CELEX: 51998PC0176
Language: en
Date: 1998-03-26
Title: Amended proposal for a European Parliament and Council Directive on connected telecommunications equipment and the mutual recognition of the conformity of equipment

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                Brussels, 26.03.1998
                                                COM(1998) 176 final
                                                97/0149 (COD)
                             Amended proposal for a
          EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
ON CONNECTED TELECOMMUNICATIONS EQUIPMENT AND THE MUTUAL RECOGNITION OF
                         THE CONFORMITY OF EQUIPMENT
           (presented by the Commission pursuant to Article 189 a (2)
                               of the EC-Treaty)
 ---pagebreak---  ---pagebreak---                                            SUMMARY
On 29 January 1998, the European Parliament approved the Commission proposal for a
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on connected telecommunications
equipment and the mutual recognition of the conformity of equipment (COM(97)257) with
amendments (PE A4-0023/98). This modified proposal takes into account the amendments
adopted by the European Parliament, which are accepted by the Commission.
The Directive will create the single market for telecommunications terminal and radio equipment
and proposes a substantial relaxation of the regulations governing the placing on the market, the
free movement and the putting into service of such equipment. The Directive will replace two
Council Directives (91/263/EEC1 - telecommunications terminal equipment and 93/97/EEC2 -
satellite earth station equipment), simplify the application of two other Council Directives
(93/68/EEC3 - conformity marking and 89/336/EEC4 - electromagnetic compatibility) and
replace a large number of national regulations.
The issues of concern to the European Parliament are:
      •  The role of harmonised standards (7, 8,10);
      •  The licensing of use of radio equipment (6, 15);
      •  Access of disabled people to telecommunications (4, 8);
      •  Reciprocity with third countries (19);
      •  Transparency of implementation of the Directive (9, 10, 15,16,17, 18);
      •  Exclusion of self-built radio amateur equipment (5, 8);
      •  Essential requirements and network protection (8,13);
      •  Strengthening the role of industry in the implementation of this Directive (16).
 19 Amendments were formulated on which the Commission has taken the following position:
acceptable                                             I 1, 2, 3,4, 5, 9,17,18
acceptable in part or in principle                       8,10,13, 15,16,20,21, 23
not acceptable                                           6, 7,19
 1
      OJNoL 128, 23.5.1991, p. 1.
2
     OJ No L 290, 24.11.1993, p. 1.
3
     OJ No L 220, 30.8.1993, p. 1.
4
     OJNoL. 139, 23.5.1989, p. 19.
 ---pagebreak---                                     EXPLANATORY MEMORANDUM
 The Commission hereby presents a modified proposal for a European Parliament and Council
 Directive on radio and telecommunications terminal equipment and the mutual recognition of
 their conformity. The modified proposal incorporates those amendments proposed by the
 European Parliament as First Reading which were accepted by the Commission.
 INTRODUCTION
 a)      Background
         The Commission adopted its proposal on 4 June 1997 and it was formally transmitted to
         the EP and the Council on 6 June 19975.
         The Economic and Social Committee gave a favourable Opinion on 10 December 1997.
         The European Parliament adopted a favourable Resolution at its First Reading on
         29 January 1998 and proposed 23 amendments to the Commission proposal6.
 b)      Purpose of the Directive
         The Directive will create the single market for telecommunications terminal and radio
         equipment and proposes a substantial relaxation of the regulations governing the placing on
         the market, the free movement and the putting into service of such equipment. The
         Directive will replace two Council Directives (91/263/EEC7 - telecommunications terminal
         equipment and 93/97/EEC8 - satellite earth station equipment), simplify the application of
         two other Council Directives (93/68/EEC9 - conformity marking and 89/336/EEC10 -
         electromagnetic compatibility) and replace a large number of national regulations.
         The major elements of the new Directive are:
       • Enlargement of the range of equipment covered with the inclusion of radio equipment;
       • A set of new definitions which will make the Directive valid well into the future by
           taking into account the liberalisation of infrastructures and competition between
           operators;
5
  O J C 2 4 8 , 14/08/1997 p. 4
6
  A4-0023/96, PV 29-01-98
7
      OJ No L 128, 23.5.1991, p. 1.
8
      OJ No L 290, 24.11.1993, p. 1.
9
      OJNo L 220, 30.8.1993, p. 1.
10
      OJ No L. 139, 23.5.1989, p. 19.
 ---pagebreak---      • The development of the concept of essential requirements specific to telecommunications
        to take into account technological trends;
     • A flexible decision-making process whereby future network infrastructures and'systems
        can be readily covered;
     • A less onerous conformity assessment regime based upon the principle of manufacturer's
        declarations.
      The Directive complements other legislative developments in telecommunications and is a
      response to the inevitable changes to the radio and telecommunications terminal equipment
      market caused by the liberalisation of the telecommunications infrastructures and services.
EP AMENDMENTS ACCEPTED BY THE COMMISSION
      Of the 19 amendments adopted by the European Parliament at First Reading, the
      Commission accepted 8 in full and 8 in part or in principle, making a total of 16:
       Amendments accepted in full                            1,2, 3,4, 5, 9,17,18
       Amendments accepted in part or in part or in 8,10,13,15,16,20, 21, 23
       principle
      The Commission accepted those amendments which:
      • reinforce the importance to maximise the classes of equipment covered by the Directive;
      • clarify the procedures on dealing with radio equipment;
      • introduce a consultation mechanism where equipment considered non-compliant with
         the Directive is withdrawn from the market;
      • introduce possibilities for network operators to disconnect equipment in special
         circumstances;
      • further clarify the text in a manner consistent with the aims of the Directive;
      • are consistent with other EU legislation.
