Commission opinion

of 13 August 2009

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 Dimension MD-2008-146

(Text with EEA relevance)

2010/C 112/01

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 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 December 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 Dimension, of the type DM/AG230-160.

The machinery was claimed to be manufactured by Zheijang Yongkang Xing Pai Tool Co. Ltd. 56-1 W. Wangchun Road, Yongkang City, Zhejiang, 321300, CHINA, and distributed by Dimension Europe Kft., Budapest, ?jlak u. 21., 1173, HUNGARY.

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

- Certificate No AM 50019449 0001, report No 15002404 001 dated 9 September 2003 for an angle grinder type S1M-ZZ09-230A, issued by T?V Rheinland Product Safety GmbH certifying conformity with Directive 98/37/EC on machinery,

- Certificate No S 50019447 0001 dated 9 September 2003 for the same type of angle grinder S1M-ZZ09-230A, issued by T?V Rheinland Product Safety GmbH granting the "GS" mark for the angle grinder,

- a declaration by Zhejiang Yongkang Xing Pai Tool Co. Ltd., dated 30 May 2006, stating that the angle grinder type S1M-ZZ09-230A is equivalent to item DM/AG230-160 that is subject to the Hungarian measure,

- an EC Declaration of Conformity drawn up by Dimension Europe Kft., dated 30 August 2006 referring to Certificate No AM 50019449 0001.

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 angle grinder to comply with the following essential health and safety requirements of Annex I to Directive 98/37/EC (with reference to the specification of the harmonised European standard EN 50144-1:1998 Safety of hand-held electric motor operated tools — Part 1: General requirements and standard 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

During the mechanical strength test, the ventilation grids broke and the housing fell apart, thus live parts became accessible. The design of mains cable was lighter than required, therefore it can easily be damaged.

1.5.6 — Risk of fire

During the thermal test, the machinery caught fire, emitted smoke then stopped.

1.7.4 — Instructions

The majority of the general safety instructions was 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 22 September 2008, the Commission wrote to:

- Zhejiang Yongkang Xing Pai Tool Co. Ltd.,

- Dimension Europe Kft., which has signed the EC Declaration of conformity, and

- T?V Rheinland Product Safety GmbH that had issued conformity certificates for the angle grinder type S1M-ZZ09-230A which was claimed to be equivalent to the angle grinder type DM/AG230-160 subject to the Hungarian measure.

To date, no response has been received from Dimension Europe Kft.

In a reply dated 24 November 2008, T?V Rheinland confirmed that they had issued the Certificate No AM 50019449 0001, report No 15002404 001 dated 9 September 2003, for the angle grinder type S1M-ZZ09-230A. T?V Rheinland stated that they had no information regarding the angle grinder type "DM/AG230-160". T?V Rheinland had contacted Zhejiang Yongkang Xing Pai Tools who confirmed that they did not manufacture the angle grinder type DM/AG230-160 for Dimension Europe Kft., Hungary.

T?V Rheinland further attached a declaration dated 29 October 2008 and signed by Zhejiang TCH Industrial Co. Ltd. stating that they did not manufacture an angle grinder model DM/AG230-160 and that it was thus not equivalent to the angle grinder type S1M-ZZ09-230A.

There is thus no certainty as to the true origin of the machinery tested by the Hungarian authorities.

In light of the documentation available and the comments of the parties concerned, the Commission considers that the 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.

Done at Brussels, 13 August 2009.

For the Commission

Günter Verheugen

Vice-President

--------------------------------------------------