S.I. No. 73/1997:

EUROPEAN COMMUNITIES (TELECOMMUNICATIONS TERMINAL EQUIPMENT) REGULATIONS, 1997.

EUROPEAN COMMUNITIES (TELECOMMUNICATIONS TERMINAL EQUIPMENT) REGULATIONS, 1997.

I, ALAN DUKES, Minister for Transport, Energy and Communications, 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 Council Directive No. 9½63/EEC,¹ as amended by Council Directive No. 93/68/EEC of 22 July 1993² hereby make the following Regulations.

1. These Regulations may be cited as the European Communities (Telecommunications Terminal Equipment) Regulations, 1997.

2. (1) In these Regulations

"authorised officer" means an officer appointed under Regulation 13 of these Regulations;

"CE mark" means a mark consisting of the symbol "CE" in the form shown in Annex VI (inserted by Council Directive No. 93/68/EEC) to the Directive;

"common technical regulation" means a measure adopted by the Commission in accordance with Article 6.2 of the Directive, a reference to which has been published in the Official Journal of the European Communities, and which shall be applied from the date specified in that publication;

"the Commission" means the Commission of the European Community;

"the Community" means the European Economic Community;

"the Directive" means Council Directive No. 9½63/EEC of 29 April 1991 is amended by Council Directive No. 93/68/EEC of 22 July 1993;

¹O.J. No. L 128/1 29 April 1991.

²O.J. No. L 220/1 30 August 1993.

"harmonised standard" means a technical specification adopted by, as appropriate, the European Committee for Standardisation (CEN), or the European Committee for Electro Technical Standardisation (CENELEC) or the European Telecommunication Standards Institute (ETSI), on the basis of a remit by the Commission in accordance with the provisions of Directive 83/189/EEC³ of 28 March 1983;

"Member State" means a member state of the European Union;

"the Minister" means the Minister for Transport, Energy and Communications;

"national standards" shall be construed in accordance with Regulation 8 (1);

"notified body" means a body which has been designated by the Minister or by another Member State of the European Union and duly notified to the Commission pursuant to the requirements of Article 10.1 of the Directive;

"place on the market" shall be construed in accordance with paragraph (2) of this Regulation;

"public telecommunications network" means the public telecommunications infrastructure which permits the conveyance of signals between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;

"standard" means a technical specification adopted by a recognised standards body for repeated or continuous application, compliance with which is not compulsory;

"technical specification" means a technical specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, packaging, marking and labelling;

"terminal equipment", in relation to telecommunications, means equipment to which a common technical regulation applies and which is stated in a declaration made by the manufacturer or supplier, as appropriate, as being intended to be connected to the public telecommunications network, that is to say--

³O.J. No. L 109/24 April 1993.

( a ) to be connected directly to the termination of a public telecommunications network, or

( b ) to interwork with a public telecommunications network being connected directly or indirectly to the termination of a public telecommunications network in order to send, process or receive information;

"telecommunications equipment" means equipment, in relation to telecommunications, other than terminal equipment, and--

( a ) which is capable of being connected to the public telecommunications network but which is not intended for such a purpose, and

( b ) which does not make use of a system of communication employing the radio frequency.

(2) In these Regulations "place on the market" means import, sell, offer for sale, expose for sale or supply within the State.

(3) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.

(4) ( a ) Where a notice is required or authorised by these Regulations to be sent or given to a person, other than the Minister, the notice shall be addressed to that person and may be given to him in any one of the following ways:

(i) by delivering it to him,

(ii) by leaving it at the address at which he carries on business or ordinarily resides,

(iii) by sending it by post in a prepaid registered letter addressed to him at the address at which he carries on business or ordinarily resides.

( b ) Where a notice is required by these Regulations to be given to the Minister it shall be sent by post in a prepaid registered letter to the Secretary, Department of Transport, Energy and Communications, 44 Kildare Street, Dublin 2.