EP AMENDMENTS NOT ACCEPTED BY THE COMMISSION
The Commission has not accepted 4 amendments and parts of 10 other amendments. The
reasons are given below and the amendments are placed in categories:
      Limitation of coverage of putting into service of equipment not operating in
      harmonised frequency bands (amendment 6)
      The Commission recognises the fact that the usage of radio equipment is governed by
      authorisations and that they are in general given on a national basis. Directive 91/263/EEC
      provides for community-wide authorisations for a limited class of equipment, operating in
 ---pagebreak--- harmonised frequency bands. Since on the one hand there is equipment, which does not
operate in harmonised frequency bands but for which it is possible to provide a
Community wide authorisation scheme and, whereas, on the other, there is equipment
operating in harmonised frequency bands for which the putting into service is nonetheless
authorised on a national level, the amendment would unnecessarily restrict the scope of the
Directive.
Usage of harmonised standards (amendments 7,10 (part)
Although it may not have been the intention of the European Parliament to render
mandatory harmonised standards where they exist, the amendments 7 and 10 would have
this effect. The principle that the usage of harmonised standards should be promoted is
fully supported but is already embedded by virtue of the more onerous conformity
assessment procedure, which applies when harmonised standards are not used.
Making applicable the essential requirement enabling disabled people to use all
equipment covered by this Directive (amendment 8 (part)
The Commission agrees with the European Parliament that the disabled should have access
to telecommunication services but is of the opinion that, in principle, market forces should,
and will, ensure this. Where the market fails, regulators should however have a possibility
to intervene and to enforce usability on certain classes of products. The European
Parliament proposes to apply this requirement to all equipment. This is felt unnecessary
for classes where the market will ensure usability. For other classes of products
(e.g. professional equipment) such a requirement would be inappropriate.
Strengthening of the essential requirements and leaving selection of requirements to
ETSI (amendment 8 (part))
Although the Commission fully agrees with the Parliament that it is up to ETSI to interpret
the essential requirements into harmonised standards, it is the task of the regulators to
define which requirements apply. The selection of which special essential requirements
would apply is, therefore, to be made by the Commission after consultation of the TCAM.
Amendment 8 also proposes making the requirement "misuse of network resources causing
an unacceptable degradation of service" obligatory for all equipment. The Commission
understands the reasoning behind making it obligatory and would expect terminal
equipment to comply with it. It is, however, difficult to translate this requirement into
harmonised standards as the origin of degradation of service is not necessarily a result of
faulty elements in the terminal equipment. For this reason, the Commission feels the
requirement should be kept optional.
A requirement to ensure that equipment properly interworks with the network is considered
an aspect of product quality and not a necessary feature. Equipment which will not
properly interwork with the network does not necessarily cause problems to that network.
Market forces would ensure that such products are unsuccessful.
 ---pagebreak--- Specific provisions on radio amateur equipment (amendments 8 (part)
Some amendments reflect the concerns of the radio amateur community, that self-built
equipment would be subjected to the conformity assessment procedures of the Directive.
This equipment is not placed on the market and therefore not covered by this Directive.
The risks associated with such equipment are regulated via the licenses which radio
amateurs need to be allowed to put such equipment into service. Making special
provisions in this Directive to exclude such equipment are not necessary.
Amendment 8 proposes introducing limitations on the technical requirements which can be
imposed on commercially built radio amateur equipment placed on the market. Such a
provision would be contrary to the principles of the new approach which leave such an
assessment to the standardisation organisations.
Extension of markings on equipment (amendment 15 (part))
The European Parliament proposes adding references to the notified bodies and harmonised
standards to the marking. Extended marking beyond the CE mark needs to be justified. It
only seems justified for certain classes of radio equipment, operating in non-harmonised
frequency bands and thus should not be the general rule.
Transparency of procedures of the TCAM (amendment 16 (part))
The Community is bound by Council Decision 87/373/EEC which does not allow for the
proceedings of such Committees to be made public.
Reciprocity (amendment 19)
The European Parliament proposes keeping in place the existing Directives, (which are
onerous in both requirements and conformity assessment procedures), for products
originating from countries not providing reciprocal access for products from the
Community. Such a provision is not in line with the Most Favoured Nation principal and
the National Treatment Principal of the GATT and the TBT code and is discriminatory.
The maintenance of two very different legal regimes is, in addition, very costly and,
therefore, quite undesirable.
Introduction of a right to disconnect (amendment 20 (partly accepted))
Refusal of connection can be accepted if equipment seriously affects the operation, of a
network. Usage of such a measure should, however, be controlled by the regulators in
order to avoid abuse by operators. To only allow it when the user can be offered an
alternative solution does not provide sufficient guarantees to avoid such abuse.
Extension of liabilities (amendments 23)
The European Parliament proposes that manufacturers should be liable not only for direct
economic damage, but also for indirect damage and that they be liable towards any party
suffering damage. This seems to exclude that other parties could be liable as well
(e.g. network operators who have not specified the characteristics of their networks
properly). The proposal might have unforeseen side effects and the view is taken,
 ---pagebreak---       therefore, that these issues continue to be handled under the existing national liability
      legislation.
      Where a product manufactured in the Community for other markets is re re-imported into
      the Community, both the importer and the manufacturer are liable for that product. If the
      product was not intended to be used in the Community and the importer is, or should have
      been aware of it, it is up to the courts to determine to what extent the producer should pay
      compensation for damages caused by the product.
CONCLUSIONS
The Commission has accepted 16 of the 19 amendments proposed by the European Parliament at
First Reading either in whole, in part or in principle.
In accordance with Article 189a paragraph 2 of the EC Treaty, the Commission amends its initial
proposal, incorporating these amendments.
