Interpretation of the Directive 1999/5/EC

1. Ambiguity in Annex III of the Directive

1. Issue

Annex III of the Directive obliges Manufacturers to include the number of the notified body, which prescribed radio test suites, in the marking of radio equipment. When however the harmonised standard contains such test suites, such is not the responsibility of the notified body.

In the latter case, it is however not possible for the manufacturer to introduce the notified body number in the marking, although the annex prescribes it.

2. Legal analysis

Article 12.1 2nd paragraph states that:

"Where the procedures identified in Annex III, IV or V are used, the marking shall be accompanied by the identification number of the notified body referred to in Article 11(1). Radio equipment shall in addition be accompanied by the equipment class identifier where such indentifier has been assigned. Any other marking may be affixed to the equipment provided that the visibility and legibility of the EC marking is not thereby reduced."

According Article 11.1 , notified bodies are designated by Member States "to carry out the relevant tasks related to the operation of this Directive".

Annex III of the Directive foresees that:

(...)For each type of apparatus, all essential radio test suites must be carried out by the manufacturer or on his behalf. The identification of the test suites that are considered to be essential is the responsibility of a notified body chosen by the manufacturer except where the test suites are defined in the harmonised standards. (...)

The manufacturer or his authorised representative established within the Community or the person responsible for placing the apparatus on the market must declare that these tests have been carried out and that the apparatus complies with the essential requirements and must affix the notified body's identification number during the manufacturing process.

From the previous it follows that, if the essential radio test suites are chosen from a harmonised standard, a notified body does not intervene in the conformity assessment process. In that case there is no notified body which excercises on of the relevant tasks foreseen in article 10 of the Directive. Therefore the obligation to affix the number of the notified body, even if this obligation is formulated in the Directive, does not apply. The affixing of the notified body number makes him responsible. Such a responsibility he can only exercise, when he played a role in the conformity assessment process.

As discussed in our meeting it would be logical to assume that when using the test suites of a harmonised standard, the manufacturer is not obliged to include a reference to a notified body.

3. Conclusion

When a harmonised standard contains the essential radio test suites a manufacturer, which chooses to use them does not need to affix a notified body number on the equipment.

2. Application of Article 6.4 to receivers and discussion on the scope of equipment to be notified

1. Issue

Article 6.4 prescribes that manufacturers have to notify [45 KB] their intention to place certain radio products on the market and subsequently wait 4 weeks before doing so. This is to enable surveillance authorities to be aware of radio equipment, which might cause interference on their territory where they operate in frequency bands, which are not harmonised throughout the Community. Receivers are also radio equipment but as they don't transmit cannot cause interference.

Obliging manufacturers to notify such equipment wouldn't serve a regulatory purpose under this Directive. Such notification would not be instrumental in providing national authorities information on products likely to cause interference. A notification requirement would be introduced for many receiver types, which currently can be placed on the market without any administrative procedure.

A further question to be clarified is the meaning of the term "Frequency bands whose use is not harmonised throughout the Community". This term isn't defined in the Directive or in international agreements. It however determines whether radio equipment needs to be notified.

2. Legal analysis

Article 1.4 of the Directive exempts the types of equipment, enumerated in Annex I . This applies notably to receive only radio equipment intended to be used solely for the reception of sound and TV broadcasting services.

Article 6.4 of the Directive states:

"In the case of radio equipment using frequency bands whose use is not harmonised throughout the Community, the manufacturer or his authorised representative established within the Community or the person responsible for placing the equipment on the market shall notify the national authority responsible in the relevant Member State for spectrum management of the intention to place such equipment on its national market. (...)".

Article 2.c of the directive provides for the following definition: «'radio equipment' means a product, or relevant component thereof, capable of communication by means of the emission and/or reception of radio waves utilising the spectrum allocated to terrestrial/space radiocommunication".

A literal interpretation of these provisions leads to the conclusion, that the notification obligation foreseen in article 6.4 applies not just to transmitters but also to those receivers, which are not explicitly excluded from the scope of the Directive.

It is however also true, that all provisions of Community legislation have to be interpreted in the context of the objectives it pursues. One of the objectives of Directive 1999/5/EC is to ensure that radio equipment shall be so constructed that it effectively uses the spectrum allocated to terrestrial/space radio communication and orbital resources so as to avoid harmful interference. ( Recital 22 , Article 3.2 , Article 9.5a ). It is clear, that receive-only equipment cannot create harmful interference and one can therefore question, whether the obligation to notify under article 6.4 applies also to receivers.