( c ) For the purpose of paragraph (a) a company within the meaning of the Companies Act, 1963 , 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 any other place at which it carries on business.

3. These Regulations shall apply to terminal equipment and other equipment to which the Directive applies.

4. (1) A person shall not place on the market telecommunications equipment unless each item of equipment is--

( a ) accompanied by a declaration made by a manufacturer or a supplier, in the form set out in Annex VIII to the Directive,

( b ) accompanied by an operating manual, and

( c ) affixed with the CE mark and the symbol specified in Annex VII to the Directive in such a way that the symbol follows the CE mark and visually forms an integral part of the total marking.

(2) A person shall not affix the CE mark to telecommunications equipment to which the Directive and any other Directives apply unless the equipment complies with the requirements of the Directive and such other Directives.

(3) A person shall not affix a mark to telecommunications equipment which is likely to deceive any person as to the meaning and form of the CE mark specified in Annex VI or the symbol specified in Annex VII to the Directive.

(4) Where a Directive (other than the Directive) allows a manufacturer, during a transitional period, to choose which arrangements to apply, the CE mark affixed by the manufacturer shall indicate conformity to the provisions of those Directives which have been applied by the manufacturer and particulars of the Directives applied, as published in the Official Journal of the European Communities, shall be given in the documents, notices or instructions required by the Directives and accompanying the telecommunications equipment.

(5) Where telecommunications equipment is of a type which is placed on the market in the State for the first time and where that equipment has not been placed on the market in any other Member State, the equipment shall not be placed on the market until the manufacturer or supplier, as appropriate, has transmitted a copy of the documentation referred to at subparagraph (a) of paragraph (1) of this Regulation to a notified body in the State.

(6) The manufacturer or supplier of telecommunications equipment which is placed on the market in the State shall justify, once, at the request of the notified body concerned, the intended purpose of the equipment on the basis of its relevant technical characteristics, its functions and the market segment that equipment is intended for.

(7) In the event that telecommunications equipment is connected to the public telecommunications network the Minister may, by notice given in writing, as the Minister may decide, to either the public telecommunications network operator or the person who, in the opinion of the Minister bears responsibility for such connections, require that any such equipment shall be disconnected from, or cease to be used in conjunction with the public telecommunications network.

(8) A person shall not connect or use in conjunction with or cause to be connected to the public telecommunications network any telecommunications equipment.

(9) A notice given in writing under paragraph (7) of this Regulation shall be complied with.

(10) The Minister may, where he considers it appropriate to do so, withdraw a notice given under this Regulation.

5. (1) A person shall not place on the market terminal equipment unless each item of equipment is--

( a ) affixed with the CE mark, the identification number of the notified body and the symbol specified in Annex VI to the Directive, and

( b ) identified by means of the type and batch or serial number, or both the batch and serial numbers and by the name of the manufacturer or supplier or both the manufacturer and supplier responsible for placing it on the market.

(2) A person shall not affix the CE mark to terminal equipment to which the Directive and any other Directives apply unless, as regards the CE mark, the equipment complies with the requirements of the Directive and such other Directives.

(3) A person shall not affix a mark to terminal equipment which, in the opinion of the Minister, is likely to deceive any person as to the meaning and form of the CE mark, the identifying number of the notified body, or the symbol specified in Annex VI to the Directive.

(4) A mark other than the CE mark may be affixed to terminal equipment if the visibility and legibility of the CE mark, the identifying number of the notified body, and the symbol specified in Annex VI to the Directive are not thereby reduced.

(5) Where a Directive (other than the Directive) allows a manufacturer, during a transitional period, to choose which arrangements to apply, the CE mark affixed by the manufacturer shall indicate conformity to the provisions of those Directives which have been applied by the manufacturer and particulars of the Directives applied (as published in the Official Journal of the European Communities) shall be given in the documents, notices or instructions required by the Directives and accompanying the terminal equipment.

