The United Kingdom’s interpretation of European EMC Directive 2004/108/EC and the policy and structure of the policing and enforcement of the UK EMC Regulations
This article initially describes the concept of European Directives and their legal status. It then discusses the European EMC Directive 2004/108/EC [EMCD] and how the United Kingdom interprets the EMCD’s requirements during its transposition into the UK EMC Regulations [EMCR]. Finally, it reports on the policy and structure of the policing and enforcement of the EMCR, and how this varies across the UK. The article will only concentrate on the main points of both the EMCD and the EMCR; and it is beyond its scope to describe all the possible exceptions and exclusions. A European Directive is a legislative act of the European Union, which requires Member States [MS] to achieve a particular result without dictating the means of achieving that result. Directives normally leave MS with a certain amount of leeway as to the exact national rules to be adopted. Thus individual MS can, and do, enact subtly different national rules. When adopted, Directives give MS a timetable for the implementation of the intended outcome. MS are required to make changes to their laws — commonly referred to as “transposition” — in order for the Directive to be implemented correctly. If a MS fails to pass the required national legislation the European Commission may initiate legal action against the MS in the European Court of Justice. Directives were originally conceived only to be legally binding on MS of the E.U. and not on Organisations, Companies or Individuals. The latter were bound by the national laws that were transposed from the Directives. However, the European Court of Justice has since developed the doctrine of “direct effect” where unimplemented or badly implemented Directives can actually have direct legal force. The court found that MS could be liable to pay damages to individuals and companies who had been adversely affected by the non-implementation of a Directive.The EMCD was adopted on 15 December 2004 and published in the Official Journal (OJ) of the European Union on 6 January 2005. It replaces and repeals Directive 89/336/EC, the previous EMCD. Considering that EMC is a complex high technology topic it is quite remarkable that the EMCD covers its legislation with this non technical document. The EMCD was originally adopted by the E.U. to harmonise its national laws for protection against electromagnetic disturbance in order to “guarantee the free movement of electrical and electronic products” without lowering existing justified levels of protection in the MS. It is important to note at the start, that unlike other “New Approach” Directives, this Directive does NOT deal with safety. In other words, compliance with the EMCD does not mean that a product is “safe” to use.The fundamental aims of the EMCD are enshrined in the “essential requirements”, and they are so important that they are stated verbatim here:1. Protection requirementsEquipment shall be so designed and manufactured, having regard to the state of the art, as to ensure that:a) the electromagnetic disturbance generated does not exceed the level above which radio and telecommunications equipment or other equipment cannot operate as intended; b) it has a level of immunity to the electromagnetic disturbance to be expected in its intended use which allows it to operate without unacceptable degradation of its intended use. 2. Specific requirements for fixed installationsInstallation and intended use of componentsA fixed installation shall be installed applying good engineering practices and respecting the information on the intended use of its components, with a view to meeting the protection requirements set out in Point 1. Those good engineering practices shall be documented and the documentation shall be held by the person(s) responsible at the disposal of the relevant national authorities for inspection purposes for as long as the fixed installation is in operation.
You will notice that there are specific requirements for fixed installations in addition to all other apparatus. This is so because, whereas apparatus may move freely within the Community – a prime motivator for the EMCD’s adoption; fixed installations on the other hand are installed for permanent use at a predefined location, but of course they could still exceed the required protection requirements.
Does the EMCD state how a manufacturer can show compliance? Yes, by simply saying that compliance must be shown by conducting an electromagnetic compatibility assessment of the product.
Whilst it doesn’t mandate how this assessment should be conducted, it does clearly promote using the relevant European harmonised standards by declaring that the correct application of these standards “shall be equivalent” to the carrying out of the assessment.
This “standards route” to compliance as it is known only works with standards that are adopted by the various European standardisation bodies, European Committee for Standardisation (CEN), European Committee for Electro-technical Standardisation (CENELEC) and European Telecommunications Standards Institute (ETSI). CEN, CENELEC and ETSI are recognised as the competent institutions in the field of the EMCD for the adoption of harmonised standards. Once the reference to such a standard has been published in the OJ, compliance with it should raise a “presumption of conformity” with the relevant essential requirements, although other means of demonstrating such conformity should be permitted.
Although conformity assessment should be the responsibility of the manufacturer, without any need to involve an independent conformity assessment body, manufacturers should be free to use the services of such a body if they so choose. The whole process of conformity assessment, followed if appropriate by CE Marking and a Declaration of Conformity etc., is a “self certification” exercise.
Article 3 instructs MS to take “all appropriate measures” to ensure that equipment is placed on the market and/or put into service only if it is compliant “when properly installed, maintained and used for its intended purpose”. This clearly extends the manufacturers responsibilities into the lifetime of the product whilst protecting them from any misuse.
