EN Official Journal of the European Union C 133/58

Opinion of the European Economic and Social Committee on the ‘Proposal for a directive of the European Parliament and of the Council on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment’

COM(2012) 584 final — 2012/0283 (COD)

2013/C 133/11

Rapporteur: Bernardo HERNÁNDEZ BATALLER

On 26 October and 5 November 2012 respectively, the European Parliament and the Council decided to consult the European Economic and Social Committee, under Articles 26 and 114 of the Treaty on the Functioning of the European Union, on the

Proposal for a Directive of the European Parliament and of the Council on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment

COM(2012) 584 final – 2012/0283 (COD).

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 5 February 2013.

At its 487th plenary session, held on 13 and 14 February 2013 (meeting of 13 February), the European Economic and Social Committee adopted the following opinion by 74 votes with 1 abstention.

1. Conclusions and recommendations

1.1 The EESC supports the Commission's proposal insofar as it simplifies the legal framework, clarifies existing rules and improves the consistency of EU legislation on the placing of products on the market.

1.2 It should be emphasised that all economic operators should be responsible for the compliance of products, in relation to their respective roles in the supply chain, so as to ensure a high level of health and safety protection for consumers. The EESC calls on the Commission and the Member States to ensure, each within the remit of their responsibilities, that products entering the EU market from non-EU countries meet the directive's requirements.

1.3 With regard to rules on penalties, the EESC calls for further details regarding the nature of the penalties, the definition of offences, and the minimum threshold for the penalties at the supranational level, even if these are ensured by the Member States' legislation. To this end, it eagerly awaits the Commission's approval of the so-called ‘market surveillance package’, which includes detailed provisions for enhanced cooperation and harmonisation.

1.4 The Commission, producers and consumers should study the prospect of creating a new marking system that establishes the origin of products and ensures their traceability to improve consumer information.

2. Introduction

2.1 The current legal framework for the placing on the market, free movement and putting into service in the EU of radio equipment and telecommunications terminal equipment, which has been force since 1999 (1), has been crucial to achieving an internal market in this area.

2.2 At the time, the EESC welcomed (2) this directive, which included essential requirements for the protection of health and safety, electromagnetic compatibility, and the avoidance of harmful interference. It followed the so-called ’New Approach‘ for legislation in that it established technical requirements as non-mandatory harmonised standards, restricting legislative requirements to those that were essential (3).

2.2.1 The current legal framework has proved complex since under Directive 1999/5/EC only equipment complying with the requirements of the directive may be placed on the market. Moreover, Member States cannot introduce further restrictions addressing at national level the same requirements, namely the protection of health and safety, electromagnetic compatibility, and the avoidance of harmful interference.

2.2.2 Other EU legislation on environmental aspects also applies to these products, in particular the directives on hazardous substances, waste electrical and electronic equipment and batteries, as well as the implementing measures under the EcoDesign Directive.

2.2.3 At the same time, the putting into service and use of radio equipment is subject to national regulation. When exercising this competence, Member States must comply with applicable EU law, in particular: — the general framework for spectrum policy set out in the Radio Spectrum Policy; — general criteria laid down in the Electronic Communications ‘Framework Directive’; — conditions for authorisations for the use of spectrum laid down in the Authorisation Directive for electronic communications; — implementing measures harmonising the technical conditions for the use of certain spectrum bands in the EU and that are binding on all Member States.

2.3 To this we must add the requirement for consistency with the other policies and objectives of the Union, and in particular with the new legislative framework package for the marketing of products adopted in 2008 (4), which was supported by the EESC (5), in that its objective and purpose was to provide: — a common framework for the marketing of products; and — a common framework of general principles and reference provisions intended to apply across the legislation harmonising the conditions for the marketing of products in order to provide a coherent basis for revision or recasts of that Decision.

2.4 The Commission sets out to address this complex legal framework through a proposal that aims to clarify the application of Directive 1999/5/EC, and replace it in order to eliminate unnecessary administrative burdens for businesses and administrations by increasing spectrum flexibility and easing administrative procedures for spectrum use.

