S.I. No. 240/2001 - European Communities (Radio Equipment and Telecommunications Terminal Equipment) Regulations, 2001.

1. The CE conformity marking must consist of the initials ‘CE’ taking the following form

If the CE marking is reduced or enlarged, the proportions given in the above graduated drawing must be respected.

2. The CE marking must have a height of at least 5 mm except where this is not possible on account of the nature of the apparatus.

3. The CE marking must be affixed to the product or to its data plate. Additionally it must be affixed to the packaging, if any, and to the accompanying documents.

4. The CE marking must be affixed visibly, legibly and indelibly.

5. The equipment class identifier must take a form to be decided by the Commission in accordance with the procedure laid down in Article 14 of the Directive.

Where appropriate it must include an element intended to provide information to the user that the apparatus makes use of radio frequency bands where their use is not harmonised throughout the Community.

It must have the same height as the initials ‘CE’.

Given under my Official Seal,

5

th

June 2001

Mary O'Rourke,

Minister for Public Enterprise.

Explanatory Note

(This note is not part of the Instrument and does not purport to be a legal interpretation)

The purpose of these regulations is to give legal effect to 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.

1

O.J. No. L 91, 7.4.99, p.10

1

O.J. No. L 91, 7.4.99, p.10

2

O.J. No.L 169, 12.7.1993, p.1

3

O.J. No. L 189, 20.7.1990 p. 17 as amended by Directive 93/68/EEC (O.J. No. L 220, 30.8.1993 p. 1)

4

O.J. No. L 152, 6.7.1972, p.15 as last amended by Directive 95/54/EC (O.J. No. L 266, 8.11.1995 p. 1)

5

O.J. No. L 225, 10.8.1992, p.72 as amended by the 1994 Act of Accession

6

O.J. No.L 77, 26.3.1973, p.29 as amended by Directive 93/68/EEC (OJ No.L 220, 30.8.1993, p.1)

7

O.J. No.L 139, 23.5.1989, p.19 as last amended by Directive 93/68/EEC (OJ No.L 220, 30.8.1993, p.1)

8

OJ No. L 204, 21.7.1998, p.37 as amended by Directive 98/48/EC (OJ No.L 217, 5.8.1998, p.15)

9

OJ L 46, 17.2.1997, p.25.

10

OJ L 373, 31.12.1991, p.4. Regulation as amended by Commission Regulation (EC) No 2176/96 (OJ L 291, 14.11.1996, p.15).

11

OJ L 187, 29.7.1993, p.52. Directive as last amended by Commission Directive 97/15/EC (OJ L 95, 10.4.1997, p.16).

12

Annex based on Module A with additional requirements appropriate to the sector.

6. Each notified body must make available to the other notified bodies the relevant information concerning quality system approvals including references to the product concerned, issued and withdrawn.

SCHEDULE 6

Regulation 10

MARKING OF EQUIPMENT

7. (1) Subject to paragraphs (2) and (3), operators of public telecommunications networks shall not refuse to connect telecommunications terminal equipment to appropriate interfaces on technical grounds where that equipment complies with the applicable requirements of these Regulations.

(2) Where apparatus declared to be compliant with the provisions of these Regulations causes or may cause serious damage to a network or harmful radio interference or harm to the network or its functioning, the operator may make an application to the Director to be authorised to refuse connection, to disconnect such apparatus or to withdraw it from service and if the Director is satisfied that such action is justified the Director may authorise the operator to refuse connection, to disconnect such apparatus or to withdraw it from service.

(3) In case of emergency, an operator may disconnect apparatus if the protection of the network requires the equipment to be disconnected without delay and if the user can be offered, without delay and without costs for him, an alternative solution.

(4) If an operator disconnects apparatus under paragraph (3) he shall immediately inform the Director. The operator shall also provide the Director with such relevant information concerning the disconnection as he or she may request from the operator, as soon as may be thereafter.

(5) Where the Director issues an authorisation pursuant to paragraph (2) the Director shall also notify each such authorisation to the Commission.

Conformity assessment procedures

8. (1) The conformity assessment procedures identified in this Regulation shall be used to demonstrate the compliance of the apparatus with all the relevant essential requirements identified in Regulation 4.

