Report from the Commission to the Council and the European Parliament second Progress Report on the operation of Directive 1999/5/EC, on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity
Date: 2010-02-09
Institutions: European Commission
Subjects: application of EU law, harmonisation of standards, regulation of telecommunications, report, safety standard, technical standard, telecommunications, telecommunications equipment

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EUROPEAN COMMISSION 

Brussels, 9.2.2010 
COM(2010)43 final 

REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN 
PARLIAMENT 

SECOND PROGRESS REPORT ON THE OPERATION OF DIRECTIVE 1999/5/EC, 
on radio equipment and telecommunications terminal equipment and the mutual 
recognition of their conformity  

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REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN 
PARLIAMENT 

SECOND PROGRESS REPORT ON THE OPERATION OF DIRECTIVE 1999/5/EC, 
on radio equipment and telecommunications terminal equipment and the mutual 
recognition of their conformity 

INTRODUCTION 

1. 
The R&TTE Directive 1999/5/EC (hereafter ‘the Directive’)1 establishes a framework for the 
placing on the market, free movement and putting into service in the European Union of radio 
equipment and telecommunications terminal equipment. It addresses a large part of the €90bn 
market  for  telecommunications  and  radio  equipment,  covering  inter  alia  mobile  phones, 
mobile  network  transmitters,  fixed  telephones  and  data  transmission  modems.  Non-radio 
telecommunications infrastructure such as switching systems is excluded from its scope. The 
Directive is applied in the European Economic Area (EEA) and also in Turkey in application 
of the EU-Turkey Customs Union agreement. Switzerland has aligned its national legislation 
with the provisions of the Directive on a voluntary basis.  

The  equipment  covered  by  the  Directive  is  also  strongly  affected  by  other  European 
legislation, such as the electronic communications regulatory framework2, and in particular by 
the  Radio  Spectrum  Decision3  and  its  implementing  measures  for  the  progressive 
harmonisation of spectrum. 
This 2nd progress report is being issued according to Article 17 of the Directive which calls 
for  the  Commission  to  periodically  report  on  the  operation  of  the  Directive  and  cover  inter 
alia progress on drawing up the relevant standards as well as any problems that have arisen in 
the course of implementation. 

The report is based on: 

–  a  public  consultation  held  in  2007  when  60  respondents  answered  around  120 

questions on the operation of the Directive4,  

–  the proceedings of the standing Committee (TCAM5),  

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OJ L 91, 7.4.1999, p. 10–28 
Directive  2009/140/EC  of  the  European  Parliament  and  the  Council  of  25  November  2009  amending 
Directives  2002/21/EC  on  a  common  regulatory  framework  for  electronic  communications  networks 
and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and 
associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and 
services  as  well  as  Directive  2009/136/EC  of  the  European  Parliament  and  of  the  Council  of  25 
November  2009  amending  Directive  2002/22/EC  on  universal  service  and  users'  rights  relating  to 
electronic communications networks and services, Directive 2002/58/EC concerning the processing of 
personal  data  and  the  protection  of  privacy  in  the  electronic  communications  sector  and  Regulation 
(EC)  No  2006/2004  on  cooperation  between  national  authorities  responsible  for  the  enforcement  of 
consumer protection laws  
Decision  on  a  regulatory  framework  for  radio  spectrum  policy  in  the  European  Community 
(RadioSpectrum Decision) (676/2002/EC) 
Summary of the replies on http://ec.europa.eu/enterprise/rtte/index_en.htm 
Telecommunications Conformity Assessment and Market Surveillance Committee 

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–  feedback  from  national  market  surveillance  authorities  and  from  other 

stakeholders.  

This  report  draws  attention  to  some  difficulties  in  the  operation  of  the  Directive  in  view  to 
achieve  its  desired  effects.  Possible  remedies  will  be  addressed  in  a  comprehensive  Impact 
Assessment  in  the  context  of  a  future  revision  of  the  Directive,  for  which  a  Commission 
proposal is scheduled for end 2010. 

2. 

THE OPERATION OF THE DIRECTIVE 

2.1. 

Scope of the Directive 

The legal concept of “terminal”, defined in Article 2, is an essential element of the scope of 
the  Directive.  The  distinction  between  ‘terminal’  and  ‘telecommunications  network’  was 
introduced  in  EU  legislation  in  the  1990’s  in  order  to  prevent  the  joint  dominance  of 
monopolistic  network  operators  and  associated  manufacturers  of  user  equipment.  This 
distinction,  and  the  obligation  of  operators  to  publish  the  technical  specifications  of  their 
network  interfaces,  as  required  by  Article  4.2  of  the  Directive,  is  intended  to  open  the  user 
equipment  market  to  all  manufacturers  and  thus  encourage  competition  and  innovation. 
Following evolutions in technology and in market conditions, the relevance of this distinction 
with  regard  to  fostering  competition  deserves  to  be  re-examined.  Moreover,  related 
competition  issues  now  also  include  aspects  of  access  to  content  that  may  often  be 
independent of user terminal providers or of subscription to telecommunication services. 

The  scope  of  the  Directive  needs  to  be  reviewed.  For  instance,  the  radio  and  TV  receivers 
which are not able to transmit by radio or cable do not fall within the scope of the Directive, 
while those which are able to transmit signals do. 

Some rather specific pieces of radio equipment are an integral part of systems also covered by 
other security and safety EU legislation or by international treaties. This is especially the case 
with  maritime,  land  and  aeronautic  safety  systems.  These  items  do  not  fit  well  with  the 
R&TTE procedures and standardisation processes. 

2.2. 

Definition of essential requirements 

The Directive contains in Article 3 a number of essential requirements to protect health and 
safety,  ensure  electromagnetic  compatibility  and  to  avoid  harmful  interference.  The  way  in 
which  these  essential  requirements  are  defined  in  the  Directive  is  generally  considered 
appropriate by stakeholders. However, the concept of ‘intended use’ of the equipment seems 
to create some confusion between the essential requirements of the Directive and other public 
interests, such as public security or freedom of communication, which are beyond its scope. 

Article  3.3(e)  allowing  the  EU  to  impose  additional  requirements  on  access  to  emergency 
services  was  effectively  applied  a  number  of  times  in  relation  to  specific  maritime  and 
terrestrial safety equipment. 

2.3. 

Harmonised standards supporting the Directive 

The  Directive  is  based  on  the  “New  Approach”  principle:  compliance  with  harmonised 
standards gives presumption of conformity with the essential requirements of the Directive, a 
possibility  which  has  generally  been  used  by  manufacturers  of  R&TTE  equipment. 
Alternative ways to conform with the essential requirements have remained an exception. A 

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comprehensive  set  of  harmonised  standards  is  regularly  published  in  the  Official  Journal, 
currently  adding  up  to  more  than  200  standards.6  Standards  thus  play  a  crucial  role  with 
regard to the application of the Directive. 

Only  very  few  problems  have  been  encountered  with  standards  failing  to  address  essential 
requirements  of  the  Directive  and,  consequently,  the  need  for  the  Commission  to  issue 
guidance to standardisation bodies has not been frequent. For example, in 2007 some 5 GHz 
WiFi RLAN systems7 interfered with meteorological radars operating in the same band and in 
conformity with the harmonised standard. The Commission and TCAM intervened by issuing 
guidance  to  review  the  related  harmonised  standards  and,  in  consultation  with  stakeholders, 
agreed  a  migration  path  for  adaptation  of  WiFi  RLAN  products  prior  to  mass  market 
deployment. Following the 2003 allocation of the 5GHz band to mobile use (i.e. Wifi RLAN 
use) at global level in addition to the meteorological services, the full range of meteorological 
applications  were  not  taken  into  account  in  European  standardisation.  This  case  thus 
highlights  the  need  for  all  interested  parties  in  spectrum  sharing  to  participate  in 
standardisation.  

There has also been some evidence suggesting that harmonised standards may sometimes be 
too stringent. Market surveillance campaigns have shown that a proportion of unlicensed low 
power  devices  appear  to  be  non  conformant  with  the  harmonised  standards  (cf.  §  2.5). 
However, the recorded level of harmful interference does not seem to have been affected by 
this.  

The  consultation  confirmed  the  existence  of  barriers  preventing  SMEs  and  consumers  from 
fully  participating  in  the  standardisation  process  in  the  telecom  area,  as  more  generally 
discussed in two recent Commission Communications8,9. The consultation also revealed that 
transparency  of  the  standardisation  process  should  be  improved.  Furthermore,  the  area  of 
radio  equipment  partially  shows  the  difficulties  of  the  EU  to  lead  global  standardisation,  as 
noted  in  the  recent  Commission  White  Paper  on  ICT  Standardisation10.  The  process  for 
allocating  frequency  bands  and  subsequent  usage  is  different  between  continents  and 
standards are not always interchangeable.  

The  consultation  also  emphasized  that  timing  of  standardisation  work  and  related  processes 
leading to regulatory decisions on spectrum use could be improved in order to allow technical 
work  to  be  based  on  a  stable  regulatory  framework.  This  would  require  a  stronger 
commitment by administrations to participate in ETSI at different levels.  

Finally,  the  consultation  highlighted  a  need  to  move  towards  more  flexible  and  generic 
harmonised standards which are less specific to a technology or an application. 

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http://ec.europa.eu/enterprise/rtte/harstand.htm. 

Radio Local Access Networks. 

COM/2008/133 final: Communication from the Commission to the Council, the European Parliament 
and  the  European  Economic  and  Social  Committee  –  Towards  an  increased  contribution  from 
standardisation to innovation in Europe. 
COM/2008/394 final: Communication from the Commission to the Council, the European Parliament, 
the European Economic and Social Committee and the Committee of the Regions - ‘Think Small First’ 
– A ‘Small Business Act’ for Europe. 
COM(2009)  324  final :  WHITE  PAPER  Modernising  ICT  Standardisation  in  the  EU  -  The  Way 
Forward 

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2.4. 

Notified Bodies (NBs) 

Where  harmonised  standards  are  not  yet  available  or  have  not  been  followed  by  the 
manufacturer,  the  Directive  assigns  to  Notified  Bodies  the  role  of  assisting  manufacturers 
throughout the conformity assessment process, in particular to issue opinions on the technical 
documentation  of  products.  In  practice  most  NB  opinions  concern  products  which  use 
harmonised standards to ensure compliance with the essential requirements of the Directive, 
but  for  which  manufacturers  -  due  to  the  often  high  technical  complexity  of  conformity 
assessment - prefer to seek an endorsement from an experienced and qualified body. 

A large number of NBs have been notified by Member States to the Commission11. NBs are 
based in the EEA and also in countries with which the European Union has concluded Mutual 
Recognition  Agreements.  NBs  organise  themselves  on  a  voluntary  basis  under  the R&TTE 
Compliance  Association.12  Specific  problems 
the  co-operation  between 
manufacturers and NBs have not been reported. 

regarding 

2.5.  Market  Surveillance  Authorities  (MSAs),  enforcement  of  the  Directive  and 

compliance 

Every year MSAs in charge of market surveillance notify to the Commission approximately 
50 cases of non-compliant equipment banned from their national market under the safeguard 
clause procedure foreseen in Article 9. 

MSAs  co-operate  actively  at  EU  level  and  regularly  meet  in  the  R&TTE  Administration 
Cooperation  (ADCO)  group.  The  ADCO  group  coordinates  joint  surveillance  campaigns, 
and  should  now  take  advantage  of  the  provisions  introduced  by  the  New  Legal  Framework 
(NLF)13  for  bringing  its  cooperation  to  a  new  level.  The  past  campaigns  already  flagged 
concerns about compliance levels in certain families of products. In particular, a very low 
level  of  compliance  to  the  provisions  of  the  Directive  was  observed  among  low  power 
radio devices and to a lesser extent in other areas. A number of importers and manufacturers 
of  this  equipment  are  not  aware  of  the  Directive  or  deliberately  ignore  it.  A  number  of 
stakeholders  noted  that  this  has  not  led  to  obvious  risks  for  consumer  safety  and  for  the 
integrity  of  telecommunication  networks,  or  to  an  increase  in  harmful  interference. 
Companies who comply with the Directive regard non-compliant products as causing unfair 
distortion of competition. 

Traceability of defective products is an issue of concern: market surveillance authorities can 
often  not  identify  the  manufacturer  or  the  person  responsible  for  placing  a  product  on  the 

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http://ec.europa.eu/enterprise/newapproach/nando/index.cfm?fuseaction=directive.notifiedbod 
y&dir_id=22&type_dir=NO%20CPD&pro_id=99999&prc_id=99999&ann_id=99999&prc_anx=99999 

http://www.rtteca.com/ 

Decision  768/2008/EC  of  the  European  Parliament  and  of  the  Council  of  9  July  2008  on  a  common 
framework for the marketing of products and repealing Council Decision 93/465/EEC, 

Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out 
the  requirements  for  accreditation  and  market  surveillance  relating  to  the  marketing  of  products  and 
repealing Regulation (EEC) No 339/93 

Regulation (EC)  No  764/2008  of  the  European  Parliament  and  of  the  Council  of  9  July  2008  laying 
down  procedures  relating  to  the  application  of  certain  national  technical  rules  to  products  lawfully 
marketed in another Member State and repealing Decision No 3052/95/EC. 

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market, especially for smaller market players. Strong, often costly effort is spent on finding 
manufacturers or importers, preventing a more efficient allocation of the limited resources of 
MSAs. In the consultation a compulsory on-line registration of either the manufacturers or 
their products and/or an adaptation of the Directive to the New Legal Framework (NLF) 
have been suggested to improve traceability. 

The Directive provides for a safeguard measure (Article 9) as e.g. a “sales ban’. The existing 
procedure  allows  for  national  measures  only  with  a  notification  to  the  Commission.  This 
procedure has been considered as too lengthy since it can usually not be completed before the 
end  of  the  life  cycle  of  the  non-compliant  product.  In  its  Opinion  on  “Streamlining  the 
regulatory environment for the use of spectrum” the Radio Spectrum Policy Group (RSPG)14 
recommended  investigating  the  possibility  of  an  extension  of  a  national  safeguard  clause  to 
the whole of the EU market, where appropriate15. 

2.6. 

Unused and less used provisions 

Application  of  Articles  3.3(a-d)  and  3.3(f)  allowing  the  EU  to  impose  additional  public 
interest  requirements  such  as  to  combat  fraud  or  to  ensure  interoperability  or  privacy,  has 
been considered on a number of occasions but was finally discarded. 

Notifications of disconnection of terminals under article 7.4 and notifications of prohibition of 
compliant equipment under article 9.5 have not been received. 

When national radio interfaces are harmonised as a result of technical implementing measures 
under the Radio Spectrum Decision16 it is redundant to assess their equivalence under article 
4.1 of the Directive in view of an equipment class. 

There  are  eighteen  administrative  provisions  in  the  Directive  and  the  relevance  of  some  of 
them has been questioned. In particular, there are various kinds of very small equipment such 
as  RFID  tags  or  cochlear  implants,  which  emit  radio  signals  that  are  unlikely  of  causing 
harmful  interference.  Applying  all  the  administrative  provisions  in  the  Directive  to  those 
rather  benign  devices  may  not  be  justified,  notably  due  to  the  administrative  burdens 
involved. Benign devices require spectrum to be able to operate, it is therefore necessary to 
take into account regulatory decisions concerning spectrum for these devices.  

2.7. 

Coherence with other provisions of EU law 

Increasing numbers of mass market products, such as toys, now include a radio device. This 
causes  complex  situations,  multiple  conformity  assessment  procedures  and  non-harmonised 
interpretations and practices between Member States.  
While the Directive has strong complementarities with the Radio Spectrum Decision17, there 
are  however  some  issues  of  demarcation  and  consistency  between  both  legal  instruments, 
which  create  some  uncertainties  in  their  application.  Also  the  outcome  of  the  review  of  the 
electronic  communications  regulatory  framework18  and  Directives  such  as  RoHS19  or 

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The  Radio  Spectrum  Policy  Group  (RSPG)  is  an  advisory  group  to  the  European  Commission 
composed of Member States’ representatives in charge spectrum policy (see: http://rspg.ec.europa.eu/). 
Recommendation 5.19 in document RSPG0 8-246 
(http://rspg.ec.europa.eu/rspg_opinions/index_en.htm) 
op. cit., p. 2 
op. cit., p. 2 
op. cit., p. 2 
Restriction of Hazardous Substances Directive (2002/95/EC). 

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WEEE20  as  well  as  the  implementing  measures  under  the  EcoDesign  Directive 2005/32/EC, 
have  an  important  impact  on  R&TTE  equipment.  The  R&TTE  Directive  is  not  fully 
consistent  with  these  legal  texts,  and  this  leads  again  to  problems  of  application  and 
interpretation. 

2.8. 

TCAM and the consistent application of the Directive  

The  Committee  of  the  Directive  has  been  holding  around  three  two-day  meetings  per  year, 
with  the  participation  of  virtually  all  the  Member  States.  While  in  the  initial  years  of  the 
Directive  the  Committee  mainly  discussed  matters  of  common  application,  the  Committee 
now  increasingly  deals  with  regulatory  and  standards-related  issues,  with  enforcement 
difficulties,  and  with  the  potential  application  of  Article  3(3),  which  makes  it  possible  to 
stipulate additional requirements. 

Member States have agreed in TCAM on a harmonised approach to specific issues. However, 
agreement  on  a  common  approach  has  not  always  been  possible,  in  particular  in  relation  to 
innovative  technologies.  This  may  have  driven  some  companies  and  investors  to  introduce 
innovative products outside of Europe. 

There  has  been  no  common  criterion  on  notifications  under  Article  6.4  of  equipment  using 
frequency bands that have not been harmonised. Since January 2008, however, the One-Stop 
Notification  system  (on-line)  has  alleviated 
the  consequences  of  existing  national 
discrepancies without fully resolving them. 

During  the  consultation,  some  stakeholders  expressed  the  wish  that,  for  some  details  of  the 
operation of the Directive, TCAM conclusions be binding on all Member States. 

2.9. 

Technological challenges 

The  Directive  has  allowed  the  addressing  of  most  technological  developments.  However, 
particularly  challenging  is  the  case  of  equipment  reconfigured  during  operations  by  users 
and/or an entity other than the initial manufacturer, such as ‘Software Defined Radio’ (SDR), 
or reconfigurable cognitive radio. The current Directive, which assumes that a single legal 
entity designs the equipment and ensures its compliance once and for all, is not well adapted 
to address this flexibility.  

2.10.  The  R&TTE  Directive  and  the  general  framework  for  competitiveness  and 

innovation in this area  

Since  its entry into  force the  Directive has been instrumental in consolidating the Internal 
Market for products within its scope. The framework works well for placing on the market 
equipment  using  established  technologies,  and  also  facilitates  their  evolution,  in  particular 
through the timely revision of harmonised standards. 

The Directive appears to be less suited to allow the placing on the market of products based 
on fundamentally new radio technologies not yet covered by harmonised standards. In the 
absence of harmonised standards, the manufacturer has to consult a NB for placing a product 
on  the  market.  In  its  Opinion  on  “Streamlining  the  regulatory  environment  for  the  use  of 
spectrum”21.  the  RSPG  noted  “that  stakeholders  (notified  bodies,  manufacturers…)  seem 

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Waste Electrical and Electronic Equipment Directive (2002/96/EC). 

RSPG08-246 (http://rspg.ec.europa.eu/rspg_opinions/index_en.htm)  

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unable to establish, with any certainty, the conformity of radio equipment with the essential 
requirements of the R&TTE Directive where a harmonised standard has not been applied or 
does  not  exist.”  Regulators  also  tend  to  submit  innovative  radio  products  to  conservative 
usage constraints within the bands that are allowed. 

Furthermore,  outside  the  scope  of  the  Directive,  but  strongly  linked  to  the  introduction  of 
innovative  radio  technologies,  is  the  issue  that  innovations  may  not  sufficiently  fit  within 
existing spectrum allocations and are therefore legally prevented from being used. Member 
States  do  offer  the  possibility  of  experimental  rights  of  use  which  can  support  the 
development of innovative technologies at national level.  

When moving from the research and development phase to commercial deployment, the lack 
of harmonised standards allowing to place innovative products on the market in compliance 
with  legal  requirements,  and  availability  of  suitable  spectrum  allocations  and  associated 
conditions  of  use  may  create  legal  uncertainty  and  thus  can  deter  potential  investors  in 
technology. However increased flexibility for spectrum use as introduced by the 2009 review 
of the electronic communications regulatory framework may offer a solution to this issue. 

Due  to  these  challenges  related  to  a  complex,  and  somewhat  inflexible  regulatory 
environment,  companies  may  choose  to  move  their  pilot-tests,  pre-commercial  and  initial 
commercial  deployment  to  other  trading  areas,  such  as  the  United  States  of  America.  This 
prevents innovation in radio technologies in Europe from reaching its full potential. 

3. 

CONCLUSIONS 

The  Directive  has  been  instrumental  in  the  completion  of  the  internal  market  for  radio 
equipment,  replacing  thousands  of  national  type-approval  schemes  and  introducing  a  light-
touch  regulatory  regime  facilitating  innovation  and  competition.  Overall,  the  regulatory 
framework set up by the Directive has allowed to achieve its intended goals, i.e. a high 
level of protection of health and safety for users, the electromagnetic compatibility (EMC) for 
telecommunication  terminals  and  radio  equipment  as  well  as  the  avoidance  of  harmful 
interference. 

Regarding  use  of  spectrum,  in  spite  of  the  limited  technical  compliance  observed  in  some 
types of products, there is no evidence of an increase of levels of harmful interference. This 
may suggest that standards may be too stringent, and that a review of the technical approach 
in this area may allow a more intense and efficient use of spectrum. 

There  are  two  main  issues  that  merit  a  more  in-depth  investigation:  market  entrance  for 
innovative  radio  technologies  due  to  the  existing  process  for  putting  in  place  the  necessary 
regulatory decisions concerning spectrum use and harmonised standards, and the traceability 
of the manufacturer or the person responsible for placing products on the market. 

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