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Electromagnetic Compatibility Act (Gesetz über die elektromagnetische Verträglichkeit von Geräten, EMVG)

In the version published on 18 September 1998

Translation provided by the Federal Regulatory Authority for Telecommunications and Posts and reproduced with kind permission.

This Act serves to implement

Council Directive 89/336/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to electromagnetic compatibility (Official Journal of the European Communities (OJ) No L 139 p 19), Council Directive 92/31/EEC of 28 April 1992 amending Directive 89/336/EEC on the approximation of the laws of the Member States relating to electromagnetic compatibility (OJ No L 126 p 11), Articles 5 and 14 of Council Directive 93/68/EEC of 22 July 1993 amending Directive 89/336/EEC on the approximation of the laws of the Member States relating to electromagnetic compatibility (OJ No L 220 pp 1, 7, 22), Article 9(4) of Council Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of the Member States concerning telecommunications terminal equipment, including the mutual recognition of their conformity (OJ No L 128 pp 1, 5) and Article 8(3) of Council Directive 93/97/EEC of 29 October 1993 supplementing Directive 91/263/EEC in respect of satellite earth station equipment (OJ No L 290 pp 1, 5).

Table of Contents

Section 1 General

§1 Scope
§ 2 Definitions

Section 2 Protection Requirements, Certificate of Conformity

§ 3 Protection Requirements
§ 4 Conformity Assessment, CE Conformity Marking, Information on the Intended Purpose and Use of Apparatus
§ 5 Radio Transmitting Equipment
§ 6 Exceptions and Special Determinations

Section 3 Functions and Responsibilities of the Regulatory Authority for Telecommunications and Posts

§ 7 Functions and Responsibilities, Functions Assignment and Power to Issue Ordinances
§ 8 Powers of the Regulatory Authority, Power to Issue Ordinances
§ 9 Requirements to Furnish Information and Lend Support
§ 10 Settlement of Costs
§ 11 Settlement of Contributions

Section 4 Adminstrative Fines Provisions

§ 12
§ 13 Penalty

Section 5 Transitional and Final Provisions

§ 14 Transitional Provisions
§ 15 Entry into Force, Repeal

Annex I

Annex II

1. EC Declaration of Conformity
2. CE Conformity Marking
3. Transitional Provisions on the CE Marking

Annex III

Section 1 General

§1 Scope

(1) This Act shall apply to apparatus which is liable to cause electromagnetic disturbance or the performance of which is liable to be affected by such disturbance.

(2) Where this Act provides for the tracing of electromagnetic disturbance and for measures to elimininate such disturbance, in respect of the radiation or emission of wanted frequencies also, it shall apply to all apparatus according to (1) above. Where this Act regulates the placing on the market, transfer, display, taking into service and use of apparatus according to (1) above, special legal provisions to this effect shall remain unaffected.

(3) This Act shall not apply to components and equipment designed as arms, munitions and defence material as specified in Article 296(1) letter b of the Treaty establishing the European Community (military equipment and systems).

