S.I. No. 248/2017 - European Union (Radio Equipment) Regulations 2017.

1. A conformity assessment body shall be a third-party body independent of the organisation or the product it assesses. A body belonging to a business association or professional federation representing undertakings involved in the design, manufacturing, provision, assembly, use or maintenance of radio equipment which it assesses, may, on condition that it can demonstrate independence and the absence of any conflict of interest, be considered such a body.

2. A conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment tasks shall not be the designer, manufacturer, supplier, installer, purchaser, owner, user or person undertaking maintenance of the radio equipment which they assess, nor the representative of any of those parties. This shall not preclude the use of assessed radio equipment that is necessary for the operations of the conformity assessment body or the use of such radio equipment for personal purposes.

3. A conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment tasks shall not be directly involved in the design, manufacture, marketing, installation, use or maintenance of that radio equipment, or represent the parties engaged in those activities. They shall not engage in any activity that may conflict with their independence of judgement or integrity in relation to conformity assessment activities for which they are notified. This shall also apply to consultancy services provided by the conformity assessment body.

4. A conformity assessment body shall ensure that the activities of a subsidiary of the body or a subcontractor undertaking activities under the responsibility of the body, if any, do not affect the confidentiality, objectivity or impartiality of its conformity assessment activities.

5. A conformity assessment body and its personnel shall carry out the conformity assessment activities with the highest degree of professional integrity and the requisite technical competence in the specific field and shall be free from all pressures and inducements, including financial, which might influence their judgement or the results of their conformity assessment activities, especially as regards persons or groups of persons with an interest in the results of those activities.

6. A conformity assessment body shall be capable of carrying out the conformity assessment tasks required of it under Schedule 3 or 4, and in relation to which it has been notified under Part 5, whether those tasks are carried out by the conformity assessment body itself or on its behalf or under its responsibility.

7. A conformity assessment body shall have at its disposal, at all times and for each conformity assessment procedure and each kind or category of products in relation to which it has been notified, the necessary—

(a) personnel with technical knowledge and sufficient and appropriate experience to perform the conformity assessment tasks, and

(b) descriptions of procedures in accordance with which conformity assessment is carried out ensuring the transparency and ability of reproduction of those procedures.

8. A conformity assessment body shall have appropriate policies and procedures in place that distinguish between the tasks carried out as a notified body and other activities.

9. A conformity assessment body shall have at its disposal, at all times and for each conformity assessment procedure and each kind or category of radio equipment in relation to which it has been notified, the necessary procedures for the performance of activities which take due account of the size of an undertaking, the sector in which it operates, its structure, the degree of complexity of the technology of the radio equipment in question and the mass or serial nature of the production process.

10. A conformity assessment body shall have the means necessary to perform the technical and administrative tasks connected with the conformity assessment activities in an appropriate manner and shall have access to all necessary equipment or facilities.

11. The personnel responsible for carrying out the conformity assessment activities shall have—

(a) sound technical and vocational training covering all the conformity assessment activities in relation to which the conformity assessment body has been notified,

(b) satisfactory knowledge of the requirements of the assessments they carry out and adequate authority to carry out those assessments,

(c) appropriate knowledge and understanding of the essential requirements, the applicable harmonised standards, the relevant Union harmonisation legislation and enactments within the meaning of section 2 of the Interpretation Act, implementing those requirements, and

(d) the ability to draw up EU-type certificates, or quality system approvals, records and reports demonstrating that assessments have been carried out.

12. A conformity assessment body shall ensure that it is impartial and shall ensure the impartiality of its top level management and assessment personnel. The remuneration of the top level management and assessment personnel of a conformity assessment body shall not depend on the number of assessments carried out or on the results of those assessments.

13. A conformity assessment body shall take out a contract of, or make another arrangement in respect of, insurance against liability for damages or costs that may be incurred in respect of any act done or omitted to be done in the performance or purported performance of conformity assessment activities by it.

14. The personnel of a conformity assessment body shall be bound to observe professional secrecy with regard to all information obtained in carrying out tasks required of it under Schedule 3 or 4, and in relation to which it has been notified under Part 5, except as regards information provided to the competent authority or the competent authorities of other Member States in which it carries out its activities and proprietary rights shall be protected.

15. A conformity assessment body shall participate in, or ensure that their assessment personnel are informed of, the relevant standardisation activities, the regulatory activities in the area of radio equipment and frequency planning, and the activities of any notified body coordination group established by the Commission under the relevant harmonisation legislation and shall apply, as general guidance, the administrative decisions and documents produced as a result of the work of that group.

16. Where a notified body subcontracts specific tasks connected with conformity assessment or has recourse to a subsidiary for the purpose of carrying out conformity assessment tasks, it shall ensure that the subcontractor or the subsidiary, as the case may be, meets the requirements specified in paragraphs 1 to 15, and shall inform the notifying authority accordingly.

17. A notified body shall take full responsibility for the tasks connected with conformity assessment performed by a subcontractor or a subsidiary, as the case may be, wherever such a subcontractor or subsidiary is established.

18. Conformity assessment activities may be subcontracted to a subcontractor or carried out by a subsidiary only with the agreement of the client of the notified body.

19. A notified body shall keep at the disposal of the notifying authority the relevant documents concerning the assessment of the qualifications of a subcontractor or a subsidiary and the work carried out by such entity under Regulations 19 to 24.

GIVEN under my official Seal,

6 June 2017.

DENIS NAUGHTEN,

Minister for Communications, Climate Action and Environment.

EXPLANATORY NOTE

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

The purpose of these Regulations is to give legal effect to Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and of giving full effect to Regulation (EC) No 765/2008 of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products.

