CELEX: 51991PC0046
Language: en
Date: 1991-02-21
Title: REEXAMINED PROPOSAL FOR A COUNCIL DIRECTIVE ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES CONCERNING TELECOMMUNICATIONS TERMINAL EQUIPMENT, INCLUDING THE MUTUAL RECOGNITION OF THEIR CONFORMITY

COMMISSION OF THE EUROPEAN COMMUNITIES
                                             C0M(91) 46 final - SYN 204
                                             Brussels, 21 February 1991
                          Reexamined proposal for a
                           COUNCIL DIRECTIVE
           on the approximation of the laws of the Member States
            concerning telecommunications terminal equipment,
             including the mutual recognition of their conformity
     (presented by the Commission pursuant t o A r t i c l e      149.2(d)
                            of the EEC t r e a t y )
 ---pagebreak---     Reexamined proposal for a Council Directive on the approximation of the laws of the
  Member States concerning telecommunications terminal equipment, including the mutual
                              recognition of their conformity.
                                  EXPLANATORY NOTE
1. STATUS OF THE PROCEDURE.
a). The Commission has submitted its proposal to the Council on 27 July 1989.
b). The Economic and Social Comittee adopted its favourable opinion on 4 October 1989.
c). The European Parliament adopted during its first reading 24 amendments to the
proposed Directive on 3 April 1990.
d). In accordance with Article 149.3 of the Treaty, the Commission adopted a revised
proposal on 19 June 1990, incorporating in full or in part 19 of these amendments.
e). The Council adopted its common position on 24 July 1990.
f). The Commission accepted this common position and informed the European
Parliament of its opinion on 6 September 1990.
g). The European Parliament adopted during its second reading 22 amendments on 11
December 1990.
2. POSITION OF THE COMMISSION.
a). Out of the 22 amendments proposed during the second reading, 5 amendments having
been adopted by the Parliament at its first hearing but not having been accepted by the
Commission at that time, were reintroduced and again not accepted. Of the remaining 17
new amendments the Commission has accepted in full or in part 5 thereof to the common
position.
The five amendments accepted in full or in part are reported below, together with the
motivation of the Commission position:
TEXT OF THE COMMON POSITION                      AMENDMENT NO J
                                                 Article 1, paragraph 2 (addendum)
                                                 "Public     telecommunications    network"
                                                 means the public telecommunications
                                                 infrastructure     which    permits    the
                                                 conveyance of signals between defined
                                                 network termination points by wire, by
                                                 microwave, by optical means or by other
                                                 electromagnetic means.
 The addition of this definition, drawn from the ONP Directive, adds clarity in this
 Directive.
 ---pagebreak---  TEXT OF THE COMMON POSITION                      AMENDMENT NO.12
 Article 17                                       Article 17
 Member States shall take the measures             Member States shall take the measures
 necessary to comply with this Directive not       necessary to comply with this Directive not
 later than 18 months from its notification.      later than 18 months from its notification.
 They shall forthwith          inform the         They shall forthwith           inform the
 Commission thereof.                              Commission thereof.
                                                  The provisions adopted under the first
                                                  subparagraph shall refer explicitly to this
                                                  directive.
  Text now agreed between Council and Commission and which has to be introduced into
   this directive:
  "When Member States adopt these provisions, they shall contain a reference to this
  directive or shall be accompanied by such reference at the time of their official
  publication. The procedure for such reference shall be adopted by Member States."
TEXT OF THE COMMON POSITION                      AMENDMENT NO.2
Article 1, paragraph 3                           Article 1, paragraph 3
The intended purpose of the equipment,           The intended purpose of the equipment,
shall be declared by the manufacturer or          shall be declared by the manufacturer or
supplier of the equipment. However,               supplier of the equipment. However, with
terminal equipment within the meaning of          respect to connection and/or interworking.
paragraph 2 which makes use of the radio         terminal equipment within the meaning of
frequency spectrum is presumed to be             paragraph 2 which makes use of the radio
intended for connection to the public            frequency spectrum, including terminals
network.                                         that are designed to send information by
                                                  means of radio propagation capable of
                                                 being received outside user premises and
                                                 capable of being retransmitted to a public
                                                 telecommunications network termination
                                                 point, is presumed to be intended for
                                                 connection         to       the        public
                                                 telecommunications network.
