Brunswick Bowling Products LLC v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2021:539
• Docket Number: T-152/19
• Date: 08 September 2021
• Celex Number: 62019TJ0152
• Court: General Court (European Union)

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)

In Case T‑152/19,

Brunswick Bowling Products LLC, formerly Brunswick Bowling & Billiards Corporation, established in Muskegon, Michigan (United States), represented by R. Martens and V. Ostrovskis, lawyers,

applicant,

v

European Commission, represented by M. Huttunen and P. Ondrůšek, acting as Agents,

defendant,

supported by

Kingdom of Sweden, represented by H. Eklinder, R. Eriksson, C. Meyer-Seitz, A. Runeskjöld, M. Salborn Hodgson, H. Shev, J. Lundberg and O. Simonsson, acting as Agents,

intervener,

APPLICATION under Article 263 TFEU seeking annulment of Commission Implementing Decision (EU) 2018/1960 of 10 December 2018 on a safeguard measure taken by Sweden pursuant to Directive 2006/42/EC of the European Parliament and of the Council, to prohibit the placing on the market of a type of pinsetter machine and a supplementary kit to be used together with that type of pinsetter machine, manufactured by Brunswick Bowling & Billiards, and to withdraw those machines already placed on the market (OJ 2018 L 315, p. 29),

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović, President, F. Schalin and P. Škvařilová‑Pelzl (Rapporteur), Judges,

Registrar: C. Kristensen, Head of Unit,

having regard to the written part of the procedure and further to the hearing on 6 October 2020,

having regard to the order of 11 March 2021 reopening the oral part of the procedure and the parties’ replies to the written questions put by the Court,

gives the following

Judgment (1)

…

Procedure and forms of order sought

12 By application lodged at the Court Registry on 8 March 2019, the applicant brought the present action.

13 By document lodged at the Court Registry on 20 June 2019, the Kingdom of Sweden sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. The Commission and the applicant expressed their consent to that application for leave to intervene on 9 and 17 July 2019 respectively. By decision of 25 July 2019 of the President of the First Chamber of the General Court, the Kingdom of Sweden’s application for leave to intervene was granted.

14 On 24 June 2019, the Commission lodged its defence at the Court Registry.

15 The reply and the rejoinder were lodged at the Court Registry on 21 August and 22 October 2019, respectively.

16 On 9 October 2019, the Kingdom of Sweden lodged its statement in intervention at the Court Registry.

17 The Commission and the applicant lodged their observations on the Kingdom of Sweden’s statement in intervention at the Court Registry on 5 and 7 November 2019, respectively.

18 By decision of the President of the General Court of 16 October 2019, the present case was assigned to a new Judge-Rapporteur, sitting in the Second Chamber.

19 In application of Article 106(2) of the Rules of Procedure of the General Court, the applicant submitted, on 3 December 2019, a reasoned request for a hearing.

20 By decision of 16 July 2020, the Court adopted a measure of organisation of procedure, on the basis of Articles 88 to 90 of the Rules of Procedure. The Commission replied to that measure of organisation within the prescribed time limit. The other parties did not respond to the invitation, which had been sent to them, to submit their observations on the Commission’s reply.

21 At the hearing of 6 October 2020, the parties presented oral arguments and answered the questions put to them by the Court.

22 By order of 11 March 2021, the Court decided to reopen the oral part of the procedure and, by decision of the same date, adopted a measure of organisation of procedure, on the basis of Articles 88 to 90 of the Rules of Procedure, asking the applicant to clarify its legal relationship with Brunswick Bowling & Billiards, referred to in recital 1 of the contested decision as the manufacturer of the products at issue.

23 In its reply of 26 March 2021, the applicant submitted explanations and evidence showing that the contested decision referred to the applicant using its former company name. By letter of 16 April 2021, the Commission stated that it had no observations to make regarding the applicant’s reply. The Kingdom of Sweden did not lodge any observations within the prescribed period.

24 The applicant claims that the Court should:

– annul the contested decision;

– order the Commission to pay the costs.

25 The Commission, supported by the Kingdom of Sweden, contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

…

Substance

The first plea in law, alleging infringement of the procedural rules contained in Article 11 of Directive 2006/42 and Article 18(5) of Regulation No 765/2008 and of the principle of proportionality as stipulated in Article 18(4) of that regulation

…

– The first part, alleging infringement of the procedural rules laid down in Article 11 of Directive 2006/42 and Article 18(5) of Regulation No 765/2008

…

42 Directive 2006/42 thus establishes a system of surveillance and regulation of the internal market, under which it is primarily the role of the competent national authorities to determine whether machinery is liable to compromise the health and safety of persons and, in the affirmative, to take the requisite withdrawal or prohibition measures. The safeguard clause provided for that purpose by Article 11 of Directive 2006/42 must itself be viewed in the light of Article 114(10) TFEU, which authorises Member States to take such measures for one or more of the non-economic reasons referred to in Article 36 TFEU, which include the protection of health and life of humans. It is clear from the case-law that such an exercise may entail complex technical and scientific assessments. The Commission, for its part, is to verify whether the measures adopted by the Member States under Directive 2006/42 are justified in law and in fact (see judgment of 3 May 2018, Grizzly Tools v Commission, T‑168/16, not published, EU:T:2018:246, paragraph 52 and the case-law cited).

43 In that context, the General Court has previously held that, first, in order to be able to effectively pursue the objective assigned to it, bearing in mind the complex technical assessments which it must undertake, the Commission must be recognised as enjoying a broad discretion as regards the assessment of the facts. Secondly, a judicial review of the merits of the legal grounds leading to the Commission’s finding that the national measures at issue were justified must be a complete review, since it concerns a question of law (see, to that effect, judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraphs 48 and 80 and the case-law cited).

…

54 Thus, in accordance with the case-law, the contested decision requires each of the Member States other than the Kingdom of Sweden to take appropriate measures in relation to placing the products at issue on their respective markets, or to retaining them on the market, and, in so doing, guarantees the proper and uniform application of Directive 2006/42, in the light of the measures adopted by the Swedish authorities, after they have been found to be justified by the Commission. The direct consequence of the contested decision is to trigger national procedures that have an impact on the right that the applicant had, until then, enjoyed within the whole of the European Union, to market machinery that benefited from the presumption of conformity under Article 7 of that directive, since it bore the ‘CE’ marking and was accompanied by the EC declaration of conformity (see, to that effect, judgment of 15 July 2015, CSF v Commission, T‑337/13, EU:T:2015:502, paragraph 28).

…

– The second part, alleging infringement of the principle of proportionality

…

65 In the first place, as regards the applicant’s arguments alleging infringement of the principle of proportionality in so far as the Commission did not take account of its upgrade plan presented at the Gustavsberg bowling centre in 2016 or of the positive observations of the independent study in that regard, it must be noted, as submitted by the Commission, that the contested decision concerns the question as to whether or not the safeguard measures taken by the SWEA in 2013 were justified.

66 In that regard, it should be noted that Article 95(10) EC...