1) Description Issue

a) Machinery importation to Finland from France (1995).

b) Council Directive (EC) 98/37, on the approximation of the laws of the Member States
relating to machinery (22 June 1998 entering into force after 18 July 1998).

c) Injury of employee while on duty (1998).

d) Helsinki District Court sentences managing director for infringement of the national
provisions and ordered him to pay the victim compensation.

e) The Finish court of Appeal refers questions to the court (ECJ) for a preliminary ruling.

f) The defendant should rely on Council Directive (EC) 98/37 relating to machinery and
prove that the machinery complied with the standards referred to the Directive

g) The Finish state must follow the EC Directive and reform its national law in order to
conform to the EC law within the time limit set by the Directive.

2) Problem Identification

a) The Finnish company imported hydraulic brake machinery in 1995 when the CE marking
existed according to Council Decision 93/465/EEC of 22 July 1993, however, the Council
Directive (EC) 98/37 was not in force. Council Directive (EC) 98/37 is entering into force
within a certain period of time, according to Article 15

This Directive shall enter into force on the 20th day following that of its
publication in the Official Journal of the European Communities.
According to Article 16 the Directive issued on 22 June 1998 and addresses to all Member
States. Based on the Council Directive (EC) 98/37 the Finnish company must comply with EC
law and follow maintenance provisions described in paragraph 1.6, 1.6.1 and 1.6.2 of the
Directive. Therefore the managing director is liable in according to his duties in order to conform
to EC law provisions. However, given that we are not given the actual date of the injury is not
clear if the employee injured before the Directive entered into force or afterwards. Moreover, the
managing director may claim that the machinery bears the CE marking therefore conforms to the
latest EC law provisions. Furthermore, he can claim that the Finnish state did not changed its
national law or did not established a body in order to control and certify that all machines
comply with EC law and Member State has taken into consideration the minimum criteria that
should be taken into account for the notification bodies as stated in Annex VII of the Directive.

b) The managing director among others must supervise that the working place and the conditions
fulfil the minimum standards by complying with national and European law. Moreover, must
certify that all employees that interfere with machinery as described in Council Directive (EC)
98/37 must follow the manufacturer handbook on how to operate and repair the machinery.
Finally, must always ensure that health and safety measures are followed by employees. Last but
not least must ensure that the machinery has been certified by EC and national bodies and brings
the EC marking.

3. What limits does Community law lay down for the obligations which might be imposed in
national law on the importer of a machine bearing the CE marking in relation to the
characteristics of the machine which concern safety before the onward sale of the machine and
afterwards; What kind of protection has generally the consumer in case of a defective product?
What are the rights of a consumer in case of defective products (when the consumer suffers
damages)? What are the right of an employee (as stated in our case), who suffered injuries?

A)

According to Council Decision 93/465/EEC the CE marking symbolizes the conformity

of a product to the Community requirements incumbent on the manufacturer of the product. It
indicates that the product conforms to all the Community provisions providing for its affixing.
Member States may not restrict the placing on the market and entry into service of products
bearing the CE marking, unless there is supporting evidence of the product’s non-conformity.
The marking should be affixed prior to the product being placed on the European market and
entering.

Furthermore, according to Decision No 768/2008/EC of the European Parliament and of the

Council of 9 July 2008 on a common framework for the marketing of products, and repealing
Council Decision 93/465/EEC the obligations of manufacturers, importers and distributors are
presented below.

Obligations of manufacturers, importers and distributors

In order to be placed on the market, a product must comply with certain essential requirements.
The manufacturer must ensure that his products comply with the applicable requirements by
carrying out or commissioning a product conformity assessment procedure. If the product
complies with the essential requirements, the manufacturer affixes the CE marking on the
product and draws up an EC declaration of conformity. The manufacturer indicates his name,
registered trade name or registered trade mark, as well as his address on the product. They shall
ensure that series production remains in conformity. The product must be accompanied by
instructions and safety information in a language which can be easily understood. In the case
where an external conformity assessment body intervenes, the manufacturer shall affix the body's
identification number. The importer and the distributor must ensure that the manufacturer has
fulfilled his obligations, i.e. check that the product has a conformity marking and that the
required documents have been supplied.

Manufacturers (or their authorized representative), distributors and importers must provide the
competent authorities with all necessary information on the product concerned in order to ensure
product traceability.

Product conformity

This Decision sets a clearer framework for conformity assessment. It establishes a number of
conformity assessment procedures (specified in the Annex), from which the legislator can choose
the most appropriate. Furthermore, it lays down the rules and conditions for affixing the "CE"
marking, which is subject to the general principles defined by Regulation No 765/2008. Member
States shall ensure correct application of the regime governing the "CE" marking and provide
sanctions for infringements.

B)

In case of defective products consumers are protected from EC law as stated in Directive
85/374/EEC concerning liability for defective products. As stated in the Directive the injured
person has the burden of proof and must prove the actual damage, the defect in the product, the
causal relationship between damage and defect. Furthermore, the Directive provides for liability
without fault, it is not necessary to prove the negligence or fault of the producer or importer.

In addition lack of the safety which the general public is entitled to expect determines the
defectiveness of a product. Factors to be taken into account include the presentation of the
product; the use to which it could reasonably be put; the time when the product was put into
circulation. The fact that a better product is subsequently put into circulation cannot be taken into
consideration in determining the defectiveness of the product in question. The same Directive
applies to consumers and employees that suffered an injury of defective products. According to
the Directive, Damage covered means any damage caused by death or by personal injuries,
any damage to an item of property intended for private use or consumption other than the
defective product, with a lower threshold of 500 euros. The Directive does not in any way restrict
compensation for non-material damage under national legislation. However, the Directive does
not apply to injury or damage arising from nuclear accidents covered by international
conventions ratified by the Member States. However, according to the Finish Penal Code that the