4 The radio equipment market
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15339/12
+ ADDs 1-2 COM(12) 584
| Draft Directive: "The harmonisation of the laws of the Member States relating to the making available on the market of radio equipment"
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| Legal base | Articles 26 and 114 TFEU; ordinary legislative procedure; QMV
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| Department | Business, Innovation and Skills
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| Basis of consideration | Minister's letter of 24 April 2013
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| Previous Committee Report | HC 86-xx (2012-13), chapter 3 (21 November 2012)
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| Discussion in Council | To be determined
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
4.1 The radio communications and telecommunications equipment
(RTTE) industries sector encompasses all products using the radio
frequency spectrum (e.g. car door openers, mobile communications
equipment such as cellular telephones, CB radio, broadcast transmitters,
etc.) and all equipment related to public telecommunications networks
(e.g. ADSL modems, telephones, and telephone switches).
The draft Directive
4.2 This Commission proposal is for a Directive on Radio Equipment
to replace the current RTTE Directive 1995/5/EC on Radio and Telecommunications
Terminal Equipment. The Commission said that it aimed to make
sure all market players comply with the rules regarding the avoidance
of interference, so that consumers did not have problems when
opening car doors, monitoring their babies or listening to the
radio. The Commission also proposed to clarify and simplify the
Directive, to facilitate its application and to eliminate unnecessary
burdens, ultimately increasing all stakeholders' confidence in
the regulatory framework. The background to the Directive is
set out in our report of 21 November 2012. We held it under scrutiny
pending further information from the Minister.
4.3 We are also drew this chapter of our Report
to the attention of the Business, Innovation and Skills Committee.[8]
The Minister's letter of 24 April 2013
4.4 The Minister begins by apologising for the
delay in responding to the Committee.
4.5 He then says that a UK Consultation on the
proposal is planned for early 2013 and that he will "keep
the Committee informed of further consultations and significant
developments."
4.6 The bulk of the Minister's letter relates
to the Committee's questions on the proposed use of delegated
acts and implementing powers:
"The Proposal contains four proposed delegated
acts in Articles 2(3), 3(3), 4(2) and 5(2) and one implementing
power, which is found in Article 8(3).
"a. Which use of delegated powers did the
Minister anticipate may place an unnecessary burden on economic
operators and which economic operators would be affected?~
"The delegated powers which I anticipate could
impose unnecessary burdens on economic operators are contained
within Article 4(2): 'Provision of information on the compliance
of combinations of software and radio equipment' and Article 5(2):
'Registration of radio equipment within some categories'. The
'economic operators' who I anticipate would be affected by the
requirements in these articles are manufacturers.
"I am concerned that the requirements in these
Articles may impose a disproportionate burden on economic operators.
This is because there is no clear indication in the text of the
proposal as to the type and amount of information manufacturers
could be required to produce, or the complexity of the notification
and registration processes which the Commission would require
a manufacturer to follow in order to comply with the Directive.
"b. Which proposed delegated acts give rise
to 'uncertainty' and how does this uncertainty make it difficult
for the Minister to arrive at a conclusion about the acceptability
of these acts?
"The Committee noted in their report that there
will remain a number of uncertainties around a proposal of this
nature at this stage of the proceedings. My particular concern,
which applies to all four of the delegated powers proposed, is
that it is not clear upon reading the text of the proposal what
the limits or extent of the powers conferred upon the Commission
will be and consequently, in practical terms, we do not know exactly
how the Commission will be able to use this power to amend the
Directive itself, after it comes into force. Therefore, it is
not possible to fully assess at this stage in the process how
any changes to the Directive in relation to delegated powers would
impact upon stakeholders.
"By way of example, Article 4(2) of the Proposal
provides:
" 'The Commission shall be empowered to adopt
delegated acts…specifying which categories or classes of
radio equipment are concerned by the requirement in paragraph
1, the required information and the operational rules for making
the information on compliance available.'
"The 'requirement' referred to in this section
is that Member States provide information to the Commission on
the compliance of intended combinations of radio equipment.
"This text seems exceptionally broad in nature.
It appears to allow the Commission to specify the categories of
radio equipment upon which compliance information must be provided,
to specify what information must be provided and to establish
a process by which this information must be supplied to the Commission.
At present, we do not know the criteria that the Commission would
use to specify the categories of radio equipment and so cannot
assess which equipment may be subject to these requirements and
whether this may have an impact on SMEs. We also cannot fully
assess the type or amount of information which the commission
may request and we cannot therefore, assess whether it is practically
or financially feasible to ask economic operators to provide this
information.
