Explanatory Memorandum to COM(2012)584 - Harmonisation of the laws of the Member States relating to the making available on the market of radio equipment

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dossier COM(2012)584 - Harmonisation of the laws of the Member States relating to the making available on the market of radio equipment.
source COM(2012)584 EN
date 17-10-2012
1. CONTEXT OF THE PROPOSAL

· Context, objectives and grounds for the proposal

The R&TTE Directive, Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, establishes a framework for the placing on the market, free movement and putting into service in the EU of radio equipment and telecommunications terminal equipment. The Directive entered into force in 1999 and has been crucial to achieving an internal market in this area.

The Directive includes essential requirements for the protection of health and safety, of electromagnetic compatibility and for the avoidance of harmful interference. These requirements are translated into technical requirements within non-mandatory harmonised standards, as in other ‘New Approach’ legislation. The regulatory approach is considered to remain valid, a fundamental revision of the Directive is therefore not necessary. Nevertheless, experience in the operation of the Directive has highlighted a number of issues to be addressed[1]. The main objectives of the draft proposal are:

– To improve the level of compliance with the requirements in the Directive, and to increase the confidence of all stakeholders in the regulatory framework;

– To clarify and simplify the Directive, including some limited adaptations of scope, so as to facilitate its application and eliminate unnecessary burden for economic operators and public authorities.

The proposed revision also allows to better integrate the Directive with other related EU legislation managed by DGConnect, in particular the Radio Spectrum Decision[2]. The proposed text is built on the alignment of the Directive with the new legislative framework for the marketing of products (NLF), with Regulation No 182/2011 on the Commission’s exercise of implementing powers and with the Treaty on the Functioning of the European Union (TFEU).

The proposal is based on Articles 26 (Internal Market) and 114 (Approximation of Laws) of the TFEU.

· Existing provisions in the area of the proposal

The R&TTE Directive fully harmonises the placing on the EU market of the products falling within its scope. Only equipment complying with the requirements of the Directive may be placed on the market, and Member States may not introduce further restrictions addressing at national level the same requirements, namely the protection of health and safety, electromagnetic compatibility, and the avoidance of harmful interference. Other EU legislation on environmental aspects also applies to these products, in particular the Directives on RoHS[3], WEEE[4] and Batteries[5], as well as implementing measures under the EcoDesign Directive[6].

Putting into service and use of radio equipment is subject to national regulation. When exercising this competence, Member States must comply with applicable EU law, in particular:

– The general framework for spectrum policy set out in the Radio Spectrum Policy Programme[7];

– General criteria laid down in Directive 2002/21/EC (Framework Directive[8]) within the regulatory framework for electronic communications;

– Conditions for authorisations for the use of spectrum laid down in Directive 2002/20/EC (Authorisation Directive[9]) within the regulatory framework for electronic communications;

– Implementing measures under Decision 676/2002/EC (Radio Spectrum Decision[10]) harmonising the technical conditions for the use of certain spectrum bands in the EUand that are binding on all Member States. Examples of bands harmonised at EU level include the bands for GSM, UMTS and short-range devices;

– Consistency with the other policies and objectives of the Union.

The proposal is consistent with the principles of the Commission’s ‘Smart Regulation’ policy[11], with the policy for Europe 2020, in particular as regards the regulatory review foreseen within the policy for an Innovation Union[12], as well as with the Radio Spectrum Policy Programme[13].

The initiative is consistent with the New Legislative Framework package approved in 2008, composed of Regulation 765/2008 on accreditation and market surveillance and of Decision 768/2008 establishing a common framework for the marketing of products. The Decision provides (Article 2) that its provisions are to be used when legislation is drafted or revised.

Contents

1.

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS



· Consultation of interested parties

A first public consultation on the operation of the Directive took place in 2007. Issues identified through this consultation were included in the Second Progress Report on the operation of the Directive[14].

The Commission conducted a further public consultation in 2010 focusing on the impact of some of the measures under consideration. The Commission received contributions from 122 respondents, including 50 SMEs, 36 other economic operators, national authorities, notified bodies, and standardisation bodies[15].

· Collection and use of expertise

During 2009, a external study was conducted on the impact of different options addressing the need to improve traceability of products and their compliance with the requirements in the Directive[16].

Overall, there is a high level of consensus and support for aligning the Directive with the New Legislative Framework package and for clarifying and simplifying the Directive. Opinions are more divided on the possible introduction of a requirement to register products prior to their placing on the market, and on some measures for administrative simplification

2.

LEGAL ELEMENTS OF THE PROPOSAL



· Legal basis

Articles 26 and 114 TFEU.

· Subsidiarity and proportionality principles

Action at EU level is necessary in order to adapt, clarify or simplify provisions of Internal Market legislation in this area. The proposal harmonises essential and administrative requirements compliance with which enables access to the EU market, and its advantages compared to multiple similar measures by Member States acting individually are clear.