 ---pagebreak---                                     AMENDED PROPOSAL FOR A
                         EUROPEAN PARLIAMENT AND COUNCIL
                                          mEE£TLY£
                                                ON
                           RADIO AND TELECOMMUNICATIONS TERMINAL
                       EQUIPMENT AND THE MUTUAL RECOGNITION OF THEIR
                                          CONFORMITY
                    Original text                                     Amended text
                                         Recital 3 a (new)
(new)                                                Whereas, given the increasing importance of
                                                     telecommunications terminal equipment and
                                                     networks using radio transmission besides
                                                     equipment connected through wired links,
                                                     any regulation on the manufacturing,
                                                     marketing and use of R&TTE should cover
                                                     both classes of such equipment;
                                            Recital 5
Whereas the electromagnetic compatibility Whereas the electromagnetic compatibility
related essential requirements laid down by related essential requirements laid down by
Council Directive 89/336/EEC of 3 May 1989 Council Directive 89/336/EEC of 3 May
on the approximation of the laws of 1989 on the approximation of the laws of
Member States relating to electromagnetic Member States relating to electromagnetic
compatibilityM,       as     last  amended     by compatibility12, as last amended by
Directive 93/68/EEC, are sufficient to cover Directive 93/68/EEC, are sufficient to cover
connected telecommunications equipment:              radio and telecommunications terminal
                                                     equipment;
                                            Recital 6
Whereas the provisions of Council Directive Whereas the provisions of Council Directive
73/23/EEC of 19 February 1973 on the 73/23/EEC of 19 February 1973 on the
harmonization of the laws of the Member States harmonization of the laws of the Member I
relating to electrical equipment designed for use States relating to electrical equipment
within certain voltage limits13, as last amended designed for use within certain voltage
by Directive 93/68/EEC, are sufficient to cover limits14, as last amended by Directive
connected      telecommunications      equipment. 93/68/EEC, are sufficient to cover radio and
whatever the operating voltage limits;               telecommunications terminal equipment,
                                                     whatever the operating voltage limits;
 n   OJNoL 139, 23.5.1989, p. 19.
 12  OJNoL 139,23.5.1989, p. 19.
 13  OJ No L 77, 26.3.1973, p. 29.
 14  OJNoL 77, 26.3.1973, p. 29.
 ---pagebreak---                                              Recital 8
 Whereas unacceptable degradation of service to Whereas unacceptable degradation of service
 other     than    the    user     of   connected to other than the user of radio and
 telecommunications equipment should be telecommunications terminal equipment
prevented;                                           should be prevented;
                                            Recital 10
 Whereas        connected      telecommunications Whereas the most efficient possible use
 equipment can occupy an excessive proportion according to the state of the art of limited
 of limited resources such as radio frequency resources such as the radio frequency
 spectrum;                                           spectrum is to be ensured and promoted;
                                            Récita    12
 Whereas the essential requirements relevant to a    Whereas the essential requirements relevant
class     of     connected     telecommunications    to a class of radio and telecommunications
equipment should depend on the nature and the        terminal equipment should depend on the
needs of that class of equipment; whereas these      nature and the needs of that class of
requirements must be applied with discernment        equipment; whereas these requirements must
in order not to inhibit technological innovation     be applied with discernment in order not to
or the meeting of the needs of a free-market         inhibit technological innovation or the
economy;                                             meeting of the needs of a free-market
                                                     economy;
                                            Recital 13
Whereas care should be taken that connected Whereas care should be taken that radio and
telecommunications equipment should not telecommunications terminal equipment
represent an avoidable hazard to health;            should not represent an avoidable hazard to
                                                    health;
                                            Récita   14
Whereas telecommunications are important to         Whereas telecommunications are important to
the well-being and employment of people with        the well-being and employment of people
disabilities who represent a substantial and        with disabilities who represent a substantial
growing proportion of the population of Europe;     and growing proportion of the population
                                                    of Europe; whereas telecommunications
                                                    equipment should therefore whenever
                                                   possible be designed in such a way that
                                                    disabled people may use it without or with
                                                   only minimal adaptation:
                                           Recital 15
Whereas        connected      telecommunications Whereas radio and telecommunications
equipment can provide certain functions terminal equipment can provide certain
required by emergency and security services;        functions required by emergency and security
                                                   services;
                                           Recital 16
Whereas        connected      telecommunications Whereas radio and telecommunications
equipment should not permit the infringement of terminal equipment should not permit the
 ---pagebreak--- individual privacy;                                     infringement of individual privacy;
                                                Récita   1!
Whereas it is desirable to have harmonized              Whereas it is desirable to have harmonized
standards at European level to safeguard the            standards at European level to safeguard the
public interest in connection with the design and       public interest in connection with the design
manufacture of connected telecommunications             and       manufacture      of     radio     and
equipment: whereas such harmonized standards            telecommunications terminal equipment;
may be used to demonstrate conformity to the            whereas such harmonized standards may be
essential requirements;                                 used to demonstrate conformity to the
                                                        essential requirements;
                                                Récita   19
Whereas Community law provides that obstacles           Whereas Community law provides that
to the free movement of goods within the                obstacles to the free movement of goods
Community, resulting from disparities in                within the Community, resulting from
national legislation relating to the marketing of       disparities in national legislation relating to
products, can only be justified where any               the marketing of products, can only be
national requirements are necessary and                 justified where any national requirements are
proportionate;       whereas,       therefore,    the   necessary and proportionate; whereas,
harmonization of laws must be limited only to           therefore, the harmonization of laws must be
those requirements necessary to satisfy the             limited only to those requirements necessary
essential requirements relating to connected            to satisfy the essential requirements relating
telecommunications equipment: whereas these             to radio and telecommunications terminal
requirements must replace the relevant national         equipment; whereas these requirements must
requirements;                                           replace the relevant national requirements;
                                                Récita  20
Whereas        connected         telecommunications     Whereas radio and telecommunications
equipment which complies with the relevant              terminal equipment which complies with the
essential requirements should be permitted to           relevant essential requirements should be
circulate freely and be put into service in all         permitted to circulate freely and be put into
Member         States;       whereas       connected    service in all Member States; whereas radio
telecommunications equipment which does not             and telecommunications terminal equipment
comply with           the     applicable     essential  which does not comply with the applicable
requirements should be regarded as defective            essential requirements should be regarded as
products within the meaning of Council                  defective products within the meaning of
Directive 85/374/EEC of 25 July 1985 on the             Council Directive 85/374/EEC of 25 July
approximation of the laws, regulations and               1985 on the approximation of the laws,
administrative provisions of the Member States          regulations and administrative provisions of
concerning liability for defective products15;          the Member States concerning liability for
                                                        defective products 16
 15
     OJ No L 210, 7.8.1985, p. 29.