(2) In order to demonstrate conformity to the essential requirements identified in Regulation 4, the manufacturer may choose from the relevant procedures applicable to the apparatus as follows

(a) for telecommunications terminal equipment, which does not make use of the spectrum allocated to terrestrial or space radio communication and receiving parts of radio equipment the procedures described in any one of Schedules 2, 4 or 5 shall apply,

(b) where a manufacturer has applied the harmonised standards referred to in Regulation 4(4) radio equipment not within the scope of paragraph (a) shall be subject to the procedures described in any one of Schedules 3, 4 or 5, or

(c) where a manufacturer has not applied or has only partially applied the harmonised standards referred to in Regulation 4(4), radio equipment not within the scope of paragraph (a) shall be subject to the procedures described in either Schedule 4 or 5.

(3) As an alternative to the use of paragraphs (a) to (c) above, compliance of the apparatus with the essential requirements identified in Regulation 4(1)(a) and (b) may be demonstrated using the procedures specified in Directive 73/23/EEC and Directive 89/336/EEC respectively, where the apparatus is within the scope of those Directives.

(4) Records and correspondence relating to the conformity assessment procedures referred to in paragraphs (2) and (3) carried out in the State shall be English, or in a language accepted by the notified body concerned.

Notified bodies

9. (1) The Director may from time to time appoint such persons as he or she sees fit to be notified bodies under these Regulations taking account of the criteria in Annex VI to the Directive. The Director may, in making such an appointment, attach such conditions thereto as he or she sees fit.

(2) The Director shall inform the Commission and other Member States of the names of the notified bodies appointed under paragraph (1).

(3) An appointment under paragraph (1)

(a) may be for a fixed or indefinite period;

(b) may be revoked by the Director at any time; and

(c) shall be revoked by the Director if he or she has reason to believe that the notified body in the State does not meet or has ceased to meet the conditions referred to in paragraph (1).

(4) The Director may amend or revoke any or all of the conditions, if any, attached under paragraph (1) to an appointment made under that paragraph, or attach additional conditions from time to time to such appointment for the efficient and proper functioning of the body in question.

(5) Where an appointment has been revoked under paragraph (4) the Director shall so inform the Commission and the other Member States.

CE marking

10. (1) Apparatus complying with all relevant essential requirements of these Regulations shall bear the CE conformity marking specified in Schedule 6, which indicates its conformity with all provisions of these Regulations and the Directive.

(2) It shall be the responsibility of the manufacturer, his or her authorised representative within the Community or the person responsible for placing the apparatus on the market to affix the marking referred to in paragraph (1).

(3) The CE marking shall be accompanied by —

(a) the identification number or numbers of the notified body or bodies, where the procedures identified in Schedules 3,4 or 5 are used, and

(b) in the case of radio equipment, the equipment class identifier, where such an identifier has been assigned in accordance with Article 4.1 of the Directive.

(4) Subject to paragraph (5), any other marking may be affixed to the equipment provided that the visibility and legibility of the CE marking is not thereby reduced.

(5) No apparatus, whether or not it complies with the relevant essential requirements, may bear any marking that is likely to deceive third parties as to the meaning and form of the CE marking specified in Schedule 6.

(6) The manufacturer shall identify the apparatus by —

(a) the name of the manufacturer or the person responsible for placing the apparatus on the market, and

(b) the type, and either or both the batch and serial numbers.

(7) Where the apparatus is subject to other Community Directives that concern other aspects and also provide for the affixing of the CE marking, the marking shall indicate that such apparatus also fulfils the provisions of that legislation. However, should that legislation allow the manufacturer, during a transitional period, to choose which arrangements to apply, the CE marking shall indicate that the apparatus fulfils the provisions only of those directives applied by the manufacturer. In this case, the particulars of those directives, as published in the Official Journal of the European Communities, must be given in the documents, notices or instructions required by those directives and accompanying such products.

Directions of Director

11. (1) The Director may, where he or she is of the opinion that any apparatus to which these Regulations apply does not comply with these Regulations, or in the case of radio equipment where he or she is of the opinion that it has caused or may cause harmful interference, by direction in writing, direct any person to do one or more of the following

(a) to withdraw the apparatus from the market or from service,

(b) not to place on the market, or put into service the apparatus,

(c) to refrain in total or in part from moving the apparatus, or

(d) to do or refrain from doing any other thing to comply with these Regulations and the Directive,

and the Director may take any other appropriate measures, including the seizing and removing of apparatus from the market to ensure compliance with these Regulations and the avoidance of harmful interference.

(2) The Director shall give the opportunity to any person to whom he or she has given a direction, or who is otherwise affected by measures taken by the Director under paragraph (1) to make representations to the Director. If, because of the urgency of the matter, this opportunity is not given before serving the direction or the taking of other measures, the Director shall give such opportunity, as soon as may be, thereafter.

(3) A direction given under this Regulation shall be in writing and —

(a) state the reasons upon which it is based, and

(b) advise the person of the right of appeal under Regulation 13.