  Text not accepted, but principle taken into account with simplified wording. The text "of
  the radio frequency spectrum" is replaced by "of a system of connection by radio". In
  addition, "telecommunications" is added as proposed at the end of the paragraph.
 ---pagebreak---                                                 3-
 TEXT OF THE COMMON POSITION                        AMENDMENT NO.4
 Article 2, paragraph 2                             Article 2, paragraph 2
 The manufacturer or supplier shall be              The manufacturer or supplier shall be
 prepared to justify once, at the request of        prepared to justify once, at the request of
 any notified body referred to in Article           any notified body referred to in Article
 10(1), the intended purpose of such                10(1), the intended purpose of such
 equipment on the basis of its design, its          equipment its functions and indications of
 functions and indications of the market            the market segment it is intended for.
 segment it is intended for.
  Text not accepted, but the idea not to involve proprietary information is taken by
  changing the word "design" into "technical characteristics".
TEXT OF THE COMMON POSITION                        AMENDMENT NO.8
Article 10, paragraph 4                            Article 10, paragraph 4
A Member State that has designated a               A Member State that has designated a
notified body or a test laboratory under           notified body or a test laboratory under
paragraph 1 or paragraph 2 shall annul the         paragraph 1 or paragraph 2 shall annul the
designation if the notified body or the test       designation if the notified body or the test
laboratory no longer meets the relevant            laboratory no longer meets the relevant
criteria for designation.             It shall     minimum criteria for designation, as set
immediately inform the other Member                out in Annex 5. It shall immediately
States and the Commission accordingly              inform the other Member States and the
and withdraw the notification. Where a             Commission accordingly and withdraw the
Member State or the Commission                     notification. Where a Member State or
considers that a notified body or a test           the Commission considers that a notified
laboratory designated by a Member State            body or a test laboratory designated by a
does not meet the relevant criteria the            Member State does not meet the relevant
matter shall be brought before the                 criteria the matter shall be brought before
Committee, which shall give its opinion            the Committee, established in Article 13.
within three months; in the light of the           which shall give its opinion within three
Committee's opinion, the Commission                months; in the light of the Committee's
shall inform the Member State concerned            opinion, the Commission shall inform the
of any changes needed if that notified body        Member State concerned of any changes
or test laboratory is to retain its recognized     needed if that notified body or test
status.                                            laboratory is to retain its recognized status.
  Part 1: Not accepted, Part 2: Accepted. First part would be redundant for notified
  bodies and incorrect for test laboratories. Second part adds clarity.
 ---pagebreak---  b). The list of the amendments which were not accepted is given in Annex 1, with the
 reasons motivating the position of the Commission.
 c). In addition to the above mentioned changes, the Commission proposes a declaration in
 the proceedings of the Council, to take into account a concern strongly expressed by the
 Parliament and the Industry, which relates to the procedures foreseen in the Directive for
certifying the equipment, and mainly those in Annex I. The representatives of European
Industry, supported by the Parliament, stated at several occasions that the wording in
particular of Annex I, which relates to the procedure which will be commonly used by the
SMEs, leaves too much freedom to the notified bodies to request an excessive amount of
information. As a matter of fact, this annex mentions that information has to be requested
as far as relevant for the assessment of conformity to the essential requirements, and
contains under its point 3 a list of elements of documentation, which is given only "for
example". But even taking this into account, Industry fears to be requested more
information than what is strictly necessary for the assessment of its equipment, to be
obliged to transmit to the notified bodies for instance "design" information which could be
proprietary, and finally to have to bear a bureaucratic burden which is not really necessary.