Article 8, the ‘CE’ marking article states that compliant products must carry the CE mark as proof of compliance; whilst Annex IV describes the Technical Documentation and EC Declaration of Conformity that must be produced along with the CE mark.
Due to their specific characteristics, fixed installations need not be subject to the affixation of the ‘CE’ marking or to the Declaration of Conformity.
Finally Article 16 deals with the Transposition of the EMCD by instructing MS to “adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by 20 January 2007.”
As with the previous EMCD the EU has published and continually updates a “Guide for the EMC Directive 2004/108/EC” last updated 8th February 2010 (at time of writing). It is beyond the scope of this article to include this document in any detail; but it is worth noting very briefly that the document starts with a significant number of disclaimers and caveats. Chief amongst those are:
• These guidelines assist in the interpretation of the Directive but do not substitute for it; they explain and clarify some of the most important aspects related to its application. • These guidelines are publicly available, but they are not binding in the sense of legal acts adopted by the Community. The legally binding provisions are those transposing the EMC Directive at national level. • The Commission accepts no responsibility or liability whatsoever with regard to the information in this guide. • This information is not necessarily comprehensive, complete, accurate or up to date; • This information is not professional or legal advice.It is noteworthy that whilst the EMCD itself runs to 14 pages, the associated “guidance” document runs to 67 pages! The EMCD was transposed into UK law by the publication of STATUTORY INSTRUMENTS 2006 No. 3418 ELECTROMAGNETIC COMPATIBILITY, known as The Electromagnetic Compatibility Regulations 2006 [EMCR] There are, in fact, contained within this Statutory Instrument some 65 Regulations divided into 7 Parts. We will concentrate on the parts that add, enhance or are different to the requirements of the EMCD.
Part I sets out the implementation of the regulations.
These Regulations implement the current EMCD and they revoke and replace the 2005 regulations. Regulations 4 and 5 impose the same “essential requirements” concerning the EMC of equipment as the EMCD This Part does contain some important definitions including:
• “authorised representative” means a person established within the Community and appointed by the manufacturer (whether or not established in the Community) to act on his behalf; • “responsible person” means— (g) in relation to apparatus (i) the manufacturer established in the Community; (ii) the manufacturer’s authorised representative; or iii) where the manufacturer is not established in the Community and he has not appointed an authorised representative, the person who places the apparatus on the market or puts it into service; (h) in relation to a fixed installation, the person who, by virtue of their control of the fixed installation is able to determine that the configuration of the installation is such that when used it complies with the essential re-quirements N.B. The above definitions clearly mean that the UK authorities will hold somebody who is resident in the E.U. as being responsible for CE Marking and all relevant Documentation.
• “equipment” means any apparatus or fixed installationPart II covers the application of the Regulations and the exclusions. These are fundamentally the same as the EMCD.Part III sets out the general requirements relating to equipment.Regulations 15 and 16 state that equipment may not be placed on the market/ put into service unless the essential requirements are complied with under the same conditions as the EMCD. Regulations 18, 19 and 20 repeat the EMCD’s methodology for showing compliance, including the optional use of a notified body.Regulations 21, 22 and 23 cover CE marking and the issue and retention of an EC declaration of conformity by the “responsible person.”Part IV sets out the provisions relating to the appointment and functions of United Kingdom notified bodies. This part is outside of the scope of this article.Part V sets out the general requirements relating to the putting into service of fixed installations. It explains the exemptions for certain equipment and the required evidence of compliance. (Regulations 34, 35 + 36) These are all in direct accord with the EMCD. To better understand some of the complexities of the powers of both the courts and the enforcement authorities in the UK, it is necessary to have a basic understanding of the structure of the United Kingdom. The UK is a political and economic union of four previously independent countries, England, Scotland, Wales and Northern Ireland. Despite being in a very close and long standing union, each of these countries retains, amongst other things, it own legal system -thus complicating any UK Rules and Regulations; as you will see. Another complication is that the term “Great Britain” is commonly used instead of the word “UK”. However they are NOT the same at all, in that Northern Ireland is NOT part of Great Britain but obviously is part of the UK. Part VI sets out provisions relating to the enforcement of the Regulations.Regulation 37 appoints the enforcement authorities as follows: • (1)(a) in Great Britain: • (i) OFCOM [Office of Communications] in connection with the the protection of the radio spectrum; and (ii) local weights and measures authorities; • (1)(b) in Northern Ireland: • (i) OFCOM as above; and (ii) the Department of Enterprise, Trade and Investment. • (2) The Secretary of State may enforce these Regulations with the exception of electricity meters; which have their own authorities. So what is the remit and operating principles for the above authorities. It can easily be seen that the major portion of enforcement falls upon local weights and measures authorities; known as Trading Standards Officers [TSO]. TSO are “local government” employees reporting to local county and borough councils. Local government is largely independent from central government; therefore the UK Government has no direct authority over them. A very large part of a TSO workload is determined by the level of complaints received from the local community on a very broad range of trading standards. Few, if any TSO have received any particular training concerning these regulations, and no additional budget was allocated to local councils for this enforcement activity. The consequences are that enforcement is “complaint driven”, has a very low priority and varies between each and every local council.