1 OJ No. L153, 22.5.2014, p. 62

2 OJ No. L218, 13.8.2008, p 30

3 OJ No. L96, 29.3.2014, p.79

4 OJ No. L316, 14.11.2012, p. 12

6 O.J. No. L108,24.2.2002 p. 1

20. (1) The Commission for Communications Regulation is designated as the notifying authority in the State for the purposes of Article 23 of the Directive and these Regulations.

(2) The notifying authority shall—

(

a

) set up and carry out the necessary procedures for the assessment and notification of conformity assessment bodies, and

(

b

) carry out the monitoring of notified bodies, including compliance by a notified body with paragraphs 16, 17, 18 and 19 of Schedule 8.

(3) The notifying authority shall inform the European Commission of its procedures for the assessment and notification of conformity assessment bodies and the monitoring of notified bodies and any changes thereto.

(4) The notifying authority shall comply with the requirements of Article 24 of the Directive.

Application for Notification

21. (1) A conformity assessment body shall apply to the notifying authority for notification.

(2) The application under paragraph (1) shall be accompanied by—

(

a

) a description of—

(i) the conformity assessment activities,

(ii) the conformity assessment module or modules, and

(iii) the radio equipment,

in relation to which the conformity assessment body claims to have the competence to perform conformity assessment in accordance with these Regulations and relevant harmonised standards, and

(

b

) such other information and documentation as the notifying authority may require to satisfy itself that the conformity assessment body complies with the requirements specified in paragraphs 1 to 16 of Schedule 8 for the purposes of a notification.

(3) The application under paragraph (1) shall also be accompanied by—

(

a

) where one exists, a certificate of accreditation,

(

b

) where no certificate of accreditation exists, all documentation attesting that the conformity assessment body meets the requirements specified in paragraphs 1 to 15 of Schedule 8.

(4) For the purposes of an application under paragraph (1), the certificate of accreditation referred to in paragraph (3) (

a

) may be issued by the national accreditation body.

(5) Without prejudice to any other enactment, the national accreditation body may issue a certificate of accreditation for the purposes of an application under this Regulation.

Presumption of Conformity of Notified Bodies

22. Where a conformity assessment body demonstrates conformity with the criteria laid down in the relevant harmonised standards (or part of such standards) the references of which have been published in the Official Journal of the European Union, the body shall be presumed to comply with the requirements set out in paragraphs 1 to 15 of Schedule 8, in so far as the applicable harmonised standards (or part of such standards) apply to those requirements.

Notification Procedure

23. (1) The notifying authority may notify only a conformity assessment body which has satisfied the requirements laid down in paragraphs 1 to 15 of Schedule 8.

(2) The notifying authority shall notify the European Commission and the other Member States using the electronic notification tool developed and managed by the European Commission.

(3) The notification shall include full details of the conformity assessment activities, the conformity assessment module or modules and the radio equipment concerned and the relevant attestation of competence.

(4) Where a notification is not based on an accreditation certificate referred to in Regulation 21(3) (

a

), the notifying authority shall provide the European Commission and the other Member States with documentary evidence which attests to the conformity assessment bodys competence and the arrangements in place to ensure that that body will be monitored regularly and will continue to satisfy the requirements laid down in paragraphs 1 to 15 of Schedule 8.

(5) The conformity assessment body concerned may perform the activities of a notified body only where no objections are raised by the European Commission or the other Member States within two weeks of a notification where an accreditation certificate is used or within two months of a notification where accreditation is not used.

(6) Only a body which meets the criteria set out in paragraphs (1) to (5) shall be considered a notified body for the purposes of these Regulations.

(7) The notifying authority shall notify the European Commission and the other Member States of changes to the notification under this Regulation as it considers relevant.

Restriction, Suspension or Withdrawal of Notification

24. (1) Where the notifying authority has ascertained, or has been informed that a notified body—

(

a

) no longer meets the requirements specified in paragraphs 1 to 15 of Schedule 8, or

(

b

) that it is failing to fulfil its obligations under these Regulations, the notifying authority shall restrict, suspend or withdraw notification, as it considers appropriate, depending on the seriousness of the failure to meet those requirements or fulfil those obligations.

(2) The notifying authority shall immediately inform the European Commission and the other Member States of the matters referred to in paragraph (1).

(3) The notifying authority shall—

(

a

) give notice to the notified body advising the body of the restriction, suspension or withdrawal of a notification under paragraph (1) as soon as possible, and

(

b

) advise the notified body concerned that it may make representations to the authority in respect of the restriction, suspension or withdrawal, as the case may be, of a notification.

(4) Where—

(

a

) a restriction, suspension or withdrawal of a notification is made, or

(

b

) the notified body concerned has ceased its activity, the notifying authority shall take appropriate steps to ensure—

(i) that the files of that notified body are processed by another notified body, or

(ii) that those files are kept in a manner that will permit the notifying authority to have access to them for the performance by the authority of its functions under these Regulations.

Challenge of the Competence of Notified Bodies

25. (1) The notifying authority shall comply with paragraph 2 of Article 33 of the Directive.

(2) The notifying authority may give notice to the notified body concerned requesting the body to provide the authority with information or documents relating to or connected with the performance by the authority of its functions under paragraph (1).

(3) A notified body shall comply with a notice referred to in paragraph (2).

Operational Obligations of Notified Bodies

26. (1) A notified body shall carry out a conformity assessment in accordance with the conformity assessment procedures specified in Schedules 3 and 4.

(2) Conformity assessments shall be carried out in a proportionate manner, avoiding unnecessary burdens for economic operators.

(3) A notified body shall perform its activities taking due account of the size of an undertaking, the sector in which it operates, its structure, the degree of complexity of the radio equipment technology in question and the mass or serial nature of the production process.