In accordance with the principle of proportionality, the proposed modifications do not go beyond what is necessary to achieve the objectives set. The new or modified obligations do not impose unnecessary burdens and costs on industry especially on small and medium sized enterprises - or administrations. Where modifications have been identified as having negative impacts, their analysis has made it possible to provide the most proportionate response to the problems identified. A number of modifications concern the improvement of clarity of the existing Directive without introducing new requirements.

· Choice of instrument

The proposal is to replace current Directive 1999/5/EC with a new Directive, to be transposed by Member States by way of national legal instruments.

3.

BUDGETARY IMPLICATION



The proposal is compatible with the current multiannual financial framework: all measures or actions included in the proposed directive are consistent and compatible with the current and the next multiannual financial framework (2014 to 2020) as proposed by the Commission.

The proposal includes the possibility of requiring registration of certain categories of radio equipment prior to their placing on the market. Were this possibility to come into effect, a database should be put in place and administered by the Commission. The available estimation of costs includes an investment of €300000 and an annual maintenance cost of €30000.

4.

5. OPTIONAL ELEMENTS


· Simplification and reduction of administrative costs

The proposal aims to clarify the application of the Directive and to eliminate unnecessary administrative burden for businesses and administrations by increasing spectrum flexibility and easing administrative procedures for spectrum use. It is part of the Commission’s rolling programme for updating and simplifying acquis communautaire and its Work and Legislative Programme under reference 2009/ENTR/021.

· Review

5.

The proposal requires the Commission to review the operation of the Directive and report thereon 4 years after the entry into force of the Directive and every five years thereafter


· Information from Member States

Member States shall inform the Commission on the transposition of the Directive and send to the Commission a report on its application three years after the entry into force of the Directive and every two years thereafter.

· European Economic Area

The proposed act is of relevance to the EEA and should therefore extend thereto.

· Detailed explanation of the proposal

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

1. Alignment with Decision 768/2008/EC on a common framework for the marketing of products:

– Article 2 includes the definitions set out in chapter R1 of Decision 768/2008/EC

– Articles 10-to-15 include the obligations of economic operators set out in chapter R2 of Decision 768/2008/EC

– Article 17 and Annexes III, IV and V include three modules for conformity assessment set out in Annex II of Decision 768/2008/EC

– Articles 22-to-38 include the obligations for the notification of conformity assessment bodies set out in chapter R4 of Decision 768/2008/EC

– Articles 39-to-43 include the simplified safeguard procedures set out in chapter R5 of Decision 768/2008/EC

2. Article 2(1) sets out a new definition of ‘radio equipment’ which demarcates the modified scope of the Directive: this includes all and only equipment which intentionally transmits signals using radio spectrum, whether for the purpose of communication or other. The essential requirement in Article 3(2) has been correspondingly adapted and only refers to transmitted signals.

In consequence, the proposed new title for the Directive is: “Directive on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment”

6.

3. Article 3(3) (a) makes it possible to require radio equipment to interoperate with accessories such as chargers


4. Article 3(3) (g) makes it possible to require software-defined radio equipment to ensure that only compliant combinations of software and hardware come together. Article 4 makes it possible to adopt measures to avoid that this regulatory requirement creates barriers to competition in the market for third-party software

5. Article 5 introduces the possibility to require the registration within a central system of products within categories showing low levels of compliance, on the basis of information on compliance provided by Member States in accordance with Article 47(1)

6. Article 7 clarifies the relation between the R&TTE Directive and EU and national legislation on the use of radio spectrum

7. Simplification and reduction of administrative obligations:

– The new definition of radio equipment set out in Article 2(1) establishes a clear demarcation of scope with Directive 2004/108/EC (the EMC Directive[17]);

– Pure receivers and fixed-line terminals cease to fall within the scope of the Directive, falling instead within the scope of Directive 2004/108/EC and Directive 2006/95/EC[18], or depending on their voltage falling within the scope of Directive 2004/108/EC and Directive 2001/95/EC[19]; this entails some reduction of administrative obligations;

– The requirement to notify the placing on the market of equipment using frequency bands which are not EU-wide harmonised (current Article 6(4)) is removed;

– The obligation to affix an equipment class identifier on the product (current Annex VII(5)) is removed;

– The requirement to affix CE marking on user instructions (current Annex VII(3)) is removed;

– Requirements supporting competition in the market for terminals (current Articles 4(2), 7(3)-to(5)) are removed from the text of the Directive. Similar requirements are in force under Directive 2008/63/EC[20].

8. Alignment with the Treaty on the Functioning of the European Union and with Regulation No 182/2011 on the Commission’s exercise of implementing powers:

– The procedures for the exercise of implementing and delegated powers are laid out in Articles 44 (Committee procedure) and 45 (Exercise of the delegation)

– Implementing powers are proposed in Article 8(3) (determination of equipment classes) and Article 10(9) (presentation of information on geographical area for use and on restrictions to use of radio equipment)

– Delegated powers are proposed in Article 2(3) (adaptation to technical progress of Annex II listing some equipment falling or not within the definition of radio equipment), Article 3(3) (additional essential requirements), Article 4(2) (provision of information on the compliance of software-defined radio equipment), and Article 5(2) (requirement to register radio equipment within some categories)