 16
     OJ No L 210, 7.8.1985, p. 29.
                                                     10
 ---pagebreak---                                               Recital 20a (new)
                                                         Whereas this Directive does not restrict the
                                                         non-commercial building, transformation or
                                                         use of R&TTE in Amateur Radio and
                                                         Satellite services by licensed radio amateurs;
                                                  Article 1
                                               Scope and aim
 This Directive establishes a European This Directive establishes a European
 Community regulatory framework for the Community regulatory framework for the
 placing on the market, free circulation and placing on the market, free circulation and
 putting       into     service       of     connected putting into service of Radio and
 telecommunications equipment (£IE) which Telecommunications Terminal Equipment
 complies with the essential requirements.               (R&TTE) which complies with the essential
                                                         requirements.
                                                  Article 2
                                                 Definitions
 For the purpose of this Directive the following For the purpose of this Directive the
 definitions shall apply:                                following definitions shall apply:
 (a)    Connected                 Telecommunications (a)        Radio      and      Tejecommunications
        Equipment (CTE)                                         Terminal Equipment (R&TTE)
        Equipment capable of communication by                   Equipment capable of communication
        means of radio transmission utilizing                   by means of radio transmission utilizing
        spectrum allocated to terrestrial/space                 spectrum allocated to terrestrial/space
        radio communication excluding equipment                radio      communication        excluding
        which is intended for exclusive public                 equipment which is intended for
        security use,                                          exclusive public security use,
       or                                                      or
       the relevant components of equipment to                 the relevant components of equipment
       be connected to an Open Network                         to be connected to an Open Network
       Termination        Point,      allowing     this        Termination Point, allowing this
       equipment to interwork with the relevant                equipment to interwork with the
       network;                                               relevant network;
(b)    Open        Telecommunications         Network (b)     Open Telecommunications           Network
       Termination Point (ONTP)                               Termination Point (ONTP)
       A        termination        point      of     a        A       termination     point     of     a
       telecommunications network at which                    telecommunications network at which
       users of the network may connect any                   users of the network may connect any
       conforming                          Connected          conforming             Radio          and
17  OJ No L 109, 26.4.1983, p. 8.
                                                     11
 ---pagebreak---       Telecommunications Equipment of a type                Telecommunications              Terminal
      supported at that ONTP. Connection may                Equipment of a type supported at that
      be by wire, radio, optical or other                   ONTP. Connection may be by wire,
      electromagnetic means. An ONTP                        radio, optical or other electromagnetic
      supports one or more types of CTE. In                 means. An ONTP supports one or more
      exceptional cases in the public interest,             types of R&TTE. In exceptional cases
      ONTP types can be termination points of               in the public interest, ONTP types can
      other than public networks;                           be termination points of other than
                                                            public networks;
(c)   £ I E T yP e
                                                      (c)   R&TTE Type
      The CTE type identifies the type of Open
      Network Termination Point to which the                The R&TTE type identifies the type of
      equipment is to be connected by wire,                 Open Network Termination Point to
      radio, optical or other electromagnetic               which the equipment is to be connected
      means;                                                by wire, radio, optical or other
                                                            electromagnetic means;
(d)   Technical specification
                                                      (d)   Technical specification
      A specification contained in a document
      which describes those characteristics of a            A specification contained in a
      product which implement the applicable                document which describes those
      essential requirements;                               characteristics of a product which
                                                            implement the applicable essential
(e)   Harmonized standard                                   requirements;
A technical specification adopted by a                (e)   Harmonized standard
recognized standards body under a mandate
from the Commission in conformity with the            A technical specification adopted by a
procedures            laid        down            in  recognized standards body under a mandate
Council Directive 83/189/EEC17 for the purpose         from the Commission in conformity with
of establishing a European requirement,               the      procedures       laid     down     in
compliance with which is not compulsory.              Council Directive 83/189/EEC18       for   the
                                                      purpose of establishing a European
                                                      requirement, compliance with which is not
                                                      compulsory.
                                               Article 3
                                       Essential requirements
 l•    The      following      general     essential 1. The R&TTE referred to in Article 2
       requirements are applicable to all CTE:              shall be so constructed that:
                                                           (a)    the equipment, when properly
                                                                  used, does not endanger the health
                                                                  or the safety of the user or any
                                                                  other person;
    OJNoL109, 26.4.1983, p. 8.
                                                   12
 ---pagebreak--- (a)   the essential requirements contained     (b)     the equipment meets the essential
      in Directive 73/23/EEC with respect              requirements         contained      in
      to safety whatever the voltage limits            Directive 73/23/EEC with respect
      oftheCTE;                                        to safety whatever the voltage
                                                       limits of the R&TTE;
(b)   the essential requirements contained
      in Directive 89/336/EEC with respect     (c)     the equipment meets the essential
      to electromagnetic compatibility.                requirements         contained      in
                                                       Directive       89/336/EEC        with
                                                       respect       to      electromagnetic
                                                       compatibility.