(4) The Director may, where he or she considers it appropriate to do so, withdraw, or amend by a further direction in writing any direction given under this Regulation.

(5) A direction given under this Regulation may require that the measures to be taken or to be refrained from taking, be undertaken —

(a) immediately because of the urgency of the matter,

(b) from a specified date,

(c) by a specified date, or

(d) between specified dates.

(6) A direction given under this Regulation shall, subject to Regulation 13 take effect on the date specified therein.

(7) The Director shall in accordance with the provisions of Article 9 of the Directive notify the Commission of any relevant direction or other measures taken pursuant to paragraph (1).

(8) Where a person fails to comply with a direction given under this Regulation, the Director may, institute in a court of competent jurisdiction, proceedings for an order requiring the person to comply with the terms of the direction.

Service of Directions

12. (1) Subject to paragraphs (2) and (3), a direction under Regulation 11 shall be addressed to the person concerned by name and may be given to the person in one of the following ways—

(a) by delivering it to the person,

(b) by leaving it at the address at which the person carries on business or ordinarily resides or, in the case in which an address for service has been furnished, at that address,

(c) by sending it by post in a prepaid registered letter to the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, to that address,

(d) where there is a facility for receiving the text of the notice by electronic means at the address at which the person carries on business or ordinarily resides, by transmitting the text of the notice by such means to such address, provided that the notice is also delivered in any of the other ways referred to in this paragraph.

(2) Where a direction under Regulation 11 is to be given to a person who is the owner or occupier of land or property and the name of the person cannot be ascertained by reasonable inquiry, it may be addressed to the person by using the words “the owner” or, as the case may require, “the occupier”.

(3) For the purposes of this Regulation, a company within the meaning of the Companies Acts, 1963 to 1999, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

Right of appeal against a direction or other measure

13. (1) A person aggrieved by a direction given or other measure taken under Regulation 11 may appeal to the appropriate court against the giving of the direction or taking of the measure.

(2) An appeal under this Regulation shall state the grounds on which the appeal is made and be made by written notice, which shall be lodged with the appropriate office of the court by the appellant not later than 14 days from the date upon which the direction concerned was given to him or her or the measure was taken.

(3) A copy of the notice by which a person makes an appeal under this Regulation shall be given by him or her to the Director.

(4) Where an appeal is made under paragraph (1) the direction shall remain in force until the appeal is determined or withdrawn, subject to any decision to the contrary by the High Court.

(5) On the hearing of an appeal under this Regulation the appropriate court may, as it thinks fit, confirm the direction or measure concerned or annual the direction or measure and make any other such order as it considers appropriate.

(6) In this Regulation “the appropriate court” means-

(a) in case the estimated value of the apparatus concerned does not exceed £5,000, or such other amount as may stand specified for the time being by law as that Court's jurisdiction in tort, the District Court,

(b) in case the estimated value of the apparatus concerned does not exceed £30,000, or such other amount as may stand specified for the time being by law as that Court's jurisdiction in tort, the Circuit Court,

(c) in any case, the High Court.

(7) If, in relation to an appeal under this Regulation to the District Court, that court becomes of an opinion during the hearing of the appeal that the value of the apparatus, the subject of the appeal, exceeds that court's jurisdiction in tort, it may, if it so thinks fit, transfer the appeal to the Circuit Court or the High Court, whichever it considers appropriate having regard to its opinion of the value of the apparatus.

(8) If, in relation to an appeal under this Regulation to the Circuit Court, that court becomes of opinion during the hearing of the appeal that the value of the apparatus, the subject of the appeal, exceeds that courts' jurisdiction in tort, it may, if it so thinks fit, transfer the appeal to the High Court.

(9) Paragraphs (6) and (7) are without prejudice to the jurisdiction of a court (being either the District Court or the Circuit Court) to determine an appeal under this Regulation in relation to which it was, at the time of the hearing of the appeal, the appropriate court.

(10) An appeal under this Regulation to the District Court shall be determined by the judge of the District Court for the District Court district in which the apparatus concerned was placed on the market or the appellant ordinarily resides.

(11) An appeal under this Regulation to the Circuit Court shall be determined by the judge of the Circuit Court for the circuit in which the apparatus concerned was placed on the market or the appellant ordinarily resides.

Power of Director to make applications to High Court.

14. (1) If the Director is of the opinion that apparatus to which these Regulations apply is being or may be placed on the market and is likely to cause serious injury or damage to property or harmful interference, he or she may apply to the High Court for an order requiring any person placing or having placed the apparatus on the market, to withdraw the apparatus from the market or to prohibit any person intending to place apparatus on the market from doing so and the High Court may, on hearing the application grant relief of that nature.