(6) A person shall not connect to, or use or cause to be connected or used, in conjunction with the public telecommunications network, terminal equipment to which these Regulations apply unless such terminal equipment is properly installed, maintained and used for its intended purpose.

(7) In the event that terminal equipment is connected to or used in conjunction with the public telecommunications network and is not being used for its intended purpose the Minister may, by notice given in writing, as the Minister may decide, to either the telecommunications network operator or the person who, in the opinion of the Minister bears responsibility for such connection or use, require that any such equipment shall be disconnected from, or cease to be used in conjunction with the public telecommunications network.

(8) A notice issued under this Regulation shall be complied with by the person to whom it is addressed.

(9) The Minister may, where he considers it appropriate to do so, withdraw a notice given under this Regulation.

6. (1) A person shall not affix the CE mark, the identification number of the notified body or the symbol specified in Annex VI to the Directive, to terminal equipment unless the terminal equipment has been subjected to either the EC type examination as described in Annex I to the Directive or to the EC declaration of conformity as described in Annex IV to the Directive.

(2) The manufacturer of terminal equipment or his authorised representative established within the European Economic Community or, in the case that neither the manufacturer nor his representative is established within the European Economic Community, the person who places the equipment on the market, may choose whether to subject terminal equipment to the EC type examination as described in Annex I to the Directive or to the EC declaration of conformity as described in Annex IV to the Directive.

(3) An EC type examination as described in Annex I to the Directive shall be accompanied by a declaration issued according to the EC declaration of conformity to type procedure as described in Annex II or III to the Directive.

(4) It shall be the duty of the manufacturer or his authorised representative to ensure that records and correspondence relating to the procedure referred to in Article 9 of the Directive shall be in the English language or in such other language as is acceptable to the notified body concerned.

(5) ( a ) Subject to subparagraph (b) the manufacturer or his authorised representative shall maintain the records, correspondence, certificates, decisions and reports from notified bodies, as appropriate, for a period of at least ten years after the last unit of the relevant type of terminal equipment is manufactured.

( b ) Where neither the manufacturer nor his authorised representative is established within the Community the obligation to maintain records, correspondence, certificates, decisions and reports from notified bodies, as appropriate, shall be the responsibility of the person who places the product on the Community market.

7. (1) The Minister may designate a body or bodies established in the Community to carry out the certification, product checks and associated surveillance tasks relating to the procedures referred to in Article 9 of the Directive and for the purposes of such designation shall apply the minimum criteria laid down in Annex V to the Directive and, in the case of any bodies that satisfy the relevant harmonised standards, those bodies shall be presumed to satisfy the criteria laid down in Annex V to the Directive.

(2) The Minister may designate a test laboratory, or test laboratories, established in the Community, for carrying out tests pertaining to the procedures referred to in Article 9 of the Directive and, for the purpose of such designation, may be advised by the body or bodies referred to at paragraph (1) of this Regulation and the body or bodies referred to at paragraph (1) of this Regulation shall, for the purpose of so advising the Minister, apply the criteria fixed by the appropriate parts of the harmonised standards.

(3) The Minister may annul the designation of a notified body or a test laboratory if the notified body or the test laboratory no longer meets the relevant criteria for designation.

(4) In order to facilitate the determination of conformity of terminal equipment with technical regulations and standards the body or bodies designated by the Minister under paragraph (1) of this Regulation shall recognise documentation issued by relevant bodies in third countries when agreements between the Community and the third country concerned have been concluded on the basis of a mutually satisfactory understanding.

(5) The notified body, or bodies, designated by the Minister under paragraph (1) of this Regulation, at the time when issuing an EC type examination certificate as referred to in Annex I to the Directive, or a decision on quality assurance assessment referred to in Annex IV to the Directive, shall issue at the same time an administrative approval for the connection of the terminal equipment concerned to public telecommunications networks.