                                                 Radio equipment shall be so
                                                 constructed      that     the     equipment
                                                 effectively uses the spectrum allocated
                                                 to          terrestrial/space          radio
                                                 communication and orbital resources, in
                                                 accordance        with       ITU      Radio
                                                 Regulations.
 The specific essential requirements             In accordance with the procedure laid
 applicable to each type of CTE may be           down in Article 12, the Commission
 selected in accordance with the provisions      may decide that Terminal Equipment
 of Article 4 from the following list:           within certain Equipment Class shall be
                                                 so constructed that:
(a)    prevention of misuse of network
       resources causing an unacceptable       (a)     misuse of network resources
       degradation of service to other than            causing         an       unacceptable
       the user oftheCTE;                              deterioration      of    service    is
                                                       prevented;
(b)    interworking via network(s) and
       Community-wide portability between        and/or that
       ONTPs of the same type;
                                               (b)     it interworks via network(s) and
(c)    effective use of spectrum allocated to         can be ported between ONTPs of
      terrestrial/space                 radio         the same type in the Community;
      communication.
                                                and/or that
                                               (c)    it contains safeguards to ensure
                                                      that the individual privacy of the
                                                      user is protected ;
                                                and/or that
                                                (d)        it supports certain features,
                                                ensuring access to safety and
                                                emergency services ;
                                                In the interest of people with special
                                                needs and in accordance with the
                                                procedure laid down in Article 12, the
                                            13
 ---pagebreak---                                                          Commission may decide that Terminal
                                                         equipment, which may be used by
                                                         people with special needs shall support
                                                         certain features.
                     Article 4                                        Article 4
   Identification of relevant specific essential      Publication of specifications of interface
                  requirements                                         points
JL   The Commission shall identify the specific
     essential requirements applicable to each
     CTE type in accordance with the
     procedure laid down in Article 12. In
     selecting     the     applicable     essential
     requirements, the Commission shall give-
     as appropriate, due consideration to:
    (a)    protection of health,
    (b)    features for users with disabilities.
    (c)    features for emergency and security
           services.
    (d)    protection of individual privacy,
     The      applicable      specific    essential
     requirements shall be published in the
     Official Journal of the             European
     Communities.
     Member       States     shall notify        the    Member States shall notify the
     Commission of the types of ONTP which              Commission of the radio interfaces they
     are available or due to become available as        have regulated unless they have been
     soon as they are aware of them. In turn, the       notified pursuant to the provisions of
     Commission shall inform the Committee              Directive 83/189/EEC. After consulting
     referred to in Article 12 (hereinafter             the Committee provided for in Article
     referred to as "the Committee") of existing        12, the Commission shall establish the
     and planned ONTP types.                            equivalence between the interfaces
                                                        notified and shall determine an
     Member States shall ensure that the                equipment category indicator, which
     operators of all networks publish and              shall be published in the Official
     regularly update, accurate and adequate            Journal of the European Communities.
     technical specifications of the available
     ONTPs and the CTE types supported. The             Member States shall notify the
     specifications should be in sufficient detail      Commission of the types of ONTP
     to permit the design of compatible CTE.            which are used by networks offering
                                                        services to the public. Member States
                                                        shall ensure that the operators of
                                                        networks offering services to the public
                                                        publish and regularly update accurate
                                                         and adequate technical specifications
                                                   14
 ---pagebreak---                                                         concerning these network termination
                                                        points. These specifications should be
                                                        in sufficient detail to permit the design
                                                        of compatible terminal equipment
                                         Article 5
                                  Harmonized standards
 When CTE meets the relevant harmonized 1. When R&TTE meets the relevant
 standards whose reference numbers have                 harmonized standards whose reference
 been published in the Official Journal of              numbers have been published in the
 the European Communities, Member                       Official Journal of the European
 States shall presume compliance with                   Communities, Member States shall
 those of the essential requirements referred           presume compliance with those of the
 to in Article 3 and Article 4 as are covered           essential requirements referred to in
 in these standards. At the choice of the               Article 3 and Article 4 as are covered in
 manufacturer and, in particular, in the                these standards. At the choice of the
 absence of a harmonized standard.                      manufacturer compliance with the
 compliance with the relevant essential                 relevant essential requirements can be
 requirements can be demonstrated by                    demonstrated by means of compliance
 means of compliance with a technical                   with      a    technical     specification
 specification appropriate to the relevant              appropriate to the relevant essential
 essential requirements.                                requirements in accordance with the
                                                        procedures provided for in Article 9(4).
2.     Where a Member State or the
       Commission considers that a 2.                   Where a Member State or the
       harmonized standard referred to in               Commission        considers     that     a
       paragraph 1 does not conform to the              harmonized standard or a specification
       selected       specific       essential          referred to in paragraph 1 does not
       requirements referred to in Article              conform to the selected specific
       3m       and    Article 4(1). the                essential requirements referred to in
       Commission or the Member State                   Article 3, which it intends to cover, the
       concerned shall bring the matter                 Commission or the Member State
       before the Committee and initiate the            concerned shall bring the matter before
       procedures described in Article 12.              the Committee.
                                                  After consulting the Committee, and in
                                                  accordance with the procedure provided for in
                                                  Article 12, the Commission may circulate
                                                  guidelines concerning the interpretation of the
                                                  harmonized standard and may publish a list
                                                  of the corrections made to the harmonized
                                                  standard, pending formal correction thereof.
                                                  After consulting the Committee, and in
                                                   accordance with the procedure provided for in
                                                   Article 12, the Commission may withdraw
                                                   the harmonized standards from publication in
                                                   the Official Journal of the European
                                                   Communities.