The above authorities have the following powers: · Make test purchases · Enter any premises other than a person’s residence to inspect equipment or documentation.· Seize and detain any equipment, or incapacitate any fixed installation, where reasonable grounds exist of noncompliance.· Seize and detain any equipment and/or documentation that is required (i) as possible evidence (ii) by an authority from another MS (iii) which has reasonable grounds for suspecting that it may be liable to be forfeited· Require any person having authority to do so to open any container; and/or themselves open or break open any such container · A warrant may be issued by a Justice of the Peace [JP], if he is satisfied by any written information on oath, where it is suspected that an offence has been committed on any premises [including residential property] giving authority to enter the premises, if need be by force. Note 1 – In Scotland reference to the JP should read a Sheriff and “any written information on oath” should read “evidence on oath”. Note 2 – In Northern Ireland reference to “any written information on oath” should read “any complaint on oath”.· Issue Compliance notices. These notices consist of either (i) a suspension notice or (ii) notice of court proceedings. In the case of (ii) this can only be done if previous notice in writing has been served upon the responsible person and the non-conformity continues beyond a specified time. A suspension notice can be issued on the user or responsible person where an enforcement authority has reasonable grounds for suspecting non-compliance; this suspends the manufacture/use etc. of the equipment for not more than six months. · Require production of all relevant documents and information which includes an EC declaration of conformity, or technical documentation, or evidence of compliance, or such information as he may reasonably require from the (i) “responsible person” or (ii) any person who is in possession of such documentation. Any person shall be guilty of an offence if they· Place on the market or put into service any non-compliant equipment· Contravene a suspension notice· Make any statement which he knows is false or misleading· Falsely or wrongfully affixes the CE MarkIssues a false, improper or incomplete EC declaration of conformity· Intentionally obstructs, fails or refuses to comply with any requirement or fails or refuses to give any other assistance to any officer of an enforcement authority· Falsely pretend to be an officer of an enforcement authority· Fail to retain, or make available to the enforcement authority on request, any relevant documentation or evidence of compliance.Regulation 52 provides for a defence of “due diligence.”This is an unusual rule in that it provides for a defence against a prosecution!In proceedings against any person for an offence, it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence.We are advised by UK Government sources that the wording “all reasonable steps” was included to ensure that there was no discrimination against very small enterprises -e.g. it was thought to be an unreasonable burden that a very small enterprise should be expected to undertake the same intense EMC assessment as a very large multi-national company. The difficulty with this defence is there is no guidance available as to what is “reasonable”, except for any precedent set in previous court decisions!If a guilty verdict is declared in court, the court has the following powers:• Penalties – Depending upon the offence, the guilty party can be either or both: • (i) imprisoned for a term not exceeding three months; or (ii) fined not exceeding level 5 on the standard scale. In addition he/she can be made to remedy the non-compliance. • Forfeiture -In England, Wales and Northern Ireland a Magistrates Court has the authority to make an order for the forfeiture of any noncompliant equipment . • In Scotland an application for forfeiture is made by the procurator-fiscal to the court. If found proven the Sheriff then issues an order for forfeiture. All forfeit equipment is either: (i) most commonly destroyed, or maybe (ii) sent for repairing or reconditioning or (iii) scrapped. • Additional Costs -The court may order the guilty party, in addition to all fines and other financial losses, to reimburse an enforcement authority for any expenditure which has been incurred by that authority in investigating the offence, and, in having the apparatus tested. Part VII covers the Miscellaneous and Supple mental Regulations SUMMARYWhen the original EMCD was adopted by the EU, the UK already had some “interference” regulations in place which the UK Government of the day considered adequate. Thus the new requirements were seen as both “excessive” and “potentially damaging” to the UK electronics industry. To overcome this the Government decided that whilst they had no choice in passing new legislation, they would take a “light touch” approach to its enforcement. Thus the enforcement system described above, which continues to this day, has no central Government control, no mandatory surveillance activity and no support for testing etc.. Any occasional enforcement activity that does occur, is as a result of the relevant authority receiving a “complaint” of interference.
Graham Mays has spent most of his 48 year career in EMC and RF & Microwave Communications. After spending 12 years as a Communications Engineer in the Royal Air Force, he went on to work in a variety of senior positions for leading International Companies including Rohde & Schwarz, Chase EMC (now part of Teseq), and the Intertek Group. For more than 10 years, Graham has run his own successful sales and consultancy company; enjoying particular success as the European Distributor for the TILE EMC Software suite. He is currently enjoying developing a web based training and consultancy business at www.findatraining-course.co.uk.