Such an analysis is only possible when it is necessary to interpret the text, i.e. when that is not sufficiently clear. Any analysis can however not lead to an interpretation, which directly contradicts the text. The Directive has defined the term "radio equipment". It is therefore not possible to interpret article 6.4 as only applicable to transmitters.

On the other hand the Directive does not define the term "frequency bands whose use is not harmonised throughout the Community". It therefore is possible and even desirable to look for a common interpretation of this term in the Committee. Such an interpretation could exempt certain classes of receivers from the obligation to notify under article 6.4.

3. Conclusion

The term "frequency bands whose use is not harmonised throughout the Community" is not defined in the Directive and a common understanding of it is required with the TCAM to arrive at a uniform application. In defining the term it is possible to exempt receivers from the notification obligation. The following definition was agreed by a majority of Member States in TCAM3:

Notification under Article 6 (4) of directive 99/5/EC is required for equipment covered by the following definition: Radio equipment which uses frequency bands whose use is not harmonised throughout the Community. This is considered to be all radio equipment except those:

• which do not transmit; or
• which can only transmit under the control of a network; or
• which use a frequency band which is allocated to the same radio interface in every Member State in the following way:

- there is a common frequency allocation; and

- within this allocation, the allotment and/or assignment of radio frequencies or radio frequency channels follows a common plan or arrangement; and

- the equipment satisfies common parameters (e.g. frequency, power, duty cycle, bandwidth, etc.).

Notification of radio equipment which uses frequency bands whose use is not harmonised throughout the Community should be made to relevant Member States, i.e. Member States upon whose market it is intended to place the equipment but where the equipment is not complying with the national frequency use.

3. Clarification of the relation of the R&TTE Directive with the EMC and LVD Directives

1. Issue

Questions were raised whether harmonised standards in the field of EMC and electrical safety should be published under the R&TTE Directive or whether they should remain to be mandated and published under the EMC and LVD Directives.

In addition the Directive apparently has the effect of modifying the provisions of the LVD. It seems to align the LVD with the new approach for equipment within its scope by stating that standards for electrical safety only give a presumption of conformity with the Directive once a reference to the standard is published in the Official Journal under this Directive.

As regards the EMC Directive, the R&TTE Directive repeals article 10.5 for radio equipment within its scope. There are classes of radio equipment, which are covered by the EMC Directive and are NOT covered by the R&TTE Directive (e.g. aeronautical equipment). It seems that Article 10.5 would therefore continue to apply for such classes of equipment and notified bodies would continue to function under the EMC Directive for e.g. aeronautical equipment.

2. Legal analysis

Article 18.1 of the Directive states that:

« Standards under Directive 73/23/EEC or 89/336/EEC whose references have been published in the Official Journal of the European Communities may be used as the basis for a presumption of conformity with the essential requirements referred to in Article 3(1)(a) and Article 3(1)(b). ».

Article 20.2 of the Directive indicates that this Directive is not a Directive in the sense of article 2.2 of Directive 89/336/EEC. This article however also indicates that the provisions of Directive 89/336/EEC don't apply to equipment within the scope of Directive 1999/5/EC, with a few exceptions.

Article 2.2 of Directive 89/336/EEC states that:

« Insofar as protection requirements specified in this Directive are harmonized, in the case of certain apparatus, by specific Directives, this Directive shall not apply or shall cease to apply with regard to such apparatus or protection requirements upon the entry into force of those specific Directives. ».

Article 10.5 of Directive 89/336/EEC states that:

« The conformity of apparatus designed for the transmission of radiocommunications, as defined in the International Telecommunication Union Convention, with the provisions of this Directive shall be certified in accordance with the procedure laid down in paragraph 1 once the manufacturer or his authorized representative established within the Community has obtained an EC type-examination certificate concerning this apparatus issued by one of the notified bodies referred to in paragraph 6 below. ».

From the above, the following conclusions can be drawn:

Directive 1999/5/EC does not repeal Directive 89/336/EEC, doesn't modify its regime but however reduces its field of application. In addition it disapplies in a selective manner the application of its provisions to equipment within the scope of 1999/5/EC.

Likewise, Directive 73/23/EEC is neither repealed nor modified by Directive 1999/5/EC. Its scope of application is reduced as regards certain of its provisions for equipment within the scope of Directive 1999/5/EC.

3. Conclusions

Harmonised Standards as foreseen by Directive 73/23/EEC and 89/336/EEC continue to be elaborated and published according to the procedures foreseen by those Directives. In particular the provisions of article 5 of Directive 73/23/EEC, following which "Standards shall be regarded as harmonized once they are drawn up by common Agreement between the bodies notified by the member states in accordance with the procedure laid down in article 11, and published under national procedures" continue to apply. However, for these standards to give a presumption of conformity to the essential requirements of the Directive of article 3.1.a of Directive 1999/5/EC, a reference needs to be published in the Official Journal ( Article 18.1 of Directive 1999/5/EC).

Where equipment within the scope of Directive 1999/5/EC is not within the scope of Directive 73/23/EEC, harmonised standards published under the latter don't apply. They therefore cannot be used to give a presumption of conformity with the essential requirements of article 3.1.a of Directive 1999/5/EC. In order for standards to give a presumption they need to be elaborated and published under Directive 1999/5/EC.

For equipment, which is not within the scope of Directive 1999/5/EC but is within the scope of Directive 89/336/EC, the provisions of article 10.5 continue to apply normally.

4. Interpretation of Article 6.3 for equipment whose use is harmonised

1. Issue

Article 6.3 of the Directive obliges manufacturers to inform users of any geographic limitations of usage of radio equipment, notably where the use of frequency bands is not harmonised. The aim of this provision is to alert the user not to use transmitting radio equipment in areas, where they cannot be used, i.e. where the frequency bands have been allocated to other services. Since receive-only equipment does not transmit, they can be switched on without risk anywhere in the Community even though they might operate in frequency bands, which are not harmonised in the Community.

2. Legal analysis

Article 6.3 foresees that the purchaser is informed on the packaging and the manual information on the geographic areas, where such equipment is allowed to be used. As discussed in section 2 above, one can argue, that the provision aims to avoid that equipment, which could create interference in bands allocated to certain public services is avoided. This reasoning leads to the conclusion, that this extra labelling requirements would not apply to receive-only equipment. However, likewise to what has been stated in section 2, the term radio equipment as defined by the Directive includes receive-only equipment, with the exception of receive only radio equipment intended to be used solely for the reception of sound and TV broadcasting services. One could wonder if Article 6.3 has not only as objective to avoid harmful interference but also to inform the user of the circumstances/locations under which the equipment is capable of being used. However, the second sentence of Article 6.3 which defines its application to radio equipment ("…potential restrictions or requirements for authorisations…") refers only to legal constraints imposed for avoiding interference. It does not refer to the geographical availability of radio signals. Thus, being never able to create interference, receive-only radio equipment never has geographical restrictions in the sense of the directive, and cannot be requested to carry an equipment class identifier.

3. Conclusion

No obligation exist to give information about geographical areas in user manuals for Class I equipment without an alert sign. In particular, Article 6.3 does not apply to radio receive-only equipment.

5. Can an equipment identifier be empty?

1. Issue

Ad Hoc Groups B and D arrived at the conclusion, that there should just be 2 types of equipment class identifiers:

an alert sign, indicating that transmitting radio equipment operates in non-harmonised frequency bands and can cause interference;

a non-alert sign, indicating that the equipment can be switched on anywhere in the Community;

The group proposed to shape the alert sign like the traffic danger sign and proposed to have an empty sign for the non-alert sign. The question here is whether the latter is possible.

2. Legal analysis

Article 4.1 of the Directive states that: « Member States shall notify the interfaces which they have regulated to the Commission insofar as the said interfaces have not been notified under the provisions of Directive 98/34/EC. After consulting the committee in accordance with the procedure set out in Article 15, the Commission shall establish the equivalence between notified interfaces and assign an equipment class identifier, details of which shall be published in the Official Journal of the European Communities.». Article 12.1 , 2nd para, 2nd sentence of the Directive states that: « Radio equipment shall in addition be accompanied by the equipment class identifier where such identifier has been assigned. ».

3. Conclusion

From the above it follows, that the Commission is not obliged to assign an equipment identifier for all types of equipment. Therefore the Commission could envisage to only foreseeing such an identifier for transmitting equipment, which is likely to cause interference and refrain from assigning an identifier for other types of equipment. This conclusion was used in taking decisions on equipment classes and identifiers.

6. Application of article 9.5 of the Directive to receive-only equipment

1. Issue

Currently some Member States prohibit or restrict the placing on the market of receive-only equipment able to receive signals in frequency bands used by emergency services or other specific bands. The question is to what extent the free movement of such receivers could be limited through application of article 9.5 .

2. Legal Analysis

Article 9.5 contains safeguards for a Member State to restrict the placing on the market or to require the withdrawal from its market, radio equipment, including types of radio equipment, which has caused or which it reasonably considers will cause harmful interference. This provision is a derogation from the principle of free movement of equipment, which complies with the provisions of the Directive. As is the case for other derogations, it needs to be interpreted in a narrow sense. It cannot be interpreted to apply to receive-only equipment.

3. Conclusion

Article 9.5 cannot be used to bar receive-only equipment from the market.

7. Aspects on which a notified body could give an opinion

1. Issue

The conformity assessment procedure of annex IV of the Directive was introduced as an additional safeguard to avoid that radio equipment, for which no harmonised standard exists, causes harmful interference. The notified body is charged with giving an opinion on the technical file, which is produced by the manufacturer. Where a manufacturer of transmitting radio equipment doesn't apply harmonised standards covering the requirements of articles 3.1 or 3.3 (i.e. the non-radio related essential requirements) it seems that they are automatically subject to the procedures of Annex IV , which may not have been the intention of the legislator.

2. Legal analysis

Article 10.4 of the Directive states: « Where a manufacturer has applied the harmonised standards referred to in Article 5(1), radio equipment not within the scope of paragraph 3 shall be subject to the procedures described in any one of Annex III , IV or V at the choice of the manufacturer. ». Article 10.5 of the Directive states: « Where a manufacturer has not applied or has only applied in part the harmonised standards referred to in Article 5(1), radio equipment not within the scope of paragraph 3 of this Article shall be subject to the procedures described in either of Annexes IV or V at the choice of the manufacturer.». Where a manufacturer cannot or doesn't apply harmonised standards covering the essential requirements of article 3.1 or 3.3 , such equipment can be submitted to either the procedures of annex IV or annex V . The manufacturer can even choose to apply annex IV when he applies harmonised standards.

3. Conclusion

A notified body could give an opinion on all essential requirements.

8. Possibility for Member States to introduce requirements to enable interception of calls

1. Issue

Articles 3.3.c . and d. give the possibility to the Commission to decide that R&TTE apparatus shall be so constructed that:

• it incorporates safeguards for the protection of the personal data and privacy and
• it supports avoidance of fraud.

Such could for instance imply, that it is imposed on equipment to enable encryption of data. Some Member States currently actually limit the length of the keys used for data encryption in order to be able to intercept data. Is it possible for Member States to maintain such restrictions?

2. Legal analysis

A Member State could invoke article 30 EC (ax-article 36) if Community Directive do not envisage to harmonise the necessary measures to obtain a specific objective, which it aims to protect.A Member State can justify limiting the length of encryption keys on the grounds that police services need to be able to decrypt every communication. Such a specific objective is not covered by article 1999/5/EC as it is not an essential requirement contained in article 3.

3. Conclusion

Member States could invoke article 30 in such cases, subject to being able to demonstrate that the measure is necessary and proportional to achieve the objective.

9. Possibility to place products on the market in the Community, which cannot be used in the Community

1. Introduction

The Directive introduces the principle of free movement for radio equipment. Also where equipment cannot be used it can be marketed, provided that the user is duly informed and the essential requirements are properly met (when the equipment is used for its intended purpose).

In the extreme case, one could thus argue, that equipment, which cannot be used in the Community could also freely move, provided that the user is informed.

2. Analysis

There aren't any legal provisions in the Directive preventing an interpretation, which would forbid such products to freely move.

The question is however, whether such equipment could meet the requirements of the Directive, i.e. notably whether they wouldn't cause harmful interference when used for their intended purpose.

This leads to a paradoxal but correct assessment: if the intended use is to not put them into service in the Community, they by default comply with the essential requirements! So even high power radio equipment would comply with the Directive (as long as they remain switched off!).

There are however classes of equipment, which can comply with the Directive, even though they are put into service (i.e. switched on). This notably applies to equipment operating as terminal for modern cellular communication systems, which only transmit under the control of networks and therefore would never transmit in the Community as a controlling network doesn't exist.

The proper way to deal with harmful interference caused by such equipment is to apply the safeguards already contained in the Directive. It is likely that such products would be placed on the market anyway, regardless of whether such would be allowed (e.g. direct e-mail orders to the US). It therefore is beneficial to subject them to the rules of the Directive, which notably obliges manufacturers to notify their intention to place on the market and obliges them to properly inform the user.