The Commission is of the opinion that the text of Annex I agreed upon in the Common
Position must not be modified, because it allows the necessary flexibility to adapt the
request of information by the Notified Bodies to the variety of types of terminal
equipment. But it considers useful that the Council draw the attention of the notified
bodies to this concern of Industry and prompt them to limit their requests to what is strictly
necessary for the assessment of conformity to the essential requirements. Consequently,
the adoption of the following Declaration is proposed:
" The Council and the Commission agree that, with a view to reducing the bureaucratic
burden imposed on Industry in the course of the certification procedures, to limiting to
what is absolutely necessary the provision of proprietary information on equipment design
and finally to accelerating the procedures, the information requested to Industry in view of
these certification procedures must be strictly limited to what is necessary to assess the
conformity to the relevant essential requirements of the equipment submitted .
Consequently, the Notified Bodies have to take due account of this necessity."
d). Finally, the Commission thinks appropriate to take the opportunity of the adoption of
its Reexamined Proposal to finalise the legal presentation aspects which arise as a
consequence of the modifications the adoption of this Directive will introduce in other
already adopted Community legislation.
These modifications stem from the fact that this Directive, when adopted, will repeal
Directive 86/361/EEC, the reference to which is made in a number of other Community
Directives or Decisions.
 ---pagebreak---           • ? * • - • * * • " • • - M » ' • ^."'• "V •        **     ,. ^  ,.,•   ;«... /-" .<»» 4»
                                                                               • -*** ••*% ^     ID
                                                       -5-
The following provisions are introduced in order to cope with this aspect :
     Article 16.1 is amended with an additional text being :
              "References made to the repealed directive are understood as being made to
              this directive".
     Article 1, paragraph 2 is amended by the addition of the following two definitions
     which appears in Directive 86/361, articles 2.3 and 2.6 and are used in later directives:
              'technical specification' means a specification contained in a document which
              lays down the characteristics required of a product such as levels of quality,
              performance, safety or dimensions, including the requirements applicable to the
              product as regards terminology, symbols, testing and test methods, packaging,
              marking and labelling.
     and
              'standard' means a technical specification adopted by a recognized standards
              body for repeated or continuous application, compliance with which is not
              compulsory.
3. CONCLUSION.
In conclusion, the Commission is of the opinion that the proposed amendments to the
Common Position do not modify the balance of its elements of substance, but adds clarity
to some of its points.
 ---pagebreak---                                           ANNEX 1
    LIST OF THE AMENDMENTS TO THE COMMON POSITION ADOPTED BY THE
       EUROPEAN PARLIAMENT AND NOT ACCEPTED BY THE COMMISSION.
TEXT OF THE COMMON POSITION                       AMENDMENT NO.l
 Recital 15 (a) new                                Recital 15 (a) new
                                                   Whereas         conformity     assessment
                                                  procedures should not be too onerous or
                                                  bureaucratic.
  Not accepted as not useful. The necessity of reducing the bureacratic burden has been
  taken into account during the negotiations in the Council, and procedures have
  consequently been simplified as far as possible.
TEXT OF THE COMMON POSITION                      AMENDMENT NO.5
Article 3, paragraph 2                           Article 3, paragraph 2
Member States shall also take all                 Subject to transitional measures in
appropriate measures to ensure that               accordance with Article 14 (b) Member
equipment referred to in Article 2 may be         States shall also take all appropriate
placed and allowed to remain on the               measures to ensure that equipment
market only if it complies with the               referred to in Article 2 may be placed and
requirements laid down by this Directive         allowed to remain on the market only if it
for this equipment and may not be                complies with the requirements laid down
connected          to        the      public     by this Directive for this equipment and
telecommunications network within the            may not be connected to the public
meaning of Article 1(2).                         telecommunications network within the
                                                  meaning of Article 1(2).
 Not accepted       Presented and rejected at the First Hearing.         The added text is
 redundant.
TEXT OF THE COMMON POSITION                      AMENDMENT NO.6
Article 4 (d)                                    Article 4 (d)
Protection         of        the      public     Protection          of       the      public
telecommunications network from harm;            telecommunications network from harm;
                                                 of a technical or non-commercial nature;
  Not accepted : This amendment was presented at the First Hearing and rejected. The
 limitations of the type of harm to be considered are specified in the directives on
 liberalisation of services and ONP.