(4) In performing its activities under paragraph (3), a notified body shall respect the degree of rigour and the level of protection required to ensure the compliance of the radio equipment with these Regulations.

(5) Where a notified body finds that the essential requirements or corresponding harmonised standards or other technical specifications have not been met by a manufacturer, it shall require that manufacturer to take appropriate corrective measures and shall not issue an EU-type examination certificate or a quality system approval.

(6) Where, in the course of the monitoring of conformity following the issue of an EU-type examination certificate or a quality system approval, a notified body finds that radio equipment is no longer in compliance, it shall give notice to the manufacturer requiring the manufacturer to take appropriate corrective measures and shall suspend or withdraw the EU-type examination certificate or the quality system approval if necessary.

(7) Where corrective measures referred to in paragraph (6) are not taken or do not have the required effect, the notified body shall, having considered any representations made to it by the manufacturer, restrict, suspend or withdraw any EU-type examination certificate or quality system approval, as appropriate.

(8) A notified body who has subcontracted specific tasks or has recourse to a subsidiary shall comply with paragraphs 17, 18, 19 and 20 of Schedule 8.

Appeal against decision of notified body

Appeal of Decision under Part 5

27. (1) Where—

(

a

) a manufacturer is aggrieved by a decision of a notified body under Regulation 26 which affects the manufacturer, or

(

b

) a notified body is aggrieved by a decision of the notifying authority under Regulation 24 to restrict, suspend or withdraw its notification,

the manufacturer, or as the case may be, notified body concerned may, within the period of 7 days beginning on the day on which the decision is taken or communicated to the manufacturer, or as the case may be, notified body, appeal to a judge of the District Court in the District Court District in which the manufacturer, or as the case may be, notified body, carries on business, against the decision and in determining the appeal the judge may—

(i) affirm the decision with or without modification, or

(ii) quash the decision.

(2) The judge of the District Court determining the appeal under paragraph (1) may make such order as to the payment of costs of the appeal as he or she considers appropriate.

Information Obligation of Notified Bodies

28. (1) A notified body shall inform the notifying authority of any of the following

(

a

) any refusal, restriction, suspension or withdrawal of an EU-type examination certificate or a quality system approval in accordance with the requirements of Schedules 3 and 4,

(

b

) any circumstances affecting the scope of or conditions for notification,

(

c

) any request for information which it has received in a notice given by the market surveillance authority or a market surveillance authority of a Member State other than the State regarding conformity assessment activities, or

(

d

) on receipt of a notice given by the notifying authority containing a request in that behalf, conformity assessment activities performed within the scope of the body’s notification and any other conformity assessment activity performed, including cross-border activities and subcontracting.

(2) A notified body shall, in accordance with the requirements of Schedules 3 and 4, provide other bodies notified under the Directive or these Regulations which perform conformity assessment activities of a similar nature in respect of radio equipment of the same class or categories with relevant information on matters relating to negative and, on request, positive conformity assessment results.

(3) A notified body shall provide information required under Schedules 3 and 4.

Coordination of Notified Bodies

29. (1) A notified body shall participate in the work of a sectoral group of notified bodies established by the European Commission pursuant to Article 38 of the Directive.

(2) A notified body shall participate in the work of a sectoral group under paragraph (1) either directly or by means of a designated representative.

(3) A notified body shall, on receipt of a notice given by the notifying authority containing a request in that behalf, provide information to the notifying authority concerning compliance by the notified body with its obligations under this Regulation.

PART 6

UNION MARKET SURVEILLANCE, CONTROL OF RADIO EQUIPMENT ENTERING UNION MARKET AND SAFEGUARD PROCEDURE

Union Market Surveillance, Control of Radio Equipment Entering Union Market And Market Surveillance Authority

30. (1) For the purposes of these Regulations and the Directive the Commission for Communications Regulation is designated as the market surveillance authority in the State.

(2) For the purposes of Article 39 of the Directive and the application to radio equipment, of Articles 15(3) and 16 to 29 of Regulation (EC) No. 765/2008, the market surveillance authority shall—

(

a

) be the market surveillance authority, within the meaning of Regulation (EC) No. 765/2008, in the State for the purposes of those Articles and in relation to that application,

(

b

) perform the functions assigned to a market surveillance authority in those Articles of Regulation (EC) No. 765/2008 and in relation to that application, and

(

c

) perform the functions specified in Articles 20, 22 and 23(2) of Regulation (EC) No. 765/2008 in relation to that application.

(3) Without prejudice to paragraph (2)(

b

), for the purposes of Article 19 of Regulation (EC) No. 765/2008, where, pursuant to that Article, the market surveillance authority considers it is necessary to do so, the market surveillance authority may destroy or otherwise render inoperable radio equipment presenting a serious risk referred to in that Article.

Procedure for Dealing with Radio Equipment Presenting a Risk at National Level

31. (1) Where the market surveillance authority has sufficient reason to believe that radio equipment presents a risk to the health and safety of persons or to other aspects of protection of the public interest, the authority shall, without delay, carry out an evaluation in relation to the radio equipment concerned in respect of all relevant requirements of these Regulations.

(2) The relevant economic operators shall co-operate as necessary with the market surveillance authority for the purpose of an evaluation carried out under paragraph (1).

(3) Where, in the course of carrying out the evaluation under paragraph (1), the market surveillance authority finds that the radio equipment does not comply with the requirements of these Regulations, it shall give notice without delay to the economic operator concerned informing the operator of its finding.