§2 Definitions

For the purposes of this Act

  1. manufacturer means the natural or legal person or partnership with full legal capacity who or which is responsible for the design or production of apparatus covered by Council Directive 89/336/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to electromagnetic compatibility (Official Journal of the European Communities (OJ) No L 139 p 19), Council Directive 92/31/EEC of 28 April 1992 amending Directive 89/336/EEC on the approximation of the laws of the Member States relating to electromagnetic compatibility (OJ No L 126 p 11), Articles 5 and 14 of Council Directive 93/68/EEC of 22 July 1993 amending Directive 89/336/EEC on the approximation of the laws of the Member States relating to electromagnetic compatibility (OJ No L 220 pp 1, 7, 22), Article 9(4) of Council Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of the Member States concerning telecommunications terminal equipment, including the mutual recognition of their conformity (OJ No L 128 pp 1, 5) or Article 8(3) of Council Directive 93/97/EEC of 29 October 1993 supplementing Directive 91/263/EEC in respect of satellite earth station equipment (OJ No L 290 pp 1, 5) or who or which purports to be the manufacturer by applying their name, trade mark or other distinctive mark; whosoever produces new apparatus from finished products or modifies, remodels or adapts apparatus shall also be deemed a manufacturer;
  2. placing on the market means first making available, against payment or free of charge, an apparatus covered by Directive 89/336/EEC on the market of the Member States of the European Union and the other States Parties to the Agreement on the European Economic Area for the purpose of distribution or use in the territory of one of these states; the placing on the market refers to each apparatus individually to which this Act applies, irrespective of when and where it has been produced and whether it has been produced individually or in series; placing on the market shall not mean the display and demonstration of apparatus at exhibitions and trade fairs;
  3. apparatus means all electrical and electronic appliances, systems, installations and networks containing electrical or electronic components; meant in particular is apparatus listed in Annex I;
  4. appliance means a finished product having a direct function, its own enclosure and, if applicable, ports and connections intended for end users;
  5. system means a combination of several appliances or, if applicable, electrical or electronic components designed, produced or put together by the same manufacturer so as to operate together to perform a specific task after proper installation; a system is placed on the market as a single functional unit;
  6. installation means appliances, systems or electrical or electronic components which have been interconnected at a given place so as to operate together to perform a specific task; these parts are not required to be placed on the market as a single functional or commercial unit;
  7. network means a combination of several transmission links connected at individual points by electrical or optical means as part of an installation, system, appliance or component;
  8. electromagnetic disturbance means any electromagnetic phenomenon which may degrade apparatus performance; electromagnetic disturbance may be electromagnetic noise, an unwanted signal or a change in the propagation medium itself;
  9. electromagnetic compatibility means the ability of apparatus to function satisfactorily in its electromagnetic environment without introducing intolerable electromagnetic disturbance to other apparatus in that environment;
  10. competent body means the body recognising or issuing technical reports or certificates within the meaning of §4(2) on compliance with the protection requirements and recognised for this purpose by a Member State of the European Union or another State Party to the Agreement on the European Economic Area;
  11. EC type-examination certificate means the document by which a notified body within the meaning of subparagraph 12 below certifies for radio transmitting equipment that the type of apparatus tested conforms to the provisions on electromagnetic compatibility applicable to the relevant apparatus;
  12. notified body means the body issuing for radio transmitting equipment in accordance with the provisions of §5(1) of this Act EC type-examination certificates on compliance with the protection requirements, commissioned for this purpose by a Member State of the European Union or another State Party to the Agreement on the European Economic Area and notified by such Member State or other State to the European Commission as well as to the other Member States of the European Union and the other States Parties to the Agreement on the European Economic Area;
  13. transmitter operators mean those to whom frequencies have been assigned for the purpose of operating radio transmitting equipment or radio networks;
  14. radio transmitting equipment means apparatus emitting radio waves for the purpose of radiocommunication services or applications.

Section 2 Protection Requirements, Certificate of Conformity

§3 Protection Requirements

(1) Apparatus shall be so constructed that, given proper installation, adequate maintenance and intended use in accordance with the manufacturer’s instructions for use,

  1. the electromagnetic disturbance it generates does not exceed a level allowing radio and telecommunications equipment and other apparatus to be used as intended,
  2. the apparatus has an adequate level of intrinsic immunity to electromagnetic disturbance to enable it to be used as intended.
    The principal protection requirements are set out in Annex I.

(2) Compliance with the protection requirements shall be presumed for apparatus which is in conformity

  1. with the European harmonised standards, applicable to the relevant apparatus, the references of which have been published in the Official Journal of the European Communities; these standards shall be implemented into DIN VDE standards and their references published in the Official Gazette of the Regulatory Authority for Telecommunications and Posts; or
  2. with the national standards, applicable to the relevant apparatus, of the Member States of the European Union or other States Parties to the Agreement on the European Economic Area in areas where no European harmonised standards yet exist; this shall be subject to recognition of the standards concerned in accordance with the procedure provided for in Article 7 of Directive 89/336/EEC; the references of these standards shall be published in the Official Gazette of the Regulatory Authority for Telecommunications and Posts.

(3) In the case of apparatus for which the manufacturer has not applied, or has applied only in part, the standards referred to in (2) above, or failing such standards, the protection requirements shall be deemed satisfied if compliance is confirmed by one of the following documents:

  1. the technical report referred to in §4(2) sentence 1 subparagraph 3, or
  2. the certificate of a competent body also referred to in §4(2) sentence 1 subparagraph 3.