3. The Commission proposal

The most significant elements of the proposal for a revision of the directive are the following:

3.1 Alignment with Decision No 768/2008/EC on a common framework for the marketing of products (including the definitions set out in chapter R1 of Decision No 768/2008/EC; the obligations of economic operators; three modules for conformity assessment; the obligations for the notification of conformity assessment bodies; and simplified safeguard procedures).

3.2 Decision No 768/2008/EC was adopted with Regulation (EC) No 765/2008 (on accreditation and market surveillance). Together they established guidelines for improving the functioning of the internal market and a more coherent policy approach to the technical harmonisation of product safety. They also established a more effective surveillance system for all products entering the market from EU or non-EU countries and improved consumer protection in the single market.

3.3 A new definition has been established for ‘radio equipment’, which includes all and only equipment which intentionally transmits signals using radio spectrum, whether for the purpose of communication or other; hence the new directive's title will only refer to the marketing of ‘radio equipment’. The directive will not apply to fixed-line terminal equipment.

3.4 The proposal makes it possible: — to require radio equipment to interoperate with accessories such as chargers; and — to require software-defined radio equipment to ensure that only compliant combinations of software and hardware come together. To this end, it makes it possible to adopt measures to avoid this regulatory requirement creating barriers to competition in the market for third-party software.

3.5 It introduces the possibility to require registration within a central system of products within categories showing low levels of compliance, on the basis of information on compliance provided by Member States.

3.6 The proposal clarifies the relation between Directive 1999/5/EC and EU and national legislation on the use of radio spectrum.

3.7 It simplifies and reduces the administrative obligations set out below. a) The new definition of radio equipment establishes a clear demarcation of scope with the electromagnetic compatibility (EMC) Directive. b) Pure receivers and fixed-line terminals cease to fall within the scope of the directive, falling instead within the scope of the EMC Directive or the Directive relating to electrical equipment designed for use within certain voltage limits or, depending on their voltage, within the scope of the EMC Directive and Directive on general product safety; this entails some reduction of administrative obligations. c) The requirement to notify the placing on the market of equipment using frequency bands which are not harmonised throughout the EU is removed. d) The following requirements for producers are removed: — the obligation to affix an equipment class identifier on the product; and — the obligation to affix CE marking on user instructions. e) Requirements supporting competition in the market for terminals (relating to interface specifications and technical grounds relating to connecting telecommunications terminal equipment to interfaces) are removed from the text of the directive since similar requirements are in force under the Directive on competition in the markets in telecommunications terminal equipment.

3.8 Finally, the proposal for a directive seeks alignment with the TFEU and Regulation (EU) 182/2011 on the Commission’s exercise of implementing powers, the procedures for the exercise of implementing and delegated powers, and exercise of the delegation, more specifically: — implementing powers are proposed for the determination of equipment classes and presentation of information on geographical area for use and on restrictions to use of radio equipment; and — delegated powers are proposed for the adaptation to technical progress of Annex II listing some equipment falling or not within the definition of radio equipment; additional essential requirements; provision of information on the compliance of software-defined radio equipment and the requirement to register radio equipment within some categories.

4. General comments

4.1 The EESC supports the Commission's proposal as it improves the consistency of EU legislation, in line with Article 7 of the TFEU, by opting for the legislative technique of ‘substitution’ whereby legislation is recast by adopting a new legal act which integrates all the substantive amendments and unchanged provisions of an earlier act into a single act, since the new act replaces and repeals the earlier one, aligning terminology with Decision No 768/2008/EC and the Lisbon Treaty.

4.2 The free movement of goods is one of the four fundamental freedoms of the Treaties and the proposal for a directive promotes the movement of safe goods, thereby strengthening consumer protection, the competitiveness of businesses and creating conditions of fair competition for economic operators.

4.3 In order to ensure conditions that restore the competitiveness of European industry, the EESC believes that it is vital for the internal market to ensure full interoperability in order to reduce the fragmentation of national markets and investment in research and innovation.

4.4 The EESC points to the need to develop a proactive industrial policy that better reflects the balance between the capacities of producers, a technical and regulatory framework for intellectual property rights and, above all, the types of products that can meet common standards, rules and harmonised procedures.

4.5 Technical and regulatory standards should be adopted in line with the principles of New Approach Standardisation, ensuring public information and transparency for the work, with the full participation of the social partners and civil society organisations.

