Case T‑152/19
(publication in extract form)
Brunswick Bowling Products LLC
v
European Commission
Judgment of the General Court (Second Chamber), 8 September 2021
(Protection of the health and safety of consumers and workers – Directive 2006/42/EC – Safeguard clause – National measure of withdrawal from the market and prohibition of placing on the market of a pinsetter machine and a supplementary kit – Essential health and safety requirements – Commission decision declaring the measure justified – Equal treatment)
1. Approximation of laws – Machines – Directive 2006/42 – Marketing – Member State using the safeguard clause in the event of a health and safety risk – Verification by the Commission – Discretion – Judicial review – Limits
(Art 36 TFEU and Art. 114(10) TFEU; European Parliament and Council Directive 2006/42, Art. 11)
(see paragraphs 41-43)
2. Approximation of laws – Machines – Directive 2006/42 – Marketing – Member State using the safeguard clause in the event of a health and safety risk – Approval by the Commission – Obligation on the other Member States to take appropriate measures relating to the placing or retaining of the products at issue on the market – Scope – Obligation on the Commission to provide the other Member States with instructions regarding the implementation of its decision approving the safeguard measures – None
(European Parliament and Council Directive 2006/42, Arts 9, 11, 14(7) and 19)
(see paragraphs 50-55, 82-86, 101-103)
3. Approximation of laws – Machines – Directive 2006/42 – Marketing – Member State using the safeguard clause in the event of a health and safety risk – Commission examining whether justified – Elements to be taken into consideration
(Art. 36 TFEU; European Parliament and Council Directive 2006/42, Art. 11(1) and (2); Commission Decision 2018/1960)
(see paragraphs 66-69)
4. Approximation of laws – Machines – Directive 2006/42 – Marketing – Member State using the safeguard clause in the event of a health and safety risk – Approval by the Commission – Safeguard measures relating to the prohibition of placing on the market and the withdrawal from the market of the products at issue – Weighing the seriousness of the risks and the cost of withdrawing those products – Financial burden on the manufacturer – Breach of the principle of proportionality – None
(European Parliament and Council Directive 2006/42, Art. 11; Commission Decision 2018/1960)
(see paragraphs 72-79, 81)
5. Approximation of laws – Machines – Directive 2006/42 – Placing on the market – Presumption of conformity of machines bearing the CE marking and manufactured in accordance with a harmonised standard – Incorrect application of the standard by the manufacturer – Consequences – Option of Member States to use the safeguard clause – Obligation on the manufacturer to demonstrate the conformity of machinery by other means
(European Parliament and Council Directive 2006/42, recital 14 and Arts 2, 7(1) and (2) and 11, and Annexes I and VII)
(see paragraphs 108, 109, 114, 116, 117)
6. Approximation of laws – Machines – Directive 2006/42 – Marketing – Member State using the safeguard clause in the event of a health and safety risk – Approval by the Commission – Obligation to provide an analysis of the application of the principle of the state of the art – None
(European Parliament and Council Directive 2006/42, Annex I)
(see paragraphs 115, 119-121)
Résumé
The applicant, Brunswick Bowling Products LLC, is an undertaking which is active in the market as an operator of full-service bowling and recreation centres. It produces, inter alia, pinsetter machines and supplementary kits of parts, which are placed on the market in 26 Member States of the European Union.
On 30 August 2013, the Swedish authorities issued a decision by which they adopted safeguard measures under Directive 2006/42, (1) seeking, first, to prohibit the placing on the market of the products at issue and, secondly, subject to certain reservations, to withdraw them from the market. The reasons relied on to justify the safeguard measures were the failure of the products at issue to satisfy certain essential health and safety requirements (‘EHSRs’) (2) and the incorrect application of certain harmonised standards. By Implementing Decision (EU) 2018/1960, (3) the European Commission considered that the measures taken by the Kingdom of Sweden were justified. (4)
The General Court dismisses the action brought by the applicant against the contested decision and supplements the existing case-law on the application of the principle of proportionality, in the context of safeguard measures outlined in Directive 2006/42. Furthermore, it clarifies the consequences of a manufacturer choosing to rely on the application of a harmonised standard.
Findings of the Court
First, the Court finds that the Commission did not infringe the principle of proportionality in finding that the safeguard measures at issue were justified.
It states, first of all, that it is for the Member States to implement Directive 2006/42 correctly, by taking safeguard measures where appropriate. The Commission is solely competent to verify whether or not those safeguard measures are justified and proportionate and, consequently, whether those measures may be definitively maintained. That review is based only on circumstances which existed at the time of the adoption of the national decision introducing safeguard measures, and not on subsequent circumstances, such as improvements to the products at issue.
Next, the Court notes that the objective of the protection of the health and life of humans ranks foremost among the assets or interests protected by Article 36 TFEU. In the present case, given that the infringements of the EHSRs found by the Commission constitute risks to human health and safety, the Commission was correct in concluding that the safeguard measures were justified. The Court also observes that, in the light of the principle of proportionality, the seriousness of the risks and the cost of withdrawing the products at issue were weighed up. Thus, the products to be sold subsequently were distinguished from the products at issue already established on the market and a number of alternative solutions were implemented concerning the withdrawal of those products.
The Court also finds that, in the present case, the risks posed by the products at issue to the health and safety of humans justify the need to prohibit the placing on the market and the withdrawal from the market of those products, notwithstanding the cost to the applicant. Therefore, the approach adopted by the Swedish authorities and the Commission is proportionate to the financial burden which the safeguard measures impose on the applicant.
Lastly, the Court points out that the contested decision is binding in its entirety on all the Member States. That decision requires that each of the Member States take appropriate measures relating to the placing or retaining of the products at issue on the market, which is an essential element of the safeguard clause procedure. Furthermore, following notification of the safeguard measures taken by the Swedish authorities, the Commission was under an obligation to act and to take a decision as to whether those measures were justified.
In the second place, the Court finds that the Commission did not infringe the procedural rules laid down in Annex I to Directive 2006/42.
First, it notes that, according to that directive, compliance with a harmonised standard, the references to which have been published in the Official Journal of the European Union, form the basis for a presumption that machinery complies with the EHSRs covered by that standard. However, while remaining free to choose the methods for assessing the conformity of their products with the EHSRs, the manufacturer is obliged to ensure such conformity and to demonstrate it in the technical file.
Secondly, the Court points out that Directive 2006/42 does not lay down any procedural rule requiring the provision, in a decision adopted in the context of the safeguard clause procedure, of an analysis of the application of the principle of the state of the art. Moreover, the omission of such an analysis does not in itself imply an infringement of that principle.
Thirdly, the General Court states that harmonised standards form part of EU law and that, even if they are not obligatory, the choice to apply them and to rely on them in the declaration of conformity requires that they be properly applied. In the event of incorrect application, the competent national authority is entitled to declare the non-compliance of the products at issue and to take measures under the safeguard clause procedure. In the present case, the applicant chose freely to apply that harmonised standard and, consequently, should have complied with it in its entirety. Thus, as a result of the failure to comply with that standard, the applicant should have presented another technical solution ensuring the same level of safety and should have shown that the products at issue complied with the respective EHSRs.