If such equipment is operating under the control of (non-existing) networks, the risk of interference doesn't exist. The manufacturer could therefore declare that it can be switched on (albeit without any useful purpose of which he would have to inform the user if he doesn't want to create the impression of willing to deceive him). If such is not the case and such equipment would likely be causing harmful interference, Member States could consider applying article 9.5 of the Directive.

3. Conclusion

Radio products, which cannot operate anywhere in the Community, can freely move in the Community and manufacturers should abide by its rules. Where there is a high likelihood of harmful interference Member States can invoke article 9.5 of the Directive.

10. Transitional provisions

1. What role can and should notified bodies play for products, marked according old regulations?

Article 18.2 of the Directive defines until when equipment, which is approved to national and Community regulations can continue to be placed on the market. The objective of the article was to allow such equipment to be placed on the market until 2 years after the entry into force of the Directive but not to allow any new approvals under the existing regulations.

This would mean, that in the period between 8/4/2000 and 8/4/2001 such equipment could continue to be marked according Directive 98/13/EC, i.e. CE <Notified Body Number> [crossed-hockey sticks] or national regulations.

There seems to be an ambiguity in the legal text as Directive 98/13/EC is repealed and therefore the legal basis seems to disappear for the Notified Bodies of which the number is put on the equipment. It therefore seems that a notified body cannot further be responsible for the product and further is unlikely to be willing to continue to exercise its role under annexes II and III of 98/13/EC.

2. Can equipment, which is approved and marked according to old national regulations circulate freely?

The Directive introduces the concept of free movement for goods for technically non-harmonised products, currently covered by national approval regulations. In the period 8/4/2000-8/4/2001 such equipment can continue to be marked under such national approval regulations. The question is raised, whether such equipment could actually freely move.

3. Definition of concept "first placed on the market"

The R&TTE Directive has defined an extremely short transitional period in comparison with other Directives. This implies, that before 8/4/2000 it will not be possible to declare compliance with the R&TTE Directive, whereas after 8/4/2001 one has to declare compliance with the R&TTE Directive before placing a product on the market.

4. Legal analysis

Article 18.2 of Directive 1999/5/EC, titled "transitional provisions" states:

« Member States shall not impede the placing on the market and putting into service of apparatus which is in accordance with the provisions in Directive 98/13/EC or rules in force in their territory and was placed on the market for the first time before this Directive entered into force or at the latest two years after this Directive entered into force. ».

The Directive entered into force on 7 April 1999. It has to be implemented before 7 April 2000 and must be applied as of 8 April 2000.

The first version of the « Guide relatif à la mise en application des directives d'harmonisation technique communautaire élaborées sur la base des dispositions de la nouvelle approche et de l'approche globale » (published in 1994, page 28 and further) states that the transitional period foreseen in such Directives should notably allow that « aux fabricants qui ont acquis des droits au titre des règlementations préexistantes à la directive, d'épuiser ces droits » and « d'écouler leurs stocks de produits fabriqués conformément à la réglementation nationale en vigueur avant la date d'entrée en application de la directive ». It is further stated that « à la fin de la période transitoire, les Etats membres ont l'obligation de mettre fin aux régimes nationaux qu'ils avaient maintenus en vigueur jusqu'alors », « les mesures nationales de transposition de la directive seront les seules réglementations obligatoires en vigueur pour les produits et les exigences qu'elles couvrent dans tous les Etats membres, à l'exclusion de toute autre ».

The second version of this guide, which currently is under preparation, will state (point 2.4):

« During the transitional period, products conforming to all applicable directives may be placed on the Community market and put into service in any Member State. Products manufactured in line with national regulations or with non-mandatory technical specifications move freely according to the principles laid down by article 30 and 36 of the Treaty ».

A footnote further precises: « However, where the national regulations to be replaced have transposed existing Community harmonized legislation, all products - whether in accordance with the old or new system - are subject to free movement during the transitional period. For instance, the draft directives on radio and telecommunications terminal equipment and on noise emissions are intended to replace existing Community directives ».

Further on the draft states that : « During the transitional period Member States make no changes to the system in question, which would modify product requirements or the conformity assessment procedure, or which would otherwise have an effect on acquired rights ...At the end of the transitional period Member states are obliged to terminate the national systems kept in force until then ... products may no longer be manufactured according to type approvals or other certificates issued under the system to be repealed ».

The draft finally states that :

« According to the general rule, CE marking indicates that products, which are subject to several directives providing for its affixing, are presumed to conform to the provisions of all these directives. However, where one or more of these directives allow the manufacturer, during a transitional period, to choose which arrangements to apply, the CE marking indicates conformity only to the directives applied by the manufacturer. Consequently, during a transitional period the CE marking does not necessarily indicate that the product conforms to all applicable directives providing for its affixing. Therefore, the documents, notices or instructions required by the directives and accompanying the product must clearly indicate the directives applied by the manufacturer ... ».

In the context of the new approach "placing on the market" is defined as: « A product is placed on the Community market when it is made available for the first time. This is considered to take place when a product is transferred from the stage of manufacture with the intention of distribution and/or use on the Community market . Moreover, the concept of placing on the market refers to each individual product, not to a type of product, and whether it was manufactured as an individual unit or in series».

5. Conclusion

The following interpretation therefore needs to be given to the transitional provisions of the Directive:

Before 7/4/2000

Since the provisions of national implementations of Directive 1999/5/EC only apply as of 8 April 2000, the national implementation of Directive 98/13/EC apply to equipment within its scope and the provisions of articles 28 and 30 EC for other equipment.

Between 8/4/2000 and 7/4/2001

The transitional regime applies and manufacturers can place on the market and put into service equipment:

• Which complies with Directive 1999/5/EC ;
• Which complies with Directive 98/13/EC (for equipment within its scope)
• Which complies with national regulations (e.g. for radio equipment, which don't fall within the scope of Directive 98/13/EC)

In the first 2 cases, equipment can freely move according to the provisions of the Directives. In the 3rd case articles 28 and 30 CE apply.

In order to avoid confusion on the meaning of the CE mark for the first 2 cases, the documentation of the equipment should clearly specify, which Directive has been applied ( 1999/5/EC or 98/13/EC).

In the 3rd case the documentation should mention, that the CE mark indicates that the equipment complies with the EMC (89/336/EC) and LVD (73/23/EC) Directives and not with Directives 98/13/EC or 1999/5/EC .

It is not correct to state that as of 8 April 2000 notified bodies under Directive 98/13/EC would legally not further exist. The repeal of Directive 98/13/EC ( art.20.1 ) is without prejudice to the provisions on the transitional period ( art.18.2 ). A precision of the provisions of Directive 98/13/EC, which are maintained during the interim period, should therefore be made.

Article 18.2 mentions the obligation on Member States to allow "the placing on the market and putting into service of apparatus which is in accordance with the provisions in Directive 98/13/EC...". This includes equipment, which is produced before 8 April 2001 but has not been placed on the market by that date. Such is compatible with the objective of the transitional period, i.e. to allow a manufacturer to get rid of his stock. This also includes equipment, which has been produced between 8 April 2000 and 7 April 2001 on the basis of rights obtained by manufacturers before this period. A manufacturer, who obtained from a notified a type examination certificate before 8 April 2000, can use this certificate to produce and market until 7 April 2001 equipment and declare their conformity to type (annex II and III). The same applies for a manufacturer who obtained full quality assurance certification according to annex IV. Notified bodies therefore need to continue their surveillance tasks foreseen in those annexes during this period.

It is difficult to assume, that the provision ( Article 18.2 ) would cover equipment, which has been produced between 8 April 2000 and 7 April 2001 on the basis of rights obtained by manufacturers under 98/13/EC within this period. Such an interpretation would not be compatible with the aim of the transitional period, which is to have rights progressively disappear. New rights should therefore not be created and only the rules of the new regime should therefore be applied.

This might actually be an academic case as there would be little interest for a manufacturer to obtain certificates, which would cease to have a value after 8 April 2000, when he can use the procedures of the new Directive 1999/5/EC .

As of 8 April 2001

Only Directive 1999/5/EC applies. Equipment, which has been placed on the market before that date can however be put into service, provided that it was ready for use when it was placed on the market.

Article 18.2 doesn't explicitly mention that as of 8 April 2001 it is not further allowed to place on the market equipment, which conforms to national regulations nor does it specify whether they can freely move. Such is in fact not necessary since as of 8 April 2001 the transitional regime no further applies. The normal regime of the Directive applies and by virtue of art.6.1 equipment it is not further possible to place on the market equipment, which does not comply with the Directive.

11. Interface publication for innovative services, possibility for Member States to position an NTP at the user side of the terminal

1. Introduction

Article 4.2 obliges operators of telecommunication networks to publish their interfaces in advance of offering public services over it. The Directive does apply this obligation to all operators, regardless of market power. There is opposition to such an obligation with certain network operators, who argue that it would hamper the development of innovative services. They claim that innovation would be done outside the Community, where such an obligation doesn't exist.

It was suggested to exempt certain classes of equipment from this obligation. Another suggestion would be to define the Network Termination Point (NTP) at the user side of the terminal (a definition for the NTP can be found in Directive 97/51/EC).

2. Legal analysis

Article 2.e of Directive 1999/5/EC lays down, that for the purpose of this Directive the following definition of an interface applies:

«(e) interface' means

a network termination point, which is a physical connection point at which a user is provided with access to public telecommunications network, and/or

an air interface specifying the radio path between radio equipment and their technical specifications; »

Article 4.2 of Directive 1999/5/EC states that:

« Each Member State shall notify to the Commission the types of interface offered in that State by operators of public telecommunications networks. Member States shall ensure that such operators publish accurate and adequate technical specifications of such interfaces before services provided through those interfaces are made publicly avail able, and regularly publish any updated specifications. The specifications shall be in sufficient detail to permit the design of telecommunications terminal equipment capable of utilising all services provided through the corresponding interface. The specifications shall include, inter alia, all the information necessary to allow manufacturers to carry out, at their choice, the relevant tests for the essential requirements applicable to the telecommunications terminal equipment. Member States shall ensure that those specifications are made readily available by the operators. »

Article 4.2 therefore foresees an obligation for network operators to publish technical specifications of the interfaces before offering services over such interfaces. All interfaces, which are defined by Article 2.e are subject to this obligation. It therefore is not possible to allow the publication of such interfaces after having offered the service to the public.

The Directive does however not specify the delay between the publication of the interface specification and the public offering of the service. Therefore, Member States can envisage variable delays. They can notably lay down short delays for operators offering new services in order not to penalise innovation and competition.

3. Conclusion

It is not possible to allow publication of the interface after the service has been offered for the first time to the public. It further is not possible for the NTP to be positioned outside the telecommunications network.

12. What limitations, posed by the WTO and the Treaty limit Member States in regulating interfaces?

1. Introduction

The Directive, whilst removing many barriers, resulting from diverging national regulations does not harmonise the use of the frequency spectrum. Lack of harmonisation of spectrum in the Community without doubt has the effect of creating quantitative restrictions to trade, which are incompatible with Article 28 of the Treaty. The Member States therefore are obliged to maximise harmonisation of the use of the spectrum. Community Harmonisation of the spectrum is, taking into account the installed base of equipment and long term licenses for use, an issue that can only be addressed progressively and in the longer term. The European Radiocommunications Committee (ERC) is studying ways to progress this issue. The Commission recently issued a Green paper to discuss the role of the Community in this area.

The Directive recognises the lack of harmonisation of spectrum by introducing the notion of "nationally regulated interfaces" ( Article 4.1 ), which must be notified to the Commission, either through the procedures of Directive 98/34/EC or the R&TTE Directive itself.

The US government recently challenged the EU policy on the introduction of 3rd generation mobile systems and notably on the EU intention to prescribe that at least one operator per MS should use a certain technology to ensure pan-European roaming.

This triggered a discussion on what Member States can actually regulate nationally (see attached document from the ERC). The issue was notably raised by the French delegation in TCAM 2 (TCAM 2 (99) 26) in which they seek a position from the Commission and make some proposals.

2. Legal analysis

Recital 32 of Directive 19995/5/EC states that:

« Whereas radio equipment and telecommunications terminal equipment which complies with the relevant essential requirements should be permitted to circulate freely; whereas such equipment should be permitted to be put into service for its intended purpose; whereas the putting into service may be subject to authorisations on the use of the radio spectrum and the provision of the service concerned »

Article 3 of the Directive lists among the essential requirements applicable to radio equipment that equipment shall be so constructed that it effectively uses the spectrum allocated to terrestrial/space radio communication and orbital resources so as to avoid harmful interference.

Article 7.2 foresees that «Member States may restrict the putting into service of radio equipment only for reasons related to the effective and appropriate use of the radio spectrum, avoidance of harmful interference or matters relating to public health ».

Where the allocation of Member States of non-harmonised frequency bands leads to barriers to free movement of radio equipment and services, the Community can decide to harmonise the spectrum in order to achieve the single market by introducing measures, which attribute frequencies to services and which lay down technical conditions.

Where Community harmonisation measures on the use of the spectrum have not been adopted, Member States can adopt measures in that domain, whilst respecting the rules of the Treaty EC and notably articles 28-30 thereof.

Directive 1999/5/EC does not harmonise the use of the radio frequency spectrum and it recognises that Member States can regulate the use of the spectrum. It however also lays down, that national regulations limiting the putting into service of radio equipment can only be based on a limited number of justifications.

This does not exclude that Member States can bar from their markets equipment for reasons, which are not covered by the Directive under article 30 of the Treaty EC. Article 30 lists a number of general interest reasons that could justify a national measure restricting the free movement of goods (public order, public security, protection of health). The jurisprudence of the Court of Justice allows also other « imperative reasons » provided that the national measure is not discriminatory.

In any case, the measure needs to be proportionate, i.e. necessary to obtain the general interest requirement.

For these reasons, Member States can in principle not impose that a single technology be used in certain frequencies, except when it is possible to demonstrate, that such is the only way in which the general interest requirements, recognised by Community law can be met and notably when the usage of several technologies on the same frequencies would lead to harmful interference.

The WTO rules are comparable. Annex 1A of the agreement on technical barriers to trade (TBT-GATT 1994), specify lays down in article 2.2 :

« Les membres feront en sorte que l'élaboration, l'adoption ou l'application des règlements techniques n'aient ni pour objet ni pour effet de créer des obstacles non nécessaires au commerce international. A cette fin, les règlements techniques ne seront pas plus restrictifs pour le commerce qu'il n'est nécessaire pour réaliser un objectif légitime, compte tenu des risques que la non-réalisation entraînerait. Ces objectifs légitimes sont, entre autres, la sécurité nationale, la prévention de pratiques de nature à induire en erreur, la protection de la santé ou de la sécurité des personnes, de la vie ou de la santé des animaux, la préservation des végétaux ou la protection de l'environnement. Pour évaluer ces risques, les éléments pertinents à prendre en considération sont, entre autres, les données scientifiques et techniques disponibles, les techniques de transformation connexes ou les utilisations finales prévues pour les produits ».

Article 2.8 of the agreement adds that:

« Dans tous les cas où cela sera approprié, les membres définiront les règlements techniques basés sur les prescriptions relatives au produit en fonction des propriétés d'emploi du produit plutôt que de sa conception ou de ses caractéristiques descriptives ».

These provisions impose on the Community and the Member States provisions, comparable to those under Communty law, with the difference that it concerns barriers to the import of goods of 3rd countries.

3. Conclusions

In principle interface regulations should aim at achieving the objectives of article 7.2 of the Directive (effective and appropriate use of the radio spectrum, avoidance of harmful interference and matters relating to public health). Only where it can be demonstrated that harmful interference can only be avoided by prescribing a technology such would be justified (under both Community and WTO rules).

13. What notified body number is to be affixed if more than one notified body is involved (Annex IV, or a different notified body is involved for annex III and Annex IV)?

1. Introduction

In principle the manufacturer has to put a notified body number on the equipment for radio equipment ( article 12.1 ). When he however uses essential test suites from a harmonised standard and uses the annex III procedure, this is not feasible.

The Directive offers the manufacturer the possibility to approach more than one notified body in the conformity assessment process of a terminal ( annex IV ). He could for instance ask one notified body to prescribe the test suites and submit his technical file to 2 notified bodies for opinion (1 giving its opinion on e.g. safety aspects, another one on radio aspects).

The question then arises, which notified body number should then be put on the equipment.

2. Legal analysis

Article 12.1 , 2nd paragraph of Directive 1999/5/EC states : : « Where the procedures identified in Annex III, IV or V are used, the marking shall be accompanied by the identification number of the notified body referred to in Article 11(1) . Radio equipment shall in addition be accompanied by the equipment class identifier where such indentifier has been assigned. Any other marking may be affixed to the equipment provided that the visibility and legibility of the EC marking is not thereby reduced » (i.e. of the body, involved in the conformity assessment procedures of annexes II to V).

Annex IV of the Directive (Technical construction file) states:

« ... The manufacturer, his authorised representative established within the Community or the person responsible for placing the apparatus on the market, must present the file to one or more notified bodies, each of the notified bodies must be informed of others who have received the file. ».

Whenever a notified is involved on the selection of essential test suites or when it examines a technical file, his identification number must be affixed as part of the marking.

3. Conclusion

If more then one body is involved, the identification number of each body must be affixed.

14. Manufacturers, representatives or persons responsible for placing on the market

1. Introduction

The Directive uses several terms relating to the economic actor responsible for a product. As regards the affixing of the mark article 12.1 seems to be in contradiction with the provisions of the conformity assessment procedures mentioned in annex II.1 and annex V.1 :

Article 12.1 : manufacturer, representative or person responsible for placing on the market

Annex II.1