 ---pagebreak---                                           : -2-                                              & 8
TEXT OF THE COMMON POSITION                     AMENDMENT NO.7
Article 8, paragraph 3 (a) (new)                Article 8, paragraph 3 (a) (new)
                                                 For testing and development of equipment,
                                                 experimental use, trade shows and
                                                 exhibitions,   and    other     exceptional
                                                circumstances, full conformity assessment
                                                of all essential requirements may not be
                                                appropriate as a condition to connect to
                                                the public network. A public network
                                                operator may in such cases allow
                                                equipment to be attached to his network
                                                subject to his own judgement.
  Not accepted : This amendment was presented at the First Hearing and rejected, It
  does not address equipment actually placed on the market.
TEXT OF THE COMMON POSITION                     AMENDMENT NO. 9
Article 13, paragraph 3                         Article 13, paragraph 3
The Commission will periodically consult        The Commission will periodically and at
the         representatives    of       the     least on a 6 monthly basis consult the
telecommunications organisations, the           representatives of the telecommunications
consumers, the manufacturers, the service       organisations, the users, the consumers,
providers and trade unions and will inform      the manufacturers, the service providers
the Committee on the outcome of such            and trade unions. It will inform the
consultations, with a view to take due          Committee of the outcome of these
account of the outcome.                         consultations, and will take the fullest
                                                possible account of them. The Committee
                                                shall draw up and publish its own rules of
                                                procedure.
 Not accepted : Puts too heavy a bureaucratic burden on the Commission, for a process
 which is already open as linked to standardisation. We accept the addition of "users" to
  the list.
 ---pagebreak---                                              3-
TEXT OF THE COMMON POSITION                      AMENDMENT NO.10
Article 14, paragraph 3                          Article 14, paragraph 3
The Commission shall adopt the measures          The Commission shall adopt measures
envisaged if they are in accordance with         which shall enter into effect immediately.
the opinion of the Committee.                    However, if these measures are not in
                                                 accordance with the opinion of the
If the measures envisaged are not in             committee, the Commission shall notify
accordance with the opinion of the               the Council of them without delay. In this
Committee, or if no opinion is delivered,        case:
the Commission shall, without delay,
submit to the Council a proposal relating        the Commission may postpone the
to the measures to be taken. The Council-       application of the measures it has adopted
shall act by qualified majority.                 for a period not exceeding one month from
                                                 the date of notification:
If, within three months from the date of
referral to the Council, the Council has not    the Council, acting by qualified majority.
acted, the proposed measures shall be           may take a different decision with the
adopted by the Commission.                      period of time provided for in the
                                                preceding paragraph.
 Not accepted : A regulatory committee is deemed necessary for the Directive.
TEXT OF THE COMMON POSITION                     AMENDMENTNO.il
Article 14 (b) (new)                            Article 14 (b) (new)
                                                Transitional arrangements shall apply to
                                                equipment in stock at the date when this
                                                Directive comes into force and having type
                                                approval to standards applicable at the
                                                time of the introduction of this directive.
                                                Such equipment which does not carry the
                                                EC mark may be placed on the market and
                                                put into service in the territory in respect
                                                of which type approval has been granted
                                                for a period to be determined by the
                                                notified body.
 Not accepted : This amendment was presented at the First Hearing and rejected. This
 directive deals only with terminals covered by a common specification. In this case,
 transitional measures are covered by Article 16.3
 ---pagebreak---                                                 M * *
                                                                                                "•-Bk
TEXT OF THE COMMON POSITION                           AMENDMENT NO.13
Annex 1, point 3                                      Annex 1, point 3
The technical documentation shall enable              The technical documentation shall enable
the conformity of the product with the                the conformity of the product with the
essential requirements of the Directive to            essential requirements of the Directive to
be assessed. It shall, as far as relevant for         be assessed. It shall, as far as relevant for
such assessment, cover the design,                    such assessment, cover the design,
manufacture and operation of the product.             manufacture and operation of the product.
