dutch authorities. The sales contract between YAT and Intratuin indicates that the electric lawnmowers sold to Intratuin were identified under the reference YT5124AB which is the reference covered by the certificates No S 50121261 and AM 50121263 0001 issued by TÜV Rheinland.

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

(1)  OJ L 207, 23.7.1998, p. 1.