"These concerns, relating to the uncertainty
of the nature of the obligations which the text may impose upon
SMEs, also apply in respect of Article 5(2).
"In respect of Articles 2(3) and 3(3) my concern
at this preliminary stage is that the delegated acts proposed
may have the effect of empowering the Commission to, in effect,
alter the scope of the Directive by: amending the list of products
falling within the definition of 'Radio equipment' and to specifying
which categories of radio equipment will need to comply with the
essential requirements. Again, this means that it is not possible
at this stage to assess how the exercise of these powers may impact
upon SMEs.
"c. Provide details of how the Commission
may be attempting to use a delegated act to amend an essential
element of the Directive.
"Article 290 TFEU allows an EU legislator to
give powers to the European Commission to supplement or amend
legislative acts, such as a directive, where the extent of the
powers conferred are clearly defined.
"Article 290(1) TFEU sets out that the effect
of Article 290 is limited to allowing the Commission to adopt
'acts of general application to supplement or amend certain
non-essential elements of the legislative act…The essential
elements of an area shall be for the legislative act and accordingly
shall not be the subject of a delegation of power.'
"Therefore, Article 290 TFEU does not allow
an EU legislator to confer a power onto the European Commission
to amend an essential element of the proposed directive.
"Although there is no definition of an 'essential'
and a 'non-essential' element of a legislative act, an essential
element is one which is intended to give concrete shape to the
fundamental principles of a Union policy and therefore, the most
commonly cited example of an 'essential' element is one that is
material to the scope of the legislative act.
"The delegated acts set out in Article 2(3)
and 3(3) of the Proposal confer powers upon the Commission to
adopt delegated acts which would amend the categories of radio
equipment which would be subject to the requirements of the Directive
and the essential requirements with which such equipment would
have to comply. As it is currently unclear in what way and to
what extent the Commission could use this power to amend the categories
of radio equipment which are subject to the requirements of the
Directive, it is therefore also unclear, whether or not the exercise
of these powers could also affect the scope of the Proposal.
"I confirm that I will seek clarification from
the Commission as to the scope and extent of the powers that the
Proposal would delegate to the Commission as a matter of priority
and will keep the Committee informed of developments."
4.7 In response to the Committee's observations
on the electronic labelling of radio equipment, the Minister
says:
"This is a complex area with divergent opinions
amongst stakeholders. It appears that Business would in general
welcome its inclusion however an overwhelming majority of Member
State's Market Surveillance Authorities are currently opposed
to considering such a provision. The possible introduction of
an Electronic Labelling measure has previously been discussed
within the Technical and Conformity Assessment Committee (TCAM)
of the Commission and has not been well received by the Member
States present. The Commission has indicated that it may at some
stage in the future be willing to consider the inclusion of such
a provision but that it is not prepared to compromise on the requirement
for the CE marking to be placed on the hardware of the radio equipment.
There is little chance of a proposal being accepted by other Member
States or The Commission at this time but I will continue to test
the views of others as industry lobby, with a view to developing
a proposal which would stand some chance of being acceptable to
others, and I will keep the Committee informed of any developments."
Conclusion
4.8 We are grateful to the Minister for his
thorough response. However, it would seem that the position is
not significantly clearer than it was at the outset. For our
part, we find it disturbing that, even now, the fundamentals of
this proposal are not clear. All the other uncertainties, both
with regard to the impact on business and the Commission's powers,
arise from them. The Minister does not say if discussions are
under way in the relevant working party. Or if other Member States
share the UK's concerns. And he gives no indication of what his
objectives are, beyond saying that he will "seek clarification
from the Commission as to the scope and extent of the powers that
the Proposal would delegate to the Commission."
4.9 We therefore continue to look forward
to either a further Explanatory Memorandum covering his Department's
own impact assessment or, should it be available sooner, a further
update on discussions within the relevant working party, once
the basic uncertainties surrounding this proposal have been clarified.
4.10 We are beginning to see concern from
several Departments about the Commission's, or in the context
of first reading negotiations the European Parliament's, proposed
use of delegated acts. We think they are right to be concerned
— the changes to comitology procedures since the entry into
force of the Lisbon Treaty have the potential of imbuing the Commission
with considerable power to adopt secondary legislation. It is
therefore vital that the clear restraints on things of such power
in Articles 290 and 291 TFEU are respected. We look forward to
hearing from the Minister on this, once the proposal's objectives
are clarified.
4.11 In the meantime, we shall continue to
keep the proposal under scrutiny.
4.12 We are also again drawing this chapter
of our Report to the attention of the Business, Innovation and
Skills Committee.
8 See headnote: HC 86-xx (2012-13), chapter 3 (21
November 2012). Back
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