§4 Conformity Assessment, CE Conformity Marking, Information on the Intended Purpose and Use of Apparatus

(1) Apparatus for which the manufacturer has applied the standards referred to in §3(2) of this Act may only be placed on the market, transferred on a profit-oriented basis or taken into service if the manufacturer or their authorised representative established in a Member State of the European Union or another State Party to the Agreement on the European Economic Area

  1. has declared conformity of the apparatus with the provisions of this Act by an EC declaration of conformity as set out in Annex II,
  2. has affixed the CE marking as set out in Annex II to the apparatus or, if this is not possible, to the sales packaging, the instructions for use or the guarantee certificate,
  3. has indicated the issuer of the EC declaration of conformity in connection with the CE marking on the apparatus or, if this is not possible, on the sales packaging, the instructions for use or the guarantee certificate,
  4. has supplied the following information on the intended use of the apparatus with the enclosed instructions for use:

a) notes referring to the requirements of the intended use;
b) notes referring to restrictions where apparatus is not suitable for use in every electromagnetic environment;
c) instructions for installation as far as required for electromagnetic compatibility;
d) notes indicating to what extent and how frequently maintenance measures are required to maintain electromagnetic compatibility on a lasting basis; and

  1. has also indicated on the sales packaging the notes according to subparagraph 4 letter b.

Responsible for compliance with sentence 1 subparagraphs 1 to 5 above shall be the person placing the apparatus on the market in a Member State of the European Union or in another State Party to the Agreement on the European Economic Area. Where neither the manufacturer nor their authorised representative is established in a Member State of the European Union or another State Party to the Agreement on the European Economic Area, the importer shall indicate the name and seat of their firm instead of supplying the information according to sentence 1 subparagraph 3.

(2) Apparatus for which the manufacturer has not applied, or has applied only in part, the standards referred to in §3(2), or apparatus for which no standards exist, may only be placed on the market, transferred on a profit-oriented basis or taken into service if a technical construction file is provided including the following information:

  1. a description of the apparatus,
  2. a description of the measures ensuring conformity with the protection requirements, and
  3. a technical report or certificate certifying conformity with the protection requirements; the technical report may only be recognised or issued by a competent body, the certificate issued by such body only; the certificate should bear the following inscription “Certificate from a competent body within the meaning of §4(2) of the Electromagnetic Compatibility Act or Article 10(2) of Directive 89/336/EEC”.

The conformity of apparatus with the apparatus described in the technical construction file and with the provisions of this Act shall be declared by the manufacturer or their authorised representative established in a Member State of the European Union or another State Party to the Agreement on the European Economic Area by an EC declaration of conformity as set out in Annex II. Para (1) above sentence 1 subparagraphs 2 to 5 and sentences 2 and 3 shall be applicable.

(3) The EC declaration of conformity and the technical construction file according to (2) above shall be held at the disposal of the Regulatory Authority for a period of ten years following the placing of the apparatus on the market by the person placing it on the market.

(4) Apparatus, its sales packaging, instructions for use and guarantee certificate may only bear the CE marking if the requirements of (1) or (2) above are met. Markings which are likely to mislead third parties as to the verbal and pictorial significance of the CE marking may not be affixed. Any other marking may only be affixed if the visibility and legibility of the CE marking is not thereby reduced.

(5) Apparatus may only be used if

  1. it has been placed on the market in accordance with (1) or (2) above or with §5(1) of this Act, or
  2. it has been produced or placed on the market in accordance with §6(3) to (8) or (9) sentence 2

and the information on the intended use has been respected.

(6) Whosoever transfers apparatus to another person, shall also forward to that person the information on the intended use.

(7) Provisions with requirements other than those of electromagnetic compatibility pursuant to this Act for the placing on the market, displaying or use of apparatus shall remain unaffected.

§5 Radio Transmitting Equipment

(1) Radio transmitting equipment may only be placed on the market, transferred on a profit-oriented basis or taken into service if a notified body has issued the manufacturer or their authorised representative with an EC type-examination certificate. In the case of radio transmitting equipment for which the manufacturer has not applied, or has applied only in part, the standards referred to in §3(2) of this Act, or failing such standards, the procedure set forth in §4(2) sentence 1 subparagraphs 1 and 2 shall apply. The technical construction file shall include the EC type-examination certificate. Conformity of the radio transmitting equipment with the type presented to the notified body as well as with the provisions of this Act shall be certified by the manufacturer or their authorised representative established in a Member State of the European Union or another State Party to the Agreement on the European Economic Area by an EC declaration of conformity as set out in Annex II. §4(1) sentence 1 subparagraphs 2 to 5 and sentences 2 and 3 shall apply accordingly.