(4) Where, in the course of the evaluation under paragraph (1) the market surveillance authority has reason to believe that action is required to prevent a risk to the health and safety of persons or protection of the public interest, it may, having regard to the nature of the risk, give a direction, giving the reasons for the direction, to the economic operator requiring the economic operator to, within such period specified in the direction as the market surveillance authority considers reasonable—

(

a

) take all appropriate corrective action to bring the radio equipment into compliance with the requirements of these Regulations,

(

b

) withdraw the radio equipment from the market or from service, or

(

c

) recall the radio equipment.

(5) The market surveillance authority shall give notice to the notified body which carried out the conformity assessment of the product informing the body of the giving of the direction under paragraph (4).

(6) Where a direction is given under paragraph (4)—

(

a

) without prejudice to Regulation 36, Article 21 of Regulation (EC) No. 765/2008 shall apply to the measures specified in the direction, and

(

b

) the market surveillance authority shall ensure that any measure specified in that direction complies with Article 21 of Regulation (EC) No. 765/2008 and without prejudice to the generality of the foregoing, for the purposes of making representations, the market surveillance authority shall have regard to the period specified in Article 21 of Regulation (EC) No. 765/2008 in respect of the making of those representations.

(7) Where the market surveillance authority considers that non-compliance is not restricted to the State, the authority shall inform the European Commission and the other Member States of the results of the evaluation and of the giving of the direction to take action.

(8) The economic operator shall, within the time specified in the direction, comply with a direction given to the operator under paragraph (4).

Procedures Where Radio Equipment Continues to Present a Risk at National Level

32. (1) Where the relevant economic operator does not take adequate corrective action within the period specified in a direction given under Regulation 31(4), the market surveillance authority shall, without delay, take all appropriate provisional measures it considers necessary.

(2) The provisional measures which the market surveillance authority may take under paragraph (1) are—

(

a

) the prohibition or restriction of the radio equipment from being made available on the market,

(

b

) the withdrawal of the radio equipment from the market in the State, or

(

c

) the recall of the radio equipment from the market in the State.

(3) Where the market surveillance authority takes a measure specified in paragraph (2)—

(

a

) the authority shall give notice to the economic operator informing the operator of the measure concerned, and

(

b

) paragraph (6) of Regulation 31 shall apply to a notice under this paragraph as it applies to a direction under Regulation 31 subject to any other necessary modifications.

(4) An economic operator shall comply with a measure taken under paragraph (2) and a notice given under paragraph (3).

(5) The market surveillance authority shall inform the European Commission and other Member States, without delay, of a measure which the authority has taken under paragraph (2).

(6) The information provided under paragraph (5) shall—

(

a

) include all available details,

(

b

) without prejudice to the generality of subparagraph (

a

), include details of—

(i) the data necessary for the identification of the non-compliant radio equipment,

(ii) the origin of the radio equipment,

(iii) the nature of the non-compliance alleged and the risk involved,

(iv) the nature and duration of the measure taken, and

(v) the arguments put forward by the relevant economic operator,

and

(

c

) indicate, in the information, whether the non-compliance is due to either—

(i) the failure of the radio equipment to meet the relevant essential requirements or

(ii) shortcomings in the harmonised standards referred to in Regulation 15 conferring a presumption of conformity.

(7) Where another Member State initiates the procedure under Article 40 of the Directive—

(

a

) the market surveillance authority shall without delay inform the European Commission and the other Member States of—

(i) any measures adopted, and

(ii) any additional information at the disposal of the market surveillance authority relating to the non-compliance of the radio equipment concerned,

and

(

b

) where the market surveillance authority disagrees with the adopted national measure, the objections of the market surveillance authority.

(8) Where, within 3 months of the market surveillance authority informing, under paragraph (5), the European Commission and other Member States of a provisional measure taken, no objection has been raised by the European Commission or a Member State in respect of the measure, the provisional measure shall be deemed to be justified.

Union Safeguard Procedure

33. (1) Where, pursuant to Article 41 of the Directive, a national measure of a Member State other than the State is considered to be justified, the market surveillance authority shall—

(

a

) take the necessary measures to ensure that the non-compliant radio equipment is withdrawn or recalled from the market in the State, and

(

b

) inform the European Commission accordingly.

(2) Where, pursuant to Article 41 of the Directive a national measure of a Member State other than the State is considered to be unjustified, the market surveillance authority shall withdraw the measure.

Compliant Radio Equipment Presenting Risk

34. (1) Where having carried out an evaluation under Regulation 31(1), the market surveillance authority is of the opinion that radio equipment that is in compliance with these Regulations nonetheless presents a risk to the health or safety of persons or to the protection of the public interest, it shall give a direction to the economic operator requiring the economic operator to do any of the following within such period specified in the direction as the market surveillance authority considers reasonable

(

a

) to take all appropriate measures to ensure that the radio equipment concerned, when placed on the market, no longer presents that risk;

(

b

) to withdraw the radio equipment from the market in the State;

(

c

) to recall the radio equipment from the market in the State;

(

d

) to do or refrain from doing anything in order to comply with these Regulations and the Directive.

(2) The economic operator shall, within the time specified in the direction, comply with a direction given to the operator under paragraph (1).

(3) The market surveillance authority shall give notice to the European Commission and the other Member States of a direction given under paragraph (1) which shall include all available details, in particular—

(

a

) the data necessary for the identification of the non-compliant radio equipment,

(

b

) the origin and supply chain of the radio equipment,

(

c

) the nature of the non-compliance alleged and the risk involved, and

(

d

) the nature and duration of the national measures taken.

Formal Non-Compliance

35. (1)(

a

) Without prejudice to Regulation 31 or 32, where the market surveillance authority makes one of the findings specified in paragraph (

b

), the authority shall give a direction to the relevant economic operator to take specified measures to end the non-compliance concerned.