For example; the documentation shall                  For example, the documentation shall
contain as far as is relevant tor assessment          contain as far as is relevant for assessment
         a       general       type-description             a general type-description sufficient
sufficient to identify the product preferably         to identify the product preferably by
by provision of photographs;                          provision of photographs;
         design and manufacturing drawings                  design        and         manufacturing
and lists of components, sub-assemblies,              information and lists of components, sub-
circuits, etc.;                                       assemblies, circuits, etc.;
         descriptions      and     explanations             descriptions       and     explanations
necessary for the understanding of said               necessary for the understanding of said
drawings and lists and the operation of the           information and lists and the operation of
product;                                              the product;
         a list of the standards referred to in             a list of the standards referred to in
Article 6, applied in full or in part, and            Article 6, applied in full or in part, and
descriptions of the solutions adopted to              descriptions of the solutions adopted to
meet the essential requirements of the                meet the essential requirements of the
Directive where the standards referred to             Directive where the standards referred to
in Article 6 have not been applied;                   in Article 6 have not been applied;
         results of examinations carried out,               results of examinations carried out,
etc.;                                                 etc.;
         test reports;                                      test reports;
        proposed       user   information    or             proposed      user    information    or
handbook.                                             handbook.
 Not accepted : This amendment was presented at the First Hearing, and rejected. The
 wording is too vague, with no justification as it is an example.
 ---pagebreak---                                                                                                  ^0
 TEXT OF THE COMMON POSITION                         AMENDMENT NO.14
Article 1, paragraph 2                               Article 1, paragraph 2
2. For the purpose of this Directive,                2. For the purpose of this Directive
terminal equipment means equipment                   terminal equipment means equipment (or
intended to be connected to the public               a subassembly thereof) that :
telecommunications network, i.e. :
                                                     a) is intended by the supplier or
a) to be connected directly           to the         manufacturer to be connected or be
termination          of        a        public       capable of connection to the termination of
telecommunications network                           a publicly accessible telecommunications
                                                     network.
                      or
                                                     h) is the closest equipment to such
b) to      interwork     with     a     public       termination capable of addressing the
telecommunications         network      being        network and of controlling any attempt by
connected directly or indirectly to the              equipment more remote from the network
termination of a public telecommunication            to address and
network
                                                     c) may reasonably affect the conformity
in order to send, process or receive                 with the essential requirements of this
information.                                         Directive.
The system of connection may be wire,
radio, optical or other electromagnetic
system.
  Not accepted, as the definition in the Commissions text is more precise. Moreover, the
  Commissions text allows for dealing in a special way with cases of terminals not being
  intended for connection to the public networks, but technically capable of being
  connected.
TEXT OF THE COMMON POSITION                          AMENDMENT NO.15
Article 8, paragraph 1                               Article 8, paragraph 1
 1.      Where a Member State finds that             1. Where a Member State finds that
terminal equipment bearing the markings              terminal equipment bearing the markings
under the provisions laid down in Chapter            under the provisions laid down in Chapter
III does not comply with the relevant                III does not comply with the relevant
essential requirements when properly used            essential requirements when properly used
in accordance with the purpose intended              in accordance with the purpose intended
by the manufacturer, it shall take all               by the manufacturer, it shall take all
appropriate measures to withdraw such                appropriate measures to withdraw such
products from the market or to prohibit or           products from the market or to prohibit or
restrict their being placed on the market.           restrict their being placed on the market,
                                                     after notification of the affected parties.
  Not accepted, as Article 8.2 stipulates, that it is the Commission responsibility to do so.
 ---pagebreak---                                                 é-
                                                                                              "?<,
TEXT OF THE COMMON POSITION                        AMENDMENT NO.16
Article 7, second paragraph                        Article 7, second paragraph
In the light of the Committee's opinion and        In the light of the Committee's opinion and
after consultation       of the standing           after consultation        of the       standing
Committee        set    up     by    Directive     Committee        set    up      by    Directive
83/189/EEC, the Commission shall inform            83/189/EEC, the Commission shall inform
the Member States whether or not it is             the Member States whether or not it is
necessary to withdraw references to those          necessary to withdraw references to those
standards and any related technical                standards and any related technical
regulations from the Official Journal of the       regulations from the Official Journal of the
European Communities and shall take the            European Communities and shall take the
necessary steps to correct the shortcomings        necessary steps to correct the shortcomings
noted in the standards.                            noted in the standards and any related
                                                   technical regulations.
  Not accepted. When the standard has been revised, it constitutes the basis for a new
  technical regulation to be adopted in the framework of the Directive.
TEXT OF THE COMMON POSITION                        AMENDMENT NO.17
Article 4, paragraph c                             Article 4, paragraph c
Electromagnetic                   compatibility    Electromagnetic                    compatibility
requirements in so far as they are specific        requirements of terminal equipment
to terminal equipment;                             arising solely out of its physical connection
                                                   to the public telecommunications network
                                                   in so far as they are not covered by
                                                   Directive 89/336/EEC:
 Not accepted. The consideration of "physical" connection only is too restrictive, and
 Article 9.4 transfers the specific telecommunications aspects to this Directive .
TEXT OF THE COMMON POSITION                        AMENDMENT NO.18
Annex I, paragraph 2, first subparagraph           Annex I, paragraph 2, first subparagraph
2. The application for the EC Type                 2. The application for the EC Type
examination shall be lodged by the                 examination shall be lodged by the
manufacturer         or    his      authorised     manufacturer         or     his      authorised
representative established within the              representative established within the
Community with a notified body of his              Community with a notified body (or
choice.                                            bodies) of his choice.
 Not accepted. The practice of requesting several notified bodies to certify an equipment
 could, in certain cases, cause a saturation of the testing installations in the Community,
 and harm other manufacturers which would like to have the same type of equipment
 certified.
 ---pagebreak---                                                                                                *3
TEXT OF THE COMMON POSITION                      AMENDMENT NO.20
Annex      IV,    paragraph      3.3,   third    Annex      IV,    paragraph      3.3,   third
subparagraph                                     subparagraph
The auditing team shall have at least one        The auditing team shall have at least one
member experienced as an assessor in the         member experienced as an assessor in the
product technology concerned.            The    product technology concerned.             The
evaluation procedure shall include an            evaluation procedure shall include an
assessment visit to the manufacturer's           assessment visit to the manufacturer's
premises.                                       production premises.
 Not accepted, as inspection at other locations than the production facilities might be
 needed. E.g., test-laboratories, maintenance facilities.
TEXT OF THE COMMON POSITION                     AMENDMENT NO.24
Article 9, paragraph 4a (new)                   Article 9, paragraph 4a (new)
                                                 4a. In order to protect the manufacturers,
                                                 the technical documentation to notified
                                                 bodies has to be limited to that which is
                                                 required solely for the purpose of
                                                 assessment of conformity with the essential
                                                 requirements.     Legal     protection     of
                                                 confidential information shall be required.
 Not accepted. The fact that the documentation has to be révélant only to the assessment
 of the product with regard to the applicable essential requirements is already clear in the
 annexes. In addition, the confidentiality duty of the notified bodies is spelt out in Annex
 V, point 7.
 ---pagebreak---                                            -8                                                4
                                                                                               9
TEXT OF THE COMMON POSITION                      AMENDMENT NO.25
Article 10, paragraph 6a (new)                   Article 10, paragraph 6a (new)
                                                 6a. Subcontracting to an establishment
                                                 located in a third country shall be subject
                                                 to certain conditions guaranteeing :
                                                       (i)   the    competence       of    the
                                                 establishment operating as sub-contractor,
                                                 on the basis of conformity with series EN
                                                 45000 standards and the capability of the
                                                 Member State that has notified the sub-
                                                contracting body to ensure effective
                                                 monitoring of such compliance:
                                                      (ii) the ability of the body notified
                                                 to exercise effective responsibility for the
                                                 work carried out.
 Not accepted, as the Notified Bodies and the test laboratories must be established within
 the Community.
TEXT OF COMMON POSITION                          AMENDMENT NO.26
Article 9, paragraph 4a (new)                    Article 9, paragraph 4a (new)
                                                 4a. Provision shall be made for an appeals
                                                 procedure.
 Not accepted : a special appeals procedure is not necessary, the interestedparties in the
 issue considered here have allways the possibility to bring thier possible objections to the
 attention of the Commission. On another hand, Art. 9 is not the appropriate place to
 deal with this idea.
 ---pagebreak--- EEL.
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