(2) An application for an order under this Regulation shall be by motion, and the High Court when considering the matter may make such interim or interlocutory order, as it considers appropriate.

Appointment and powers of authorised officers

15. (1) The Director may appoint such and so many of his or her officers or officers of the Director of Consumer Affairs or any other persons whom he or she considers to be suitably qualified to be authorised officers for the purpose of these Regulations and the Directive.

(2) An authorised officer shall be furnished with a certificate of his or her appointment as an authorised officer and, when exercising a power under these Regulations, shall, if requested by any person affected, produce to the person the certificate for inspection by him or her.

(3) An authorised officer may, for the purposes of enabling the Director to exercise his or her functions under these Regulations and to ensure compliance with these Regulations and the Directive —

(a) enter at all reasonable times any premises, place, vehicle, vessel or aircraft at or in which he or she has reasonable grounds for suspecting that there is present apparatus to which these Regulations apply or that records relating to the aforesaid are kept,

(b) at such premises, place, vehicle, vessel or aircraft, search for such apparatus and records, inspect such apparatus and records and take copies of, or extracts from, any books, records (in whatever form kept) or other documents relating to such apparatus which he or she finds in the course of his or her inspection,

(c) require any person in or at the premises, place, vehicle, vessel or aircraft, the owner or person in charge thereof or any person employed in connection with any activity carried on therein or thereat to give him or her such information and to produce to him or her such books, records or other documents which are within that person's power of procurement as he or she, or the Director, may reasonably require for the purposes of his or her functions under these Regulations,

(d) in or at the premises, place, vehicle, vessel or aircraft, seize any apparatus or part thereof to which these Regulations or the Directive apply, or any books, records or other documents that he or she or the Director, may reasonably require for the purposes of his or her or its functions under these Regulations,

(e) carry out or have carried out therein or thereat such examinations, tests, inspections and checks of any apparatus found there, as he or she considers reasonable,

(f) secure for later inspection the premises, place, vessel, vehicle or aircraft or any records, books, documents or apparatus found there, and

(g) as regards any apparatus or any article or substance used in the manufacture of an apparatus the officer finds at or in such premises, place, vehicle, vessel or aircraft, require any person in charge or any person who appears to the officer to be in possession of the apparatus or the article or substance, to supply without payment, for test, examination or analysis sufficient samples thereof.

(4) Regulation 17 shall apply to anything seized under paragraph (3).

(5) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from the District Court under Regulation 16.

Search warrant

16. (1) If a judge of the District Court is satisfied, by information on oath of an authorised officer, that there are reasonable grounds for believing that there is present at or in any specified premises, place, vehicle, vessel or aircraft, apparatus which the officer requires to inspect for the purposes of these Regulations or which does not comply with these Regulations or evidence otherwise of or related to a suspected offence under these Regulations that judge may issue to the authorised officer a warrant under this Regulation.

(2) A warrant issued under this Regulation shall be expressed and shall operate to authorise any one or more of the following, the authorised officer to whom it is issued, or such number of members of the Garda Síochána or other persons authorised by the person to whom the warrant is granted, to enter at any time or times within one month from the date of the issue of the warrant (if need be by force) the premises, place, vehicle, vessel or aircraft named in the said information and there to search for and examine any apparatus as aforesaid and to seize anything which he or she believes to be evidence of, or evidence related to, a suspected offence under these Regulations and to exercise all or any of the powers conferred on an authorised officer under Regulation 15.

(3) An application under paragraph (1) in the case of a premises or place shall be made to the judge of the District Court in whose District Court district the premises or place is situated.

Provisions in relation to items seized

17. (1) Anything seized by the Director or an authorised officer under these Regulations may, without prejudice to paragraph (2), in the case of an authorised officer, be given by him or her to the Director, or any other person designated, for examination by him or her. If a thing aforesaid is given to the Director, or such other person for examination, as appropriate, it shall, as soon as may be after the examination is completed, be returned, as the Director considers appropriate, to the said authorised officer or to any other such officer to whom duties are, for the time being, assigned in relation to the matter concerned.