(

b

) The findings referred to in paragraph (

a

) are

(i) the CE marking has been affixed in violation of—

(I) Article 30 of Regulation (EC) No. 765/2008, or

(II) Regulation 18;

(ii) the CE marking has not been affixed;

(iii) the identification number of the notified body, where the conformity assessment procedure set out in Schedule 4 is applied, has been affixed in contravention of Regulation 18 or has not been affixed;

(iv) the EU declaration of conformity has not been drawn up;

(v) the EU declaration of conformity has not been drawn up correctly;

(vi) the technical documentation is either not available or not complete;

(vii) the information referred to in subparagraphs (

d

) and (

f

) of Regulation 9(2) or subparagraph (

h

) of Regulation 11(2) is absent, false or incomplete;

(viii) information on the intended use of radio equipment, the EU declaration of conformity or usage restrictions as set out in subparagraphs (

g

), (

h

) and (i) of Regulation 9(2) does not accompany the radio equipment;

(ix) an economic operator has not complied with Regulation 14.

(2) The economic operator shall, within the time specified in the direction, comply with a direction given to the operator under paragraph (1).

(3) Where the relevant economic operator does not take adequate corrective action within the period specified in a direction given under paragraph (1) the market surveillance authority may, in respect of the non-compliance, take all appropriate measures to—

(

a

) restrict or prohibit the radio equipment from being made available on the market,

(

b

) withdraw the radio equipment from the market in the State, or

(

c

) recall the radio equipment from the market in the State.

(4) Where the market surveillance authority takes a measure specified in paragraph (3)—

(

a

) the authority shall give notice to the economic operator informing the economic operator of the measure concerned, and

(

b

) paragraph (6) of Regulation 31 shall apply to a notice under this paragraph as it applies to a direction under Regulation 31 subject to any other necessary modifications.

(5) An economic operator shall comply with a measure taken under paragraph (3) and a notice under paragraph (4).

PART 7

ENFORCEMENT

Directions

36. (1) Subject to paragraph (7), where the market surveillance authority proposes to give a direction, the authority shall, before giving the direction, give notice of the proposal to the person and that notice shall contain a statement in summary form of the opinion of the market surveillance authority and a statement that the person may, within 14 days of receipt of the notice, make representations in writing to the authority in relation to the proposal, and any such representations made by a person to the authority within that period shall be considered by the authority in deciding whether to give the direction to the person.

(2) A direction under paragraph (1) may be given to one or more than one economic operator to whom the notice relates.

(3) A direction under paragraph (1) shall—

(

a

) state the reason for the opinion referred to in paragraph (1),

(

b

) identify the provision of these Regulations in respect of which the opinion is held,

(

c

) specify the action to be taken in respect of the radio equipment by the person to whom the direction is given and the period specified in the direction within which the action shall be taken,

(

d

) inform the person of the requirement to confirm compliance with the direction in accordance with paragraph (9),

(

e

) inform the person of the right to appeal the direction under Regulation 37,

(

f

) include an address for service of an appeal,

(

g

) be signed and dated by the market surveillance authority, and

(

h

) state that if the person to whom it is given fails to comply with the direction the person shall be guilty of an offence and liable on conviction to the penalty referred to in paragraph (15).

(4) A direction may require that the action required 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.

(5) A direction may include—

(

a

) the action to be taken to bring radio equipment into compliance with the requirements of these Regulations,

(

b

) a requirement to bring to the attention of any person who may be affected by the non-compliance or to the notice of the public generally.

(6) A person to whom a direction has been given may appeal the direction under Regulation 37.

(7) Where, in the opinion of the market surveillance authority—

(

a

) urgent action is required which is justified in particular by public health or safety requirements, and

(

b

) it is necessary because of the gravity of the non-compliance with the requirements of these Regulations, to immediately give the person a direction,

the authority may, notwithstanding paragraphs (1) and (2), give the person a direction.

(8) Where paragraph (7) applies, the market surveillance authority shall give the person to whom the direction is given the opportunity to make representations to it in writing as soon as may be after the giving of the direction.

(9) As soon as practicable after complying, and in any case not later than 7 days after the date specified in the direction by which it is to be complied with, a person to whom a direction has been given shall notify the market surveillance authority in writing that the direction has been complied with.

(10) Within one month of receiving a notification under paragraph (9), where the market surveillance authority is satisfied that the direction has been complied with, the authority shall give notice to the to the person concerned confirming that compliance.

(11) The market surveillance authority may, where it considers it appropriate to do so, by notice in writing to the person to whom a direction was given, withdraw a direction.

(12) A direction shall, subject to paragraphs (4) and (5) of Regulation 37, take effect on the date specified in the direction.

(13) Where a person fails to comply with a direction the market surveillance authority may apply to the judge of the District Court in whose District Court district the person resides or carries on business for an order requiring the person to comply with the direction and the Court may make an order directing the person to comply with the direction.

(14) A person to whom a direction has been given shall not—

(

a

) pending the determination of any appeal under Regulation 37, deal with radio equipment or other matter to which the direction relates, other than in accordance with the terms of the direction, or

(

b

) if the direction is confirmed or varied on appeal under Regulation 37, deal with radio equipment or any other matter to which the direction relates other than in accordance with the terms of the direction as confirmed or varied.

(15) A person who fails to comply with paragraph (14) shall be guilty of an offence and shall be liable on summary conviction to a class A fine.

(16) This Regulation shall not operate to prevent or restrict—

(

a

) the entitlement of any person to bring proceedings for the purpose of securing compliance with these Regulations or Regulation (EC) No. 765/2008, or

(

b

) the bringing or prosecuting of any proceedings for an offence under these Regulations.

Right of Appeal Against a Direction, Notice or Measure of Market Surveillance Authority

37. (1) A person aggrieved by—

(

a

) a direction given by the market surveillance authority,

(

b

) a notice given by the market surveillance authority under Regulation 32(3) or 35(4), or

(

c

) a measure taken under Regulation 32(1) or 35(3) by the market surveillance authority,

may appeal to the appropriate court against the direction or notice given or the measure taken.

(2) A notice of an appeal shall contain a statement of 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 or notice 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 market surveillance authority not less than 48 hours before the hearing of the appeal and the authority shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal and at the hearing of any application referred to it under paragraph (4).

(4) The bringing of an appeal shall not have the effect of suspending the operation of the direction, notice or measure as the case may be, but the appropriate court to which the appeal has been made, may, on application to it by the appellant, suspend its operation until the appeal is determined or withdrawn.

(5) On the hearing of an appeal the appropriate court may confirm, vary or revoke the direction, notice or measure as the case may be.

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

(

a

) in case the estimated value of the radio equipment to which the direction or notice given or measure taken relates does not exceed €15,000 or such amount as may stand specified for the time being by law as that Courts jurisdiction in tort, the District Court,

(

b

) in case the estimated value of the radio equipment to which the direction or notice given or measure taken relates does not exceed €75,000 or such amount as may stand specified for the time being by law as that Courts jurisdiction in tort, the Circuit Court, and

(

c

) in any other case, the High Court.

(7) If, in relation to an appeal under this Regulation to the District Court, that court becomes of the opinion during the hearing of the appeal that the value of the radio equipment, the subject of the appeal, exceeds that courts 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 radio equipment.

(8) If, in relation to an appeal under this Regulation to the Circuit Court, that court becomes of the opinion during the hearing of the appeal that the value of the radio equipment, 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 (7) and (8) 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 radio equipment 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 radio equipment concerned was placed on the market or the appellant ordinarily resides.

Power to Make Applications to High Court.

38. (1) If, of the opinion that radio equipment to which these Regulations apply—

(

a

) is being or may be placed on the market, and

(

b

) is likely to cause serious injury or damage to property or harmful interference,

the market surveillance authority may apply to the High Court for an order under paragraph (5).

(2) An application under paragraph (1) shall be made by way of motion.

(3) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the person alleged to be responsible for placing or proposing to place the radio equipment on the market and on being served with such a copy, the person becomes the respondent to the application.

(4) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under paragraph (1) and the Court may not refuse interim or interlocutory relief merely because the market surveillance authority may not suffer damage if relief were not granted pending determination of the application.

(5) On hearing an application under paragraph (1), the High Court may, if it considers it appropriate to do so, make either or both of the following orders

(

a

) if it appears to the Court that the respondent has placed the radio equipment on the market, an order requiring the respondent to withdraw the radio equipment from the market;

(

b

) if it appears to the Court that the respondent is proposing or continuing to place the radio equipment on the market, an order prohibiting the respondent from doing or continuing to do so.

(6) If the High Court makes an order under paragraph (5), it may make such ancillary orders as it considers appropriate.

Inspections and Surveillance

39. (1) The market surveillance authority shall carry out inspections of radio equipment to which these Regulations apply where appropriate—

(

a

) on its entry into the State (where the State is their place of entry into the Union), or

(

b

) at the storage or manufacturing site of such radio equipment.

(2) Without prejudice to the generality of paragraph (1), the market surveillance authority shall organise and perform appropriate surveillance of radio equipment made available on the market or put into service, taking due account of the presumption of the conformity of radio equipment bearing a CE marking, including the requirements arising from Regulation 30 and paragraph (6) of Regulation 31 and the performance of functions in respect of an Article of Regulation (EC) No. 765/2008 referred to in these Regulations.

Appointment of Authorised Officers

40. (1) The market surveillance authority may appoint such and so many members of staff of the authority, or other person whom the authority 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 and shall, when exercising a power conferred on him or her under these Regulations, if requested by a person affected, produce to the person the certificate or a copy of it.

(3) The market surveillance authority may terminate the appointment of an authorised officer appointed by the authority whether or not the appointment was for a fixed period.

(4) An appointment of an authorised officer ceases—

(

a

) if it is terminated under paragraph (3),

(

b

) if it is for a fixed period, on the expiry of that period, or

(

c

) if the person appointed is a member of staff of the market surveillance authority, upon the person ceasing to be such a member of staff.

Powers of Authorised Officers

41. (1) An authorised officer shall, for the purposes of all or any of these Regulations and of ensuring compliance with their requirements, have power to do any or all of the following

(

a

) subject to paragraph (4) or (5), at all reasonable times enter and examine any place at which there are reasonable grounds to believe that radio equipment is being kept or has been manufactured, stored, distributed, supplied, placed on the market, made available on the market or put into service or that records relating to the radio equipment are kept, and search and inspect the place, any process being carried out and any radio equipment or records found at that place;

(

b

) secure for later inspection a place referred to in subparagraph (

a

) or part of that place, or radio equipment or records kept at that place and require that the place, part thereof, radio equipment or records or any other thing kept at that place as the authorised officer considers appropriate having regard to his or her functions is or are left undisturbed for so long as is reasonably necessary for the purpose of any search, examination, investigation, inspection or inquiry;

(

c

) require any person in charge of, or employed in, a place referred to in subparagraph (

a

) to produce to the authorised officer such books, documents or records (and in the case of such information in a non-legible form to reproduce it in a permanent legible form) that are in the person’s power, possession or control or to give to the authorised officer such information as the officer may reasonably require in relation to any entries in such records;

(

d

) inspect and take copies of or extracts from any such books, documents or records (including in the case of information in non-legible form a copy of or extract from such information in a permanent legible form) or require that such a copy be provided;

(

e

) require a person at a place referred to in subparagraph (

a

) by whom or on whose behalf a computer is or has been used to produce or store records or any person having control of, or otherwise concerned with the operation of the computer, to afford the authorised officer access thereto and such reasonable assistance as the authorised officer may require;

(

f

) remove and detain, where the officer has reasonable cause to suspect that there has been a contravention of these Regulations, radio equipment or records (including documents stored in a non-legible form) and any copies taken for such period as the authorised officer considers reasonably to be necessary for further examination or until the conclusion of any legal proceedings;

(

g

) require that records at a place referred to in subparagraph (

a

) be maintained for such period as the authorised officer considers reasonably to be necessary;

(

h

) require any person to give the authorised officer such information in relation to radio equipment or part thereof or any article or substance or process used in the manufacture of radio equipment as the authorised officer may reasonably require for the purposes of any search, examination, investigation, inspection or inquiry under these Regulations;

(

i

) require by notice, at a time and place specified in the notice, any person (including the person in charge) to give the authorised officer any information that the authorised officer may reasonably require in relation to such place, any radio equipment or part of the place, activity, installation or procedure at such place, and to produce to the authorised officer any records that are in that person’s power, possession or control;

(

j

) examine any person whom the authorised officer reasonably believes to be able to give to the authorised officer information relevant to any search, examination, investigation, inspection or inquiry under these Regulations and require the person to answer such questions as the authorised officer may ask relative to the search, examination, investigation, inspection or inquiry and to sign a declaration of the truth of the answers;

(

k

) where appropriate, install, use and maintain at a place referred to in subparagraph (

a

) monitoring instruments or systems or take any measurements or photographs or make any tape, electronic or other recordings that the authorised officer considers necessary for the purposes of any search, examination, investigation, inspection or inquiry under these Regulations;

(

l

) as regards any radio equipment or any article or substance used in the manufacture of radio equipment the authorised officer finds at a place referred to in subparagraph (

a

), require any person in charge of the place, or any person who appears to the authorised officer to be in possession of the radio equipment or the article or substance, to supply without charge or payment, for test, examination or analysis sufficient samples thereof;

(

m

) take possession of and detain any radio equipment or part thereof or any article or substance used in the manufacture of radio equipment kept at a place referred to in subparagraph (

a

) which appears to the authorised officer to be in contravention of these Regulations for so long as is necessary for all or any of the following purposes, namely

(i) to examine or arrange for the examination, testing or analysis of it under subparagraph (

o

);

(ii) to ensure that it is not tampered with before the examination, testing or analysis of it is completed;

(iii) to ensure that it is available for use as evidence in any proceedings;

(

n

) cause any radio equipment or part thereof or any article or substance used in the manufacture of radio equipment found at a place referred to in subparagraph (

a

) which appears to the authorised officer to be in contravention of these Regulations to be dismantled or subjected to any process, test or analysis (but not so as to damage or destroy it unless this is in the circumstances necessary for the purposes of these Regulations) and where an authorised officer proposes to exercise this power in the case of radio equipment or an article or substance used in the manufacture of radio equipment found at a place referred to in subparagraph (

a

), the authorised officer shall, if so requested by a person who at the time is present at or in, and has responsibilities in relation to, that place, and if it is practicable and safe to do so, cause anything which is to be done by virtue of that power to be done in the presence of that person;

(

o

) require any person to afford the authorised officer such facilities and assistance within the person’s power, control or responsibilities as are reasonably necessary to enable the authorised officer to exercise any of the powers conferred on him or her by these Regulations.

(2) Before exercising the power conferred by subparagraph (

m

) or (

n

) of paragraph (1) in respect of any radio equipment, article or substance, an authorised officer shall, in so far as it is reasonably practicable to do so, consult such persons as appear to him or her to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he or she proposes to do under that power.

(3) Where, under the power conferred by subparagraph (

m

) or (

n

) of paragraph (1) an authorised officer takes possession of any radio equipment, article or substance found at or in any place, the authorised officer shall, if it is practicable for him or her to do so, take a sample thereof and give to a responsible person at the place a portion of the sample marked by the authorised officer in a manner sufficient to identify it.

(4) 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 42 authorising such entry.

(5) Where an authorised officer in the exercise of his or her powers under this Regulation is prevented from entering any place, an application may be made to the District Court under Regulation 42 for a warrant authorising such entry.

(6) A statement or admission made by a person pursuant to a requirement under subparagraph (

h

), (i) or (

j

) of paragraph (1) shall not be admissible in proceedings brought against that person for an offence (other than an offence under paragraph (2) of Regulation 44).

(7) Where any measure has been taken or notice given by the market surveillance authority under this Regulation or Regulation 32, 33, or 35, the costs of any removal, detention, seizure, destruction, rendering inoperable or disposal for the purposes of these Regulations may be charged to the economic operator, the manager of the place where the product was found or the private importer, where known.

(8)(

a

) In this Regulation “place” means any structure, premises, land or other location or part thereof and includes any container, railway wagon, vessel, aircraft or other vehicle.

(

b

) In this Regulation—

“person in charge” means, in relation to a place—

(i) the person under whose direction and control the activities at that place are being conducted, or

(ii) the person whom the authorised officer has reasonable grounds for believing is in control of that place.

(

c

) In this Regulation—

“record” includes any memorandum, book, report, statement, register, plan, chart, map, drawing, specification, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or images or both), any form in which data (within the meaning of the Data Protection Acts 1988 and 2003) are held, any form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically, and anything that is a part or copy, in any form, of any of, or any combination of, the foregoing.