                                               15
 ---pagebreak---                                        Article 6
                     Placing on the market and putting into service
Member States shall ensure that CTE 1. Member States shall ensure that
which complies with the appropriate               R&TTE which complies with the
essential requirements identified in Article      appropriate essential        requirements
3(1) and (2) and Article 4(1) is permitted        identified in Article 3 is permitted to
to circulate freely and is not subject to         circulate freely and is not subject to
further national regulation. Where the            further national regulation. Where the
specific essential requirements for a type        specific essential requirements for a
of CTE have not yet been determined, a            type of R&TTE have not yet been
manufacturer shall not be subject to              determined, a manufacturer shall not be
national regulation and may place the CTE         subject to national regulation and may
on the market provided he complies with           place the R&TTE on the market
the general        essential   requirements       provided he complies with the general
identified in Article 3(1). CTE which             essential requirements identified in
complies with the essential requirements          Article 3(1). R&TTE which complies
applicable at the time of first placing on        with the essential           requirements
the market can continue to be placed on           applicable at the time of first placing on
the market.                                       the market can continue to be placed on
                                                  the market.
Member States shall ensure that
connection of CTE to appropriate ONTPs 2.         Member States shall ensure that
is not refused on the grounds of technical         network operators do not refuse
incompatibility when the CTE complies             connection of R&TTE to appropriate
with the requirements of Article 3.                ONTPs on technical grounds when the
                                                   equipment      complies      with     the
Member States shall ensure that, when              requirements of Article 3.
placed on the market, CTE is accompanied
 by documentation informing the potential 3.       Member States shall ensure that, when
 purchaser or user of the CTE that the             placed on the market, R&TTE is
 equipment complies with the relevant              accompanied        by     documentation
 essential requirements and of any usage           informing the potential purchaser or
 conditions resulting from the selection of        user of the R&TTE that the equipment
 essential requirements. These usage               complies with the relevant essential
 conditions should include, inter alia, the        requirements and of any usage
 ONTP type(s) to which the CTE may be              conditions resulting from the selection
 connected and any limitations on use made         of essential requirements. These usage
 necessary by lack of harmonization of             conditions should include, inter alia,
 radio spectrum.                                   the ONTP type(s) to which the R&TTE
                                                   may be connected and any limitations
                                                   on use made necessary by lack of
                                                   harmonization of radio spectrum.
                                               4.  Where a telecommunications operator
                                                   can demonstrate that Apparatus,
                                                   declared to be in conformity with this
                                                   Directive causes damage to his network
                                                   or is not being used properly, the
                                                    surveillance authority may authorize
                                            16
 ---pagebreak---                                                      him to refuse connection of his
                                                     equipment to his network. Member
                                                     States shall notify the Commission of
                                                     such authorizations.
                                          Article 7
                                     Non-compliance
 Where a Member State finds that CTE 1.              Where a Member State ascertains that
 being placed on the market in its territory         equipment within the scope of this
 does not comply with the essential                  Directive does not comply with the
 requirements relevant to the CTE type, it           requirements referred to in Article 3. it
 shall take all appropriate measures to              shall take all appropriate and
 withdraw such products from the market              proportionate   measures in its terrotory
 and prohibit their being placed on                  to avoid the consequences of such non-
 the market.                                         compliance,    such as authorizing the
                                                     operators to refuse to connect the
                                                     equipment from their networks,
                                                     withdrawing the equipment from the
                                                     market, prohibiting its placing on the
                                                     market or restricting its free movement.
 The Member State concerned shall                    The Member State concerned shall
 immediately notify the Commission of all            immediately notify the Commission
 decisions relating \Q non-COmplianCC                and other Member States of any such
 indicating the reasons for its decision and         measures indicating the reasons for its
 whether non-compliance is due to:                   decision and whether non-compliance is
                                                     due to:
(a) incorrect        application    of     the
      harmonized standards referred to in           (a) incorrect application of the
      Article 5,                                           harmonized standards referred to
                                                           in Article 5,
(b) shortcomings in the harmonized
      standards referred to in Article 5,           (b) shortcomings in the harmonized
                                                           standards referred to in Article 5,
(c) use of an inappropriate technical
      specification,                                (c) failure to satisfy the requirements
                                                           referred to in Article 3. where the
                                                           equipment does not meet the
                                                           standards referred to in Article
                                                     Where the decision referred to in
                                                     paragraph 1 is attributed to incorrect
                                                     application of the harmonized standards
                                                     referred to in Article 5 or a failure to
                                                     satisfy those requirements, when the
                                                      equipment does not meet the standards
                                                     referred to in Article 5(1). the
                                                      Commission shall consult the parties
                                                      concerned as soon as possible. If the
                                                      Commission         finds.    after   such
                                                      consultations, that the action is
                                              17
 ---pagebreak---                                                     justified, it shall immediately inform
                                                    the Member State that took the action
                                                    and     the    other     Member        States
                                                    accordingly.
Where the non-compliance referred to in             Where the decision referred to in
paragraph 2 is attributed to shortcomings           paragraph      1     is     attributed     to
in the harmonized standards applicable,             shortcomings in the harmonized
the Commission shall bring the matter               standards, the Commission shall bring
before the Committee within two months              the matter before the Committee within
of the date of notification bv the Member           two months.       The Committee shall
State.                                              deliver an opinion in accordance with
                                                    the procedure laid down in Article 12.
The Commission shall keep the Member                If the Commission finds, after such
State informed of the progress and                  consultations, that the action IS
outcome of any procedure initiated                  justified, it shall immediately inform
pursuant to paragraph 3.                            the Member State that took the action
                                                    and other Member States and shall
                                                    initiate the procedures referred to in
                                                    Article 5(2).