5. Specific comments

5.1 Regarding its subject matter and scope, Article 1(3) excludes a whole range of radio equipment exclusively used for activities concerning ‘public security’, which in addition to defence or State security, includes other concepts such as ‘the economic well-being of the State’, which need to be defined or explained to improve the clarity of the provision.

5.1.1 Furthermore, although these types of equipment are excluded under Article 1(3), they are not mentioned in Annex I as ‘equipment not covered by this directive’.

5.2 The EESC advocates promoting interworking via networks with other radio equipment and connection with interfaces of the appropriate type throughout the Union, which may simplify use of radio equipment by facilitating interoperability between radio equipment and accessories.

5.3 In order to better protect the personal data and privacy of radio equipment users, an ethical and social side to technological security applications needs to be developed as early as the design stage, in order to ensure its social acceptance. The protection of fundamental citizen rights must be guaranteed throughout all stages, from design to standardisation and technological application on the ground, by introducing it during the very first stages.

5.4 The requirements for placing both EU and non-EU products on the market need to be clarified. As a result, Article 6 should mention in what situations the directive's fundamental requirements may be deemed to have been met (EU harmonised standards, international standards published by the Commission), together with cases of additional national laws.

5.5 The EESC advises the Commission and the Member States to ensure that marketed products comply with the directive's requirements for the relevant spectrum band in order to avoid interference with the 800 MHz band as well as ‘unnecessary contamination of the radio spectrum’. This recommendation is particularly necessary in cross-border regions, where it would be useful to harmonise the schedules and technology to be applied.

5.6 The EESC is in favour of providing access to emergency services, especially for people with disabilities, which is why equipment should be designed to support the required features.

5.7 It is very important for all economic operators to be responsible for the compliance of products, in relation to their respective roles in the supply chain, so as to ensure a high level of protection of health and safety and to guarantee fair competition on the EU market.

5.8 The EESC calls on the Commission and the Member States to ensure, within the remit of their responsibilities, that products entering the EU market from non-EU countries meet the directive's requirements. They must ensure that all importers who place products on the market meet all the requirements and do not market non-compliant or hazardous products.

5.9 The traceability of radio equipment throughout the whole supply chain must be ensured as a market surveillance measure facilitating the consumer's right to information.

5.10 The EESC reiterates (6) that the current marking system does not ensure that products have undergone a quality and safety assurance process, thus failing to meet consumers' expectations.

5.11 With regard to the accreditation and conformity assessment system, the EESC advocates the same level of competence for the notified conformity assessment bodies, more stringent selection criteria, and harmonised conformity assessment procedures.

5.12 At the same time, the EESC believes that the conditions for ensuring the independence of the notified conformity assessment bodies need to be strengthened by extending the incompatibilities mentioned in Article 26(4) to cover activities carried out two or three years before the assessment.

5.13 The EESC has concerns about the ‘delegated acts’ set out in the proposal, which sometimes lack necessary practical details, as for instance in Article 5 on the registration of radio equipment within some categories, which empowers the Commission with respect to their ex-post identification, without specifying any criteria, which could result in a margin of discretion that is too broad.

5.14 With regard to rules on penalties, the proposal should define, at the supranational level, the nature of, and a minimum threshold for, penalties, which must be ensured by the Member States' legislation since the proposal for a directive only mentions the national authorities' obligation to establish ‘effective, proportionate and dissuasive’ measures, with the result that some operators might go ‘forum shopping’ for the jurisdiction that best suits their interests, or that the ne bis in idem (double jeopardy) principle might be breached in case of concurrent sanctions.

5.15 The EESC recommends that the five-year timeframe mentioned in Article 47(2) should be reduced due to the sector's rapid growth.

Brussels, 13 February 2013. The President of the European Economic and Social Committee Staffan NILSSON

(1) OJ L 91, 7.4.1999, p. 10.

(2) OJ C 73, 9.3.1998, p.10.

(3) See Council Decision 90/683/EEC (OJ L 380, 31.12.1990, p.13) and Council 93/465/EEC (OJ L 220, 30. 8.1993, p. 23), now repealed.

(4) OJ L 218, 13.8.2008, p. 30 and 82.

(5) OJ C 120, 16.5.2008, p. 1.

(6) OJ C 181, 21.6.2012, p. 105.