(2) The obligation according to (1) above to obtain the EC type-examination certificate shall not apply to radio transmitting equipment which

  1. is covered by Council Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of the Member States concerning telecommunications terminal equipment, including the mutual recognition of their conformity (OJ No L 128 p 1) or by Council Directive 93/97/EEC of 29 October 1993 supplementing Directive 91/263/EEC in respect of satellite earth station equipment (OJ No L 290 p 1), or
  2. emits radio waves with frequencies of more than 3,000 GHz, or
  3. is commercially available and produced and intended solely for radio amateurs within the meaning of §2 subparagraph 2 of the Amateur Radio Act of 23 June 1997 (Federal Law Gazette I p 1494).

§4(1) or (2) shall apply to such radio transmitting equipment.

(3) §4(3) of this Act shall apply accordingly to the keeping of the EC declaration of conformity, the EC type-examination certificate and the technical construction file according to (1) above.

§6 Exceptions and Special Determinations

(1) During the process of designing, testing and installing apparatus the manufacturer shall make provision for the prevention of electromagnetic disturbance caused to third parties. This shall also be done when the disturbance results from the radiation or emission of wanted frequencies.

(2) At exhibitions and trade fairs manufacturers, their authorised representatives or importers may, at their own risk, display and demonstrate apparatus which does not meet the protection requirements of §3(1) of this Act. Those responsible referred to in sentence 1 above shall indicate this fact next to their apparatus during the exhibition. If such apparatus causes electromagnetic disturbance and also where such disturbance results from the radiation or emission of wanted frequencies, those responsible as specified in sentence 1 shall take suitable measures for its elimination without further delay.

(3) Electrical or electronic components shall be treated as apparatus if they

  1. perform a direct function,
  2. are placed on the market as a single unit, and
  3. may be directly used by a person not qualified in the field of electromagnetic compatibility without further adaptions other than adjustments or connections which might be requested for the function of the component.

(4) Series-manufactured kits and component sets shall be treated as apparatus if they perform a direct function after assembly.

(5) Apparatus produced by the manufacturer himself and used solely on his premises shall meet the protection requirements according to §3(1) of this Act. §4(1), (2) and (6) and §5(1) shall not apply.

(6) Installations containing appliances, systems or components within the meaning of (3) above which are in conformity with the requirements according to §3(1) and §4(1) shall be deemed to satisfy the protection requirements if

  1. the information on the intended use of those parts, and
  2. the rules of good engineering practice

have been respected.

§4(1) sentence 1 subparagraphs 1 to 3 and 5 shall not apply to installations according to sentence 1.

(7) Installations also containing appliances, systems or components within the meaning of (3) above which have been produced solely for use in these installations and are not in accordance with the provisions of §4(1) or (2) shall, where neither the presumption according to §3(2) applies nor documents according to §3(3) have been provided, be deemed to satisfy the protection requirements if

  1. they have been provided by firms or persons with expertise in the field of electromagnetic compatibility,
  2. the information on the intended use of the components has been respected,
  3. the rules of good engineering practice have been respected, and
  4. the installations are electromagnetically compatible with other apparatus used in their environment.

The manufacturer shall provide the operator with a technical construction file on installations according to sentence 1 above when they are taken into service. Such file shall include:

  1. a description of the installation,
  2. details of the installation site, and
  3. information on the measures to ensure the protection requirements.

After the installation has been taken into service, the operator shall hold the technical construction file with the contents specified in sentence 3 at the disposal of the Regulatory Authority for the period of its use. §4(1) sentence 1 subparagraphs 1 to 3 and 5 shall not apply to installations according to sentence 1.

(8) Paras (6) and (7) shall apply to networks accordingly.

(9) Appliances, systems and components within the meaning of (3) above produced and intended solely as supplied parts or spare parts for processing by firms or persons with expertise in the field of electromagnetic compatibility shall not be required to satisfy the protection requirements and the requirements set out in §4(1) subparagraphs 1 to 3 and 5. Apparatus which is ready for use and contains appliances, systems or components according to sentence 1 shall satisfy the provisions of this Act.

(10) The provisions of §3(2) and (3) and §§4 and 5 shall not apply to self-produced radio equipment which is not commercially available, but used by radio amateurs within the meaning of §2 subparagraph 2 of the Amateur Radio Act. Where electromagnetic incompatibility occurs, the standards applicable according to §3(2) of this Act can be used for the assessment of elimination measures.