                                                4.  The Commission shall keep the
                                                    Member State informed of the progress
                                                    and outcome of any procedure initiated
                                                    pursuant to paragraph 3.
                                                    The Commission shall maintain a
                                                    record of the cases notified by Member
                                                    SlaiÊS*
                                         Article S
                              Liability for non-compliance
Manufacturers      QL    their    authorized 1.     Manufacturers,        their       authorized
representatives established within the              representatives established within the
Community who place products on the                 Community or in their absence the
Community market which do not comply                responsible person, who place products
with the applicable essential requirements          on the Community market which do not
shall be liable for damage as described in          comply with the applicable essential
Article 9 of Directive 85/374/EEC and for           requirements shall be liable for damage
direct economic damage suffered as a                as described in Article 9 of Directive
consequence of the non-compliance. The              85/374/EEC and for direct economic
economic damage shall not include any               damage suffered as a consequence of
anticipated profits.                                the non-compliance. The economic
                                                    damage shall not             include     any
Manufacturers      or    their    authorized        anticipated profits.
representatives established within the
Community shall not be liable for the 2.            Manufacturers,        their       authorized
damages referred to in paragraph 1 if they          representatives established within the
can prove that the essential requirement(s)         Community or in their absence the
with which their product does not comply            responsible person, who place products
had not been identified pursuant to Article         on the Community market shall not be
                                            18
 ---pagebreak---  4 at the time when the equipment was                liable for the damages referred to in
 placed on the market.                               paragraph 1 if they can prove that the
                                                     essential requirement(s) with which
                                                     their product does not comply had not
                                                     been identified pursuant to Article 4 at
                                                     the time when the equipment was
                                                     placed on the market.
                                         Article 9
                             Conformity assessment procedures
 The conformity assessment procedures 1. The conformity assessment procedures
 identified in this Article will be used to           identified in this Article will be used to
 demonstrate the compliance of the CTE               demonstrate the compliance of the
 with all the relevant essential requirements        R&TTE with all the relevant essential
 identified in Article 3(1) and (2) and              requirements identified in Article 3.
 Article 4(1).
                                                2.   R&TTE which does not make use of
 CTE which does not make use of the                  the        spectrum       allocated      to
 spectrum allocated to terrestrial/space             terrestrial/space radio communication
 radio communication shall be subject to              shall be subject to internal production
 internal production control, as described in         control, as described in Annex I.
 Annex I.
                                                 3.   R&TTE which does make use of the
 CTE which docs make use of the spectrum              spectrum allocated to terrestrial/space
 allocated     to    terrestrial/space   radio        radio communication shall be subject to
 communication shall be subject to internal           internal production control and specific
 production control and specific product              product tests, as described in Annex II.
 tests, as described in Annex II.
                                                4.    The records and correspondence
 The records and correspondence relating to          relating to the production control
 the production control procedures referred          procedures referred to in paragraphs 2
 to in paragraphs 2 and 3 shall be in an             and 3 shall be in an official language of
 official language of the Member State               the Member State where the said
 where the said procedure will be carried            procedure will be carried out, or in a
 out, or in a language accepted by the               language accepted by the notified body
 notified body involved.                             involved.
                                        Article U
                                       CE marking
CTE complying with the relevant essential 1          R&TTE complying with all the relevant
requirements shall bear the CE conformity            essential requirements and all the
marking referred to in Annex IV. It shall            Directives applicable to it shall bear the
be affixed by the manufacturer or his               CE conformity marking referred to in
authorized representative within the                Annex IV. It shall be affixed by the
Community. Where appropriate, it shall be           manufacturer        or    his    authorized
accompanied by the identification number            representative within the Community.
of the notified body referred to in Article         Where appropriate, it shall be
10(2). Any other marking may be affixed             accompanied by the identification
to the equipment provided that the                  number of the notified body referred to
visibility and legibility of the CE marking         in Article 10(2) and of an equipment
                                                    class identifier. Any other marking may
                                            19
 ---pagebreak--- is not thereby reduced.                            be affixed to the equipment provided
                                                   that the visibility and legibility of the
No CTE. whether it complies with the               CE marking is not thereby reduced.
relevant essential requirements or not, may
bear any other marking which is likely to          No R&TTE, whether it complies with
deceive third parties as to the meaning and        the relevant essential requirements or
form of the CE marking specified in                not, may bear any other marking which
Annex IV.                                          is likely to deceive third parties as to
                                                   the meaning and form of the
The competent Member State shall take              CE marking specified in Annex IV.
appropriate action against any person who
has affixed marking not in conformity with         The competent Member State shall take
paragraphs 1 and 2. If the person who              appropriate action against any person
affixed the marking is not identifiable, the       who has affixed marking not in
action shall be taken against the holder of        conformity with paragraphs 1 and 2. If
the CTE when non-compliance was                    the person who affixed the marking is
discovered.                                        not identifiable, the action shall be
                                                   taken against the holder of the R&TTE
CTE shall be identified by the                     when non-compliance was discovered.
 manufacturer by means of type, batch
and/or serial numbers and by the name of           R&TTE shall be identified by the
the      manufacturer     and/or    supplier       manufacturer by means of type, batch
responsible for placing it on the market.          and/or serial numbers and by the name
                                                   of the manufacturer and/or supplier
                                                   bearing liability in the event of non-
                                                   compliance with essential requirements.