8. (1) The Minister may approve standards for terminal equipment (being standards which implement harmonised standards applicable to terminal equipment) which standards shall be known and are referred to in this Regulation as "national standards".

(2) The Minister shall cause references to national standards (which implement the relevant harmonised standards applicable to terminal equipment) to be published in the Iris Oifigiúil.

9. (1) Where the Minister is of the opinion that terminal equipment which bears the markings specified in Annex VI to the Directive does not comply with the relevant essential requirements when properly used in accordance with the purpose intended by the manufacturer, the Minister, by a notice given to any person who has placed, or might place such terminal equipment on the market, may require the withdrawal of such products from the market if they have already been placed on the market, or prohibit or restrict their being placed on the market.

(2) A notice issued under paragraph (1) of this Regulation shall be complied with by the person to whom it is addressed.

(3) The Minister may, where he considers it appropriate to do so, withdraw a notice given under this Regulation.

10. (1) Where the Minister is of the opinion that terminal equipment to which these Regulations apply and which bears the CE mark is not in compliance with the requirements of the Directive and these Regulations, the Minister, by a notice given to any person who has placed, or might place such terminal equipment on the market, may require specified actions to be taken and require the withdrawal of such products from the market if they have already been placed on the market, or prohibit or restrict their being placed on the market, pending compliance with the action specified in the notice.

(2) A notice given under this Regulation shall be complied with by the person to whom it is addressed.

(3) The Minister may, where he considers it appropriate to do so, withdraw a notice given under this Regulation.

11. Regulation 2 of the European Communities (Telecommunications Services) Regulations, 1992 ( S.I. No. 45 of 1992 ), is hereby amended by the insertion in paragraph (1) of "other than terminal equipment to which the European Communities (Telecommunications Terminal Equipment) Regulations, 1997 apply" after "equipment" in the second place it occurs and the definition as so amended is set out in the Table to this Regulation.

TABLE

"Terminal equipment", in relation to telecommunications, means equipment (other than terminal equipment to which the European Communities (Telecommunications Terminal Equipment) Regulations, 1997 apply) intended to be connected to the public telecommunications network, that is to say--

( a ) connected directly to the termination of a public telecommunications network, or

( b ) to interwork with a public telecommunications network being connected directly or indirectly to the termination of a public telecommunications network.

12. (1) The Minister may appoint such and so many of his officers or other suitably qualified persons to be authorised officers for the purpose of these Regulations and the Directive.

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

(3) An authorised officer may, on production of his authorisation, if so required by a person so affected, for the purposes of these Regulations and of the Directive, do all or any of the following things, namely--

( a ) enter at all reasonable times any premises or place in which he has reasonable grounds for suspecting that there is telecommunications equipment or terminal equipment,

( b ) at such premises or place, inspect and take copies of, or extracts from, any books, records or other documents which he finds in the course of his inspection,

( c ) require any person at the premises or place and the owner or person in charge and any person employed in connection therewith to give him such information and to produce to him such books, documents and other records which are within that person's power of procurement as he may reasonably require for the purpose of exercising his functions under these Regulations or the Directive,

( d ) take possession of and remove for examination and checking by the Minister or a person nominated by the Minister, any telecommunications equipment or terminal equipment or part thereof and retain such equipment or part thereof for such time as he considers reasonable for the purpose of his functions under these Regulations or the Directive.

13. (1) Any person who does all or any of the following things, namely--

( a ) obstructs or interferes with an authorised officer in the course of exercising a power conferred on him by these Regulations or impedes the exercise by the officer of such power or fails or refuses to comply with a request made by, or answer a question asked by, an authorised officer pursuant to these Regulations or, in purported compliance with such request or in answer to such question, gives information to an officer that he knows to be false or misleading in a material respect,

( b ) contravenes Regulation 4 (1), 4 (2), 4 (3), 4 (4), 4 (5), 4 (6), 4 (8), 4 (9), 5 (1), 5 (2), 5 (3), 5 (4), 5 (5), 5 (6), 5 (8), 6, 9 (2), 10 (2) of these Regulations,

shall be guilty of an offence under these Regulations.