(11) Para (10) shall apply accordingly to apparatus not commercially available for which exceptions required in the public interest are allowed under §65(2) sentence 1 of the Telecommunications Act.

(12) Where apparatus without CE marking which may be taken into service or used under §14 of this Act is so modified, remodelled or adapted that electromagnetic compatibility is degraded, §14 shall no longer apply.

(13) Where apparatus placed on the market in accordance with the provisions of this Act is so modified, remodelled or adapted that electromagnetic compatibility is degraded, it shall be treated as new apparatus.

Section 3 Functions and Responsibilities of the Regulatory Authority for Telecommunications and Posts

§7 Functions and Responsibilities, Functions Assignment and Power to Issue Ordinances

(1) The Regulatory Authority shall execute this Act unless otherwise provided by law.

(2) The Regulatory Authority shall perform the following functions in particular:

  1. testing apparatus which is to be or has been placed on the market for compliance with the requirements according to §4, §5 and §6(3) to (8), (12) and (13) and with the protection requirements according to §3(1) in conjunction with Annex I and, in the case of non-compliance, initiating measures as set out in §8 of this Act;
  2. testing apparatus displayed and demonstrated at trade fairs and exhibitions for compliance with the requirements according to §6(2) sentences 2 and 3 and, in the case of non-compliance, initiating measures according to §8 of this Act;
  3. tracing electromagnetic incompatibility, in particular radio disturbance, and initiating corrective action in cooperation with the parties concerned;
  4. tracing electromagnetic incompatibility in connection with the radiation or emission of wanted frequencies and initiating corrective action in cooperation with the parties concerned;
  5. performing individual functions related to electromagnetic compatibility that derive from Directive 89/336/EEC and other EC Directives for the European Commission and the Member States of the European Union and the other States Parties to the Agreement on the European Economic Area.

(3) The Regulatory Authority may perform the functions of a competent body or a notified body without prejudice to activities of private parties according to (4) below.

(4) Upon application, the Regulatory Authority shall recognise as competent bodies natural and legal persons and partnerships with full legal capacity who or which have the necessary staff and satisfy the criteria set out in Annex III and the ordinance having the force of law according to (5) below to perform the functions provided for in this Act. Upon application, the function to operate as a notified body shall be assigned by the Regulatory Authority to natural and legal persons and partnerships with full legal capacity who or which have the necessary staff and satisfy the criteria set out in Annex III and the ordinance having the force of law according to (5) below to perform the functions provided for in this Act. The notified bodies shall exempt the Federal Republic of Germany from any claim made by third parties for damage caused by the exercise of the functions assigned.

(5) The Federal Ministry of Economics shall be empowered to regulate, by ordinance having the force of law but not requiring the consent of the German Bundesrat, details of the requirements and the procedure

  1. for recognition of competent bodies, and
  2. for functions assignment to notified bodies

in accordance with Directive 89/336/EEC and Annex III. The procedures for recognition and functions assignment shall determine the requirements for revocation and expiry.

§8 Powers of the Regulatory Authority, Power to Issue Ordinances

(1) The Regulatory Authority shall be authorised to test

  1. by sampling, apparatus which is to be or has been placed on the market for compliance with the requirements according to §4, §5 and §6(3) to (8), (12) and (13) and with the protection requirements according to §3(1) in conjunction with Annex I, and
  2. apparatus displayed and demonstrated at trade fairs and exhibitions for compliance with the requirements according to §6(2) sentences 2 and 3.

(2) Where the Regulatory Authority establishes that apparatus required to bear the CE marking according to this Act has not been provided with the CE marking, it shall take all the measures necessary to restrict, prohibit or revoke the placing on the market or transfer of the apparatus concerned or to restrict its free movement. These measures may be addressed to any person placing on the market or transferring the apparatus.

(3) Where the Regulatory Authority establishes in the case of (1) subparagraph 1 above that apparatus bearing the CE marking fails to respect the requirements and protection requirements set forth therein, it shall issue all the orders necessary to correct this failing and prevent further infringement. If the failing is not corrected, the Regulatory Authority shall take all the measures necessary to restrict, prohibit or revoke the placing on the market or transfer of the apparatus concerned or to restrict its free movement. The orders and measures set out in sentences 1 and 2 above may be addressed to the manufacturer, their authorised representative established in a Member State of the European Union or in another State Party to the Agreement on the European Economic Area, or the importer; the measures set out in sentence 2 may also be addressed to any person transferring apparatus.