(2) Anything referred to in paragraph (1) which an authorised officer believes to be evidence of, or evidence related to, an offence under these Regulations (whether as a result of an examination referred to in that paragraph or not) may, without prejudice to the right of the Director, or other person, as appropriate, retain the thing for the purposes of an examination as aforesaid,—

(a) for such period from the date of seizure of the thing as is reasonable, or

(b) if proceedings are commenced under these Regulations in which the thing is to be used in evidence, until the conclusion of those proceedings, and shall then, as soon as may be after the expiration of that period or, as the case may be, the conclusion of those proceedings be delivered to the person who, in the opinion of the authorised officer to whom duties are, for the time being assigned in relation to the matter, is the owner of the thing.

(3) Anything seized by an authorised officer under these Regulations which that officer or any other such officer to whom duties are, for the time being, assigned in relation to the matter, becomes of the opinion is not evidence of, or evidence related to, an offence under these Regulations shall, as soon as may be after that officer becomes of that opinion, may be reclaimed upon notification of such an opinion, within a period of 6 months or else shall be forfeit.

(4) If the authorised officer concerned referred to in paragraph (2) or (3) becomes of the opinion that he or she is unable to ascertain the identity of the owner of the thing referred to in the said paragraph (2) or (3), as the case may be, and records that opinion in writing then, on and from that opinion being so recorded, the Police (Property) Act, 1897, shall apply to the thing in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.

Offences and Penalties

18. (1) Any person who contravenes or fail to comply with a provision of Regulation 5 (other than paragraph (6)), 6,7, (other than paragraph (5)), 8, 9, or 10 is guilty of an offence.

(2) A person who —

(a) obstructs or impedes an authorised officer in the exercise of his or her powers under these Regulations,

(b) refuses to produce any apparatus, article, substance, book, record or other document or to answer any question that an authorised officer lawfully requires him or her to produce or to answer,

(c) produces or causes to be produced any book, record or other document to an authorised officer which is false or misleading in any material respect knowing it to be so false or misleading,

(d) gives to an authorised officer any information, which is false or misleading in any material respect knowing it to be so false or misleading,

is guilty of an offence.

(3) Proceedings for an offence under this Regulation may be brought and prosecuted by the Director.

(4) Where an offence under these Regulations has been committed by a body corporate, and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a Director, manager, secretary, or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate is guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(5) A person guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding €3000 (£2,362.69).

Application of other Regulations to Apparatus

19. (1) The 1989 European Communities (Electromagnetic Compatibility) Regulations, 1998 (

S.I. No. 22 of 1998

) shall not apply to apparatus to which these Regulations apply, with the exception of the protection requirements in Article 4 and Annex II and the conformity assessment procedure in Article 10(1) and 10(2) and Annex I to, Council Directive 89/336/EEC.

(2) The European Communities (Low Voltage Electrical Equipment) Regulations, 1992 (S.I. 428 of 1992) shall not apply to apparatus to which these Regulations apply, with the exception of the objectives with respect to safety requirements in Article 2 and Annex 1 and the conformity assessment procedure in Annex III, Section B, and Annex IV to Council Directive 73/23/EEC.

Application of the

Wireless Telegraphy Act, 1926

20. (1) Notwithstanding

section 3

(1) of the

Wireless Telegraphy Act, 1926

, a person shall not be required to hold a licence under that Act to keep or have in his or her possession any apparatus for wireless telegraphy solely for the purpose of placing that apparatus on the market, within the meaning of the Directive.

(2) Nothing in the Wireless Telegraphy Acts, 1926 to 1988, shall operate so as to restrict or prevent any person from working or using an apparatus for wireless telegraphy, which is lawfully in their possession, or which is otherwise in compliance with the licensing requirements of those Acts for its intended purpose where it complies with the provisions of the Directive, save where such restriction or prevention is related to the effective and appropriate use of the radio frequency spectrum, avoidance of harmful interference or matters relating to public health.

Revocations

21. The following are revoked -

(a) Regulation 8 of the European Communities (Telecommunications Services) Regulations, 1992 (

S.I. No. 45 of 1992

),

(b) the European Communities (Telecommunications Terminal Equipment) Regulations, 1997 (

S.I. No. 73 of 1997

),

(c) the European Communities (Satellite Earth Station Equipment) Regulations, 1998 (

S.I. No. 179 of 1998

), and

(d) the Wireless Telegraphy (Control of Sale, Letting on Hire or Manufacture, and Importation of Radio Transceivers), Order 1981 (

S.I. No. 400 of 1981

).

SCHEDULE 1

Regulation 3

(1)

EQUIPMENT NOT COVERED BY THESE REGULATIONS

I, Mary O'Rourke, Minister for Public Enterprise, in exercise of the powers conferred on me by

section 3

of the

European Communities Act, 1972

(No. 27 of 1972), and for the purpose of giving effect to Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999

1

, hereby make the following regulations

Citation