                                       Article 12
                              Constitution and procedures
The Commission shall be assisted by a 1. The Commission shall be assisted by a
 Committee,       the    Telecommunication         Committee, the Telecommunication
 Conformity Assessment and Market                  Conformity Assessment and Market
 surveillance committee (TCAM), of an              surveillance committee (TCAM), of an
 advisory nature composed of the                   advisory nature composed of the
 representatives of the Member States and          representatives of the Member States
 chaired by the representative of                  and chaired by the representative of
 the Commission.                                   the Commission.       The Commission
                                                   shall consult the representatives of the
 The Committee shall be consulted on the           telecommunications network providers,
 matters covered by Articles 4, 5 and 2.           the consumers and the manufacturers
                                                   on a continuous basis. It shall keep the
 The Committee may be consulted, where
                                                   Committee regularly informed of the
 necessary, on the effectiveness of the
                                                   outcome of such consultations.
 surveillance tasks related to the operation
 of this Directive.                            2.  The Committee shall be consulted on
                                                   the matters covered by Articles 3, 4, 5
 The representative of the Commission              and 6.
 shall submit to the Committee a draft of
the measures to be taken. The Committee 3.         The Committee may be consulted,
 shall deliver its opinion on the draft,           where necessary, on the effectiveness of
                                           20
 ---pagebreak---        within a time-limit which the chairman              the surveillance tasks related to the
       may lay down according to the urgency of            operation of this Directive.
       the matter, if necessary by taking a vote.
                                                           The representative of the Commission
       The opinion shall be recorded in the                shall submit to the Committee a draft of
       minutes; in addition, each Member State             the measures to be taken. The
       shall have the right to ask to have its             Committee shall deliver its opinion on
       position recorded in the minutes.                   the draft, within a time-limit which the
                                                           chairman may lay down according to
       The Commission shall take the utmost                the urgency of the matter, if necessary
       account of the opinion delivered by the             by taking a vote.
       Committee. It shall inform the Committee
       of the manner in which its opinion has              The opinion shall be recorded in the
       been taken into account and decide within           minutes; in addition, each Member
       one month after having received the                 State shall have the right to ask to have
       opinion of the Committee.                           its position recorded in the minutes.
L.     The Commission shall periodically consult           The Commission shall take- the utmost
       the       representatives        ol       the       account of the opinion delivered by the
       telecommunications networks providers.              Committee. It shall inform the
       the consumers and the manufacturers. It             Committee of the manner in which its
       shall keep the Committee regularly                  opinion has been taken into account and
       informed of the outcome of such                     decide within one month after having
       consultations.                                      received the opinion of the Committee.
                                               Article 13
                                        Review and reporting
The Commission shall review the operation of The Commission shall review the operation
this Directive and report thereon to the of this Directive and report thereon to the
European Parliament and to the Council, on the European Parliament and to the Council, on
first occasion not later than [31 December 1999] the first occasion not later than [31 December
and every third year thereafter. This review shall 1999] and every third year thereafter. This
inter alia assess whether the scope of the review shall inter alia assess whether the
Directive should be maintained or should be scope of the Directive should be maintained
reduced      taking     account     of     technical or should be reduced taking account of
development. The report shall cover progress on technical development and how the
drawing up the relevant standards, as well as any regulatory framework for placing on the
problems that have arisen in the course of market and putting into service of radio and
implementation. The report shall also outline the telecommunications terminai equipment
activities of the Committee, and assess progress should be developed to
in achieving an open competitive market for
CTE at Community level. It shall in particular a)         ensure that a coherent system is
examine whether essential requirements are still          achieved    at Community level for all
necessary for all categories of terminal                  radio and telecommunications terminal
equipment covered.                                        equipment;
                                                      b)  allow        for     convergence        of
                                                          telecommunications, audiovisual and
                                                  21
 ---pagebreak---                                                          information technology sectors;
                                                  c)    enable harmonisation of regulatory
                                                        measures at an international level.
                                                  The report shall cover progress on drawing up
                                                  the relevant standards, as well as any
                                                  problems that have arisen in the course of
                                                  implementation. The report shall also outline
                                                  the activities of the Committee, and assess
                                                  progress in achieving an open competitive
                                                  market for R&TTE at Community level. It
                                                  shall in particular examine whether essential
                                                  requirements are still necessary for all
                                                  categories of terminal equipment covered.
                                          Article 14
                                    Transitional provisions
1.    The harmonized standards or parts thereof 1.      The harmonized standards or parts
      identified through Common Technical               thereof identified through Common
      Regulations adopted under Directive               Technical Regulations adopted under
      91/263/EEC or Directive 93/97/EEC may             Directive 91/263/EEC or Directive
     be used as the basis for a presumption of          93/97/EEC may be used as the basis for
      conformity with the specific essential            a presumption of conformity with the
      requirements referred to Article 3(2) and         specific essential requirements referred
      Article 4(1) until such time as the               to Article 3. The Commission shall
      Commission indicates, by publication in           publish a list of references to these
      the Official Journal of the European              standards in the Official Journal of the
      Communities^ that thev are no longer              European Communities immediately
      applicable.                                       after this Directive comes into force.
2.    Any measure adopted by Member States in 2.        Any measure adopted by Member
      accordance with Directive 91/263/EEC or           States in accordance with Directive
      Directive 93/97/EEC shall continue to be          91/263/EEC or Directive 93/97/EEC
      valid.                                            shall continue to be valid.
                                          Article 16
                                            Repeal
Directive 91/263/EEC, Directive 97/97/EEC and From the entry into force of the present
Article 11 of Directive 93/68/EEC âEg Directive 91/263/EEC, Directive 93/97/EEC
hereby repealed.                                  and Article 11 of Directive 93/68/EEC shall
                                                  no longer be applicable.
                                              22
 ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(98) 176 final
                                             DOCUMENTS
EN                                                            15 16 01     10
                                    Catalogue number : CB-CO-98-176-EN-C
                                                             ISBN 92-78-32333-0
Office for Official Publications of the European Communities
L-2985 Luxembourg
                                            22.