(4) Where the Regulatory Authority establishes in the case of (1) subparagraph 2 that apparatus fails to respect the requirements set forth therein, it shall issue all the orders necessary to correct this failing. If the failing is not corrected, the Regulatory Authority shall make provision for the apparatus to be taken out of service.

(5) Where the Regulatory Authority establishes that there is marking on apparatus, its sales packaging, instructions for use or guarantee certificate which is likely to mislead third parties as to the verbal and pictorial significance of the CE marking, it shall take all the measures necessary to restrict, prohibit or revoke the placing on the market or transfer of the apparatus concerned or to restrict its free movement. These measures may be addressed to any person placing on the market or transferring apparatus.

(6) The Regulatory Authority shall be authorised

  1. where electromagnetic incompatibility occurs, to implement all the measures necessary to establish why it occurred and to initiate corrective action in cooperation with the parties concerned;
  2. to order special measures for the use of apparatus or to take all the measures necessary to prevent the use of such apparatus in order to

a) remove existing or foreseeable electromagnetic incompatibility at a particular location,
b) protect public telecommunications networks or radio transmitting or receiving equipment used for safety purposes.

The powers according to sentence 1 shall also cover cases of electromagnetic incompatibility resulting from the radiation or emission of wanted frequencies.

(7) Where electromagnetic disturbance

  1. might constitute a hazard to the safety of life of third parties or to another person’s property of significant value,
  2. degrades the use of a public telecommunications network, or
  3. degrades radio transmitting or receiving equipment used for safety purposes

and where it is not possible to establish by any other means why the disturbance occurred, the Regulatory Authority’s staff shall be authorised to intercept the content of emissions, also as far as they serve telecommunications purposes, and to obtain information on the detailed circumstances of the specific telecommunications activity. The information obtained by the measures set out in sentence 1 may only be used to stop the electromagnetic disturbance. In derogation of sentence 2 information may be transmitted to the competent authorities where this is required to prosecute a criminal offence as set out in §100a of the Code of Criminal Procedure. The basic right of privacy of telecommunications according to Article 10 of the Basic Law shall be restricted as provided for by sentences 1 and 3.

(8) Subject to the requirements set out in (7) sentence 1 above the Regulatory Authority’s staff shall be authorised to access premises, rooms and apartments where there is reason to suspect the source of disturbance. Searches may only be ordered in writing by the judge or, in case of imminent danger, by the Regulatory Authority staff responsible. Measures according to sentences 1 and 2 will only be taken after the persons concerned have been heard, unless the measure would thereby be unduly delayed. The basic right of privacy of the home according to Article 13 of the Basic Law shall be restricted as provided for by sentences 1 and 2.

(9) The Federal Ministry of Economics shall be empowered to regulate, by ordinance having the force of law but not requiring the consent of the German Bundesrat, the procedure and details for implementation of the measures to trace and eliminate electromagnetic incompatibility as set forth in (6) to (8) above.

§9 Requirement to Furnish Information and Lend Support

(1) All persons placing on the market, offering, displaying or using apparatus and the competent bodies shall be required to furnish the Regulatory Authority at its request with all the information it requires to perform its functions and to lend it any other kind of support. Parties subject to the requirement under sentence 1 may refuse to give information to questions if the answers would expose themselves or one of their dependants as designated in §52(1) of the Code of Criminal Procedure to the risk of prosecution on account of a criminal offence or proceedings under the Administrative Offences Act.

(2) The authorised representatives of the Regulatory Authority may have access, during normal business or working hours, to plant-site land, production sites, business premises and vehicles on or in which apparatus is produced, offered or stored for the purpose of being placed on the market, displayed or used in order to inspect and test apparatus, have apparatus used for testing and temporarily removed for testing and monitoring purposes. The parties subject to the requirement under (1) above shall acquiesce in these measures.