(2) Where an offence under these Regulations has been 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 any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.

(3) A person who is guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding £1,500.

(4) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under these Regulations may be instituted at any time within one year from the date on which the offence was committed.

14. (1) Where a person who is given a notice under Regulations 4 (7), 5 (7), 9 (1) or 10 (1) of these Regulations is aggrieved by the terms of the notice he may appeal to the appropriate Court for a review of the decision to issue the notice.

(2) The appeal shall be lodged by the applicant not later than 14 days from the date upon which the notice was given to him and in respect of which the appeal is made.

(3) An appellant under this Regulation shall at the same time advise the Minister by written notice of the appeal and shall state the grounds on which the appeal is made.

(4) The Court, on hearing evidence from both parties, may make such an order as it thinks fit.

(5) Notwithstanding the provisions of paragraph (1) of this Regulation, where the Minister is of the opinion that any terminal equipment or telecommunications equipment is likely to cause death or serious injury or damage to property, he may apply to the High Court for an order to prevent the use of such equipment and the Court may grant such an order on such terms and for such period as it thinks proper, having regard to the evidence presented by the Minister.

(6) In this Regulation "appropriate court" means

( a ) in the case that the estimated value of the terminal equipment does not exceed £5,000, the District Court,

( b ) in the case that the estimated value of the relevant apparatus does not exceed £30,000, the Circuit Court,

( c ) in any case the High Court.

15. (1) In this Regulation "relevant apparatus" means terminal equipment and telecommunications equipment to which these Regulations apply.

(2) If a Judge of the District Court is satisfied by information on oath of an authorised officer or a member of the Garda Síochána that there is reasonable grounds for believing that at any specified place, specified vehicle, or specified vessel relevant apparatus is to be found which does not comply with the provisions of the Directive or the provisions of these Regulations, that Judge may issue to the authorised officer or to the member of the Garda Síochána a search warrant.

(3) A search warrant issued under this Regulation shall be expressed and shall operate to authorise the authorised officer or the member of the Garda Síochána to whom it 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 place, vehicle or vessel named in the said information and there to search for and examine all such relevant apparatus and to seize and take away all or any part of such apparatus.

(4) A search warrant granted under this Regulation shall operate to authorise any one or more of the following, namely an authorised officer or any member of the Garda Síochána or other person authorised by the person to whom the warrant is granted to accompany and assist him in the exercise of the powers thereby conferred on him.

(5) The authorised officer or the member of the Garda Síochána to whom the warrant is granted under this Regulation may retain anything seized under this Regulation which he believes to be evidence of an offence or suspected offence relating to terminal equipment or telecommunications equipment for use as evidence in relation to any such offence, for such period from the date of the seizure as is reasonable or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings, and the authorised officer or member of the Garda Síochána shall, as soon as may be, deliver any such thing to the person who in his opinion is the owner thereof, and in case the authorised officer or member of the Garda Síochána decides that he is unable to ascertain such person, then, on and from the date of his decision, the Police (Property) Act, 1897, shall apply to the thing so seized.

(6) Any person who by act or omission impedes or obstructs an authorised officer, a member of the Garda Síochána or any other person in exercise of a power conferred by this Regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

16. A prosecution under these Regulations may be brought by the Minister.

GIVEN under my Official Seal, this 4th day of February, 1997.

ALAN DUKES,

Minister for Transport, Energy and Communications.

EXPLANATORY NOTE.

The purpose of these Regulations is to give legal effect to Council Directive 9½63/EEC, as amended by Council Directive 93/68/EEC, on the approximation of laws of EU Member States concerning telecommunications terminal equipment, including the mutual recognition of their conformity.