Search Warrant

42. (1) Without prejudice to the powers conferred on an authorised officer by any provision of these Regulations, an authorised officer may, for the purposes of an investigation into an offence under these Regulation, apply to a judge of the District Court for a warrant in relation to any place.

(2) Where, on the hearing of an application under paragraph (5) of Regulation 42 or paragraph (1), a judge of the District Court is satisfied on sworn information of the authorised officer that he or she—

(

a

) has been prevented from entering any place that is not a private dwelling,

(

b

) has reasonable grounds for believing that relevant records are kept at a place that comprises, of forms part of, a private dwelling, or

(

c

) has reasonable grounds for suspecting that evidence of, or relating to the commission of an offence under these Regulations is to be found in any place,

that judge may issue to the authorised officer a warrant under this Regulation authorising one or more than one authorised officer accompanied, if the judge considers it appropriate to so provide, by such number of members of te Garda Síochána as may be specified in the warrant, at any time within 4 weeks from the date of issue of the warrant, to enter, if necessary by force, the place or private dwelling and exercise any of the powers referred to in Regulation 42.

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

(4) In this Regulation “place” has the meaning assigned to it by Regulation 41(8)(

a

).

PART 8

MISCELLANEOUS

Giving of Direction, Notice or Other Document

43. (1) Subject to paragraphs (2) and (3), a direction, notice or other document that is required to be given to a person by these Regulations 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;

(

e

) if the address at which the person ordinarily resides cannot be ascertained by reasonable inquiry and the notice relates to a premises, by delivering to the premises or by affixing it in a conspicuous position on or near the premises.

(2) Where a direction 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 Act 2014

or an existing company within the meaning of that Act 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.

(4) Where an opinion, finding, statement or decision of the competent authority or market surveillance authority is contained in a document which—

(

a

) purports to have been made by or at the direction of the competent authority or market surveillance authority, as the case may be, and

(

b

) is produced in evidence by an officer of the competent authority or market surveillance authority, as the case may be, or by an authorised officer in any proceedings,

such document shall be admissible in evidence and shall be evidence of any such opinion, finding, statement or decision in such proceedings without further proof.

Offences and Penalties

44. (1) A person who contravenes or fails to comply with any of the following shall be guilty of an offence

(

a

) paragraph (2) or (3) of Regulation 4;

(

b

) subparagraph (

a

), (

b

) or (

c

) of Regulation 5 (3);

(

c

) Regulation 9;

(

d

) paragraph (2) of Regulation 10;

(

e

) Regulation 11, 12, 14, 16, or 17;

(

f

) paragraph (1), (3) or (4) of Regulation 18;

(

g

) paragraph (2) or (5) of Regulation 19;

(

h

) paragraph (6) of Regulation 23;

(

i

) paragraph (3) of Regulation 25;

(

j

) paragraph (1), (5), (6) or (7) of Regulation 26;

(

j

) Regulation 28;

(

k

) paragraph (2) or (8) of Regulation 31;

(

l

) paragraph (4) of Regulation 32;

(

m

) paragraph (2) or (5) of Regulation 35;

(

n

) paragraph (2) of Regulation 34.

(2) A person shall be guilty of an offence who—

(

a

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

(

b

) refuses to produce any radio equipment, 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, or

(

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.

(3) A person who falsely represents himself or herself to be an authorised officer shall be guilty of an offence.

(4) A person guilty of an offence under this Regulation shall be liable on summary conviction to a class A fine.

(5) Summary proceedings for an offence under this Regulation may be brought and prosecuted by the market surveillance authority.

(6) Where an offence under these Regulations is committed by a body corporate and is proved to have been so 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 such capacity, that person shall, as well as the body corporate, be 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.

(7) Where the affairs of a body corporate are managed by its members, paragraph (6) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(8) In this Regulation “record” has the meaning assigned to it by Regulation 41 (8) (

c

).

Review and Reporting

45. (1) The market surveillance authority shall submit to the European Commission regular reports on the application of the Directive by 12 June 2017 and at least every two years thereafter.

(2) The reports prepared and submitted in accordance with paragraph (1) shall contain a presentation of the market surveillance activities performed by the market surveillance authority and provide information on whether and to what extent compliance with the requirements of the Directive has been attained, including in particular requirements on identification of economic operators.

Application of the

Wireless Telegraphy Act, 1926

46. (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 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.

Revocation

47. The Regulations of 2001 are revoked.

Transitional Provisions and Continuation of Regulations of 2001

48. (1) A person may, before 13 June 2017, place on the market or put into service radio equipment to which the Regulations of 2001 apply.

(2) A person may, at any time, make available on the market radio equipment referred to in paragraph (1).

(3) Notwithstanding their revocation under Regulation 47, the Regulations of 2001 shall continue to apply to a product specified in the Regulations of 2001 which is—

(

a

) placed on the market or put into service in accordance with paragraph (1), or

(

b

) made available on the market in accordance with paragraph (2).

(4) A person who, immediately before the coming into operation of these Regulations, was an authorised officer under the Regulations of 2001 shall be deemed to be an authorised officer appointed under these Regulations and, accordingly, paragraph (4) of Regulation 41 shall apply in respect of that person.

SCHEDULE 1

Equipment to Which These Regulations Do Not Apply

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

9

th June

, 2017.

I, DENIS NAUGHTEN Minister for Communications, Climate Action and Environment, 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 2014/53/EU of the European Parliament and of the Council of 16 April 2014

1

, and of giving full effect to Regulation (EC) No 765/2008 of 9 July 2008

2

hereby make the following regulations

PART 1

PRELIMINARY

Citation