§10 Settlement of Costs

(1) Costs (charges and expenses) shall accrue for the following official acts undertaken by the Regulatory Authority:

  1. measures for testing apparatus as provided for by §8(1) to (5) in relation to the person who has placed the apparatus on the market if there is a violation of the requirements set out in §§3 to 6,
  2. special measures against the operators for identifying and measuring apparatus that has been culpably used in violation of the provisions set out in §4(5),
  3. decisions on the recognition of competent bodies and on functions assignment to notified bodies according to §7(4); costs shall also accrue if an application for an official act has been withdrawn after the start of technical processing, but before completion of the official act; §15 of the Administrative Expenses Act shall remain unaffected,
  4. issue of an EC type-examination certificate.

(2) Where the EC type-examination certificate is granted by a body which has been assigned notified body functions, costs shall be charged by such body for the grant.

(3) The Federal Ministry of Economics shall be empowered to determine, in agreement with the Federal Ministry of Finance, by ordinance having the force of law but not requiring the consent of the German Bundesrat, the chargeable acts in detail, the amount of the charges and the reimbursement of expenses as provided for by the Administrative Expenses Act.

§11 Settlement of Contributions

(1) Transmitter operators shall pay a levy, raised as an annual contribution, to cover the costs incurred for

  1. ensuring electromagnetic compatibility and, in particular, interference-free radio reception to perform the functions set out in §8(6), where the requirement of §10(1) subparagraph 2 does not already exist,
  2. measures for testing apparatus in conformity with §8(1) to (5), where the requirement of §10(1) subparagraph 1 does not already exist.

Exempt from the obligation to pay such contributions shall be the authorities and organisations concerned with public safety and those transmitter operators for whom the administrative expense of collecting the contribution would exceed the contribution itself.

(2) The Federal Ministry of Economics shall be empowered to lay down, in agreement with the Federal Ministry of Finance, by ordinance having the force of law but not requiring the consent of the German Bundesrat, the group of contributories, the contribution rates and the procedure for collecting contributions. The rates shall be calculated so as to cover the expenditure on staff and the operating expenses incurred for the official acts. The shares in the total costs shall be allocated to the individual user groups amongst the transmitter operators. The contribution shall then be divided within the groups according to frequency usage, degree of involvement in the disturbance generated, and user potential.

Section 4 Adminstrative Fines Provisions

§12

(1) An administrative offence shall be deemed to have been committed by anyone who, intentionally or negligently,

  1. places on the market, transfers on a profit-oriented basis or takes apparatus into service contrary to §4(1) sentence 1 or (2) sentence 1,
  2. fails to keep the EC declaration of conformity, the EC type-examination certificate or the technical construction file or fails to keep them for at least ten years contrary to §4(3), also in conjunction with §5(3),
  3. provides apparatus, its sales packaging, the instructions for use or the guarantee certificate with the CE marking or marking contrary to §4(4),
  4. uses apparatus contrary to §4(5),
  5. where apparatus is transferred on a profit-oriented basis, fails to furnish information or fails to furnish it correctly, completely or in time contrary to §4(6),
  6. places on the market, transfers on a profit-oriented basis or takes radio transmitting equipment into service contrary to §5(1),
  7. fails to provide apparatus with the indication referred to in §6(2) sentence 2 or fails to provide it in time contrary to §6(2) sentence 2, or
  8. fails to forward the technical construction file or fails to forward it correctly, completely or in time, or fails to keep the technical construction file or fails to keep it for the prescribed time contrary to §6(7) sentence 2 or 4.

(2) An administrative offence may be punishable by a fine not exceeding 100,000 Deutschmarks in the cases of (1), subparagraphs 1, 3, 4, and 6, or by a fine not exceeding ten thousand Deutschmarks in the other cases.

(3) Apparatus to which an administrative offence under (1) subparagraphs 1, 3, 4 or 6 relates may be confiscated.

(4) Administrative authority within the meaning of §36(1) subparagraph 1 of the Administrative Offences Act shall be the Regulatory Authority.

§13 Penalty

In order to enforce the orders of §8(2) to (6) and (8) as well as §9 a penalty not exceeding one million Deutschmarks may be fixed as provided for by the Administration Enforcement Law.

Section 5 Transitional and Final Provisions

§14 Transitional Provisions

Apparatus whose use was permitted prior to 1 January 1996 may be taken into service, transferred or continue to be operated for an unlimited period. Apparatus whose use was permitted only at a specific location prior to the entry into force of this Act, may continue to be operated for as long as its location remains unchanged. Where such apparatus causes electromagnetic disturbance or where its use is adversely affected by electromagnetic disturbance, §8(6) to (8) shall apