Judgment — ECLI:EU:C:2018:554
Date: 2018-07-11
Language of the case: Italian
Court formation: Ninth Chamber
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Ninth Chamber), 11 July 2018 1. Approximation of laws — Radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity — Directive 1999/5 — Conformity assessment procedure — Use by the manufacturer of the harmonised standards in order to define the essential radio test suites — Obligation to consult a notified body and to ensure that the CE marking is accompanied by the identification number of that notified body — None (European Parliament and Council Directive 1999/5, as amended by Regulation No 596/2009, Arts 5(1), 11(1) and 12(1), second subpara., and Annex III, second para.) 2. Approximation of laws — Radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity — Directive 1999/5 — Conformity assessment procedure — Use by the manufacturer of the harmonised standards in order to define the essential radio test suites — Voluntary consultation of a notified body by the manufacturer in order to confirm the list of tests — Obligation to ensure that the CE marking is accompanied by the identification number of that notified body — None (European Parliament and Council Directive 1999/5, as amended by Regulation No 596/2009, Art. 12(1), second subpara., and Annex III, second para.) 1. The second subparagraph of Article 12(1) of Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, as amended by Regulation (EC) No 596/2009 of the European Parliament and of the Council of 18 June 2009, must be interpreted as meaning that, where a manufacturer of radio equipment makes use of the procedure laid down in the second paragraph of Annex III to that directive and uses the harmonised standards in order to define the test suites referred to in that paragraph, he is not required to consult a notified body as referred to in Article 11(1) of that directive and, consequently, is not required to ensure that the CE marking is accompanied by the identification number of that notified body. Thus, it follows from the wording of Annex III to Directive 1999/5 that the conformity of apparatus with the essential requirements, which, according to Article 10(1) of that directive, are those identified in Article 3 thereof, may be established by the manufacturer himself if he has carried out all the essential radio test suites defined in the harmonised standards. Consequently, based solely on the wording of that annex, that assessment procedure does not call, in all circumstances, for the involvement of a notified body, whether in the identification of the essential radio test suites, or in order to carry out those test suites. Accordingly, where the manufacturer has made use of the harmonised standards when using the conformity assessment procedure identified in Annex III to Directive 1999/5, the wording of the second subparagraph of Article 12(1) of that directive, read in the light of the wording of that annex, must be interpreted as not calling for the involvement of a notified body and, consequently, for the affixing of the CE marking on radio equipment to be accompanied by the identification number of that body. In addition, Article 5(1) of Directive 1999/5 provides that, where apparatus meets the ‘harmonised standards’, defined in Article 2(h) of that directive as ‘technical specification[s] adopted by a recognised standards body ... for the purpose of establishing a European requirement, compliance with which is not compulsory’, there is also a consequent presumption of compliance with the essential requirements. Accordingly, in such a situation, the involvement of a notified body is not necessary in order to ensure that that equipment does not represent an avoidable hazard to health and is thus also not necessary in order to protect the health and the safety of the user. (see paras 34, 35, 39, 44, 47, operative part 1) 2. The second subparagraph of Article 12(1) of Directive 1999/5, as amended by Regulation No 596/2009, must be interpreted as meaning that a manufacturer of radio equipment who has made use of the procedure identified in Annex III to that directive, using the harmonised standards defining the essential radio test suites to be carried out, is not required to ensure that the CE marking is accompanied by the identification number of the notified body that he has voluntarily consulted — despite not being required to do so — in order to confirm the list of essential radio test suites set out in those harmonised standards. (see para. 52, operative part 2)