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