A.G.M.-COS.MET Srl v Suomen valtio and Tarmo Lehtinen.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Makarczyk
• ECLI: ECLI:EU:C:2005:693
• Docket Number: C-470/03
• Date: 17 November 2005
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 17 November 2005 ¹(1)

Case C-470/03

A.G.M.-COS.MET Srl

v

Suomen valtio

and

Tarmo Lehtinen

(Reference for a preliminary ruling from the Tampereen käräjäoikeus (Finland))

(Directive 98/37/EC on the approximation of the laws of the Member States relating to machinery – Machinery bearing the CE marking but not complying with a harmonised standard – Article 28 EC – Measures having equivalent effect – Public warnings by a State official against vehicle lifts imported from another Member State – Whether acts of an official attributable to the State – Right of officials to freedom of expression – Proportionality – State liability – Liability of State officials)

I – Introduction

1. The Tampereen käräjäoikeus (Tampere District Court, Finland) has referred a factually complex case to the Court, which in the context of interpreting a directive relating to operational safety of machinery raises questions concerning principally the liability of a State for acts of its officials, restrictions on free movement of goods constituted by expressions of opinion, and finally State liability.

2. These questions arise in the context of a dispute between the Italian undertaking A.G.M.-COS.MET Srl (‘AGM’) which manufactures vehicle lifts and the Finnish State and a Mr Lehtinen, one of its officials. AGM seeks damages from the Finnish State and Mr Lehtinen for loss of turnover that AGM alleges was caused by public statements by Mr Lehtinen describing AGM’s vehicle lifts as non-compliant and dangerous. The Finnish Government replies that Mr Lehtinen acted deliberately contrary to his ministry’s official position and that the ministry made this clear to the public. Mr Lehtinen argues inter alia that his statements were covered by his right to freedom of expression.

3. Against this background the Tampereen käräjäoikeus has referred a series of detailed questions to the Court, which may be divided into three groups. First, the national court asks the Court to interpret the directive on operational safety of machinery in order to determine whether the vehicle lifts in question complied with its provisions. Second, it asks whether Mr Lehtinen’s public statements may be regarded as restrictions on free movement of goods and as a breach of the duty of cooperation in good faith with the Community attributable to the Member State and, if so, to what extent they may be justified by freedom of expression and the aim of protecting health. Third, if Articles 28 EC and 30 EC or Article 10 EC has been infringed, the Tampereen käräjäoikeus asks whether the requirements for a claim for State liability under Community law are satisfied, whether Community law also requires liability to be imposed on the official whose acts are involved, and if so to what extent the conditions of such claims require Finnish law to be interpreted in conformity with Community law.

II – Legal framework

4. The legal framework for the case consists of Articles 10 EC, 28 EC and 30 EC, as well as Directive 98/37/EC and harmonised standard EN 1493: 1998.

1. Directive 98/37

5. For the purposes of removing obstacles to trade created by national health and safety provisions and of preventing risks posed by machinery, the Community enacted Directive 98/37/EC (‘the Directive’). It lays down the imperative and essential health and safety requirements for machinery and safety components, and lays down a procedure for assessing and declaring conformity with these requirements. Conformity is indicated by the CE marking. (2)

6. Article 2(1) of the Directive provides that the Member States

‘… shall take all appropriate measures to ensure that machinery … covered by this Directive may be placed on the market and put into service only if [it does] not endanger the health or safety of persons … when … used for [its] intended purpose.’

7. Article 2(2) of the Directive provides that the Directive shall not affect

‘… Member States’ entitlement to lay down, in due observance of the Treaty, such requirements as they may deem necessary to ensure that persons and in particular workers are protected when using the machinery … in question, provided that this does not mean that the machinery … [is] modified in a way not specified in the Directive.’

8. Article 3 of the Directive provides:

‘Machinery … covered by this Directive shall satisfy the essential health and safety requirements set out in Annex I.’

9. Article 4(1) of the Directive provides that the Member States

‘… shall not prohibit, restrict or impede the placing on the market and putting into service in their territory of machinery … which compl[ies] with this Directive.’

10. Article 5(1) provides that the Member States

‘… shall regard … as conforming to all the provisions of this Directive, including the procedures for checking the conformity provided for in Chapter II … machinery bearing the CE marking and accompanied by the EC declaration of conformity referred to in Annex II, point A …’.

11. However, Article 7(1) of the Directive provides:

‘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 … 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.

[A Member State] shall immediately inform the Commission of any such measure, indicating the reason for its decision and, in particular, whether non-conformity is due to:

(a) failure to satisfy the essential requirements referred to in Article 3;

(b) incorrect application of the standards referred to in Article 5(2);

(c) shortcomings in the standards themselves referred to in Article 5(2).’

12. Articles 8 and 9 of the Directive lay down detailed requirements for the procedure for assessing whether machinery complies with the Directive’s safety requirements, and Article 10 lays down requirements for the conformity marking consisting of the two letters ‘CE’.

13. Preliminary Observation 1 of Annex I to the Directive states that ‘[t]he obligations laid down by the essential health and safety requirements apply only when the corresponding hazard exists for the machinery in question when it is used under the conditions foreseen by the manufacturer.’ However, ‘requirements 1.1.2 … and 1.7.4 apply to all machinery covered by this Directive.’

14. Requirement 1.1.2 (‘Principles of safety integration’) provides, in extract, as follows:

‘(a) Machinery must be so constructed that it is fitted for its function, and can be adjusted and maintained without putting persons at risk when these operations are carried out under the conditions foreseen by the manufacturer.

The aim of measures taken must be to eliminate any risk of accident …, even where risks of accident arise from foreseeable abnormal situations.

(b) In selecting the most appropriate methods, the manufacturer must apply the following principles, in the order given:

– eliminate or reduce risks as far as possible (inherently safe machinery design and construction),

– take the necessary protection measures in relation to risks that cannot be eliminated,

– inform users of the residual risks due to any shortcomings of the protection measures adopted, …

(c) When designing and constructing machinery, and when drafting the instructions, the manufacturer must envisage not only the normal use of the machinery but also uses which could reasonably be expected.

The machinery must be designed to prevent abnormal use if such use would engender a risk. In other cases the instructions must draw the user’s attention to ways – which experience has shown might occur – in which the machinery should not be used.

…’

15. As regards lifting operations undertaken under the conditions provided for by the manufacturer, requirement 4.1.2.3 (‘Mechanical strength’) of Annex I provides:

‘Machinery … must be capable of withstanding the stresses to which [it is] subjected … in … use, under the … operating conditions provided for by the manufacturer, and in all relevant configurations …

Machinery must be designed and constructed to undergo, without failure, the dynamic tests carried out using the maximum working load …

The dynamic tests must be performed … under normal conditions of use. As a general rule, the tests will be performed at the nominal speeds laid down by the manufacturer. Should the control circuit of the machinery allow for a number of simultaneous movements (for example, rotation and displacement of the load), the tests must be carried out under the least favourable conditions …’

16. Finally, it should be mentioned that Section A (‘Machinery’) of Annex IV to the Directive includes the entry ‘15. Vehicles servicing lifts’, indicating that such machines fall within the scope of the Directive.

2. Harmonised standard EN 1493: 1998

17. Recital 17 in the preamble to the Directive states:

‘… this Directive defines only the essential health and safety requirements of general application, supplemented by a number of more specific requirements for certain categories of machinery; … in order to help manufacturers to prove conformity to these essential requirements and in order to allow inspection for conformity to the essential requirements, it is desirable to have standards harmonised at European level for the prevention of risks arising out of the design and construction of machinery; … these standards harmonised at European level are drawn up by private-law bodies and must retain their non-binding status …’.

18. Recital 20 in the preamble to the Directive continues:

‘… as is currently the practice in Member States, manufacturers should retain the responsibility for certifying the conformity of their machinery to the relevant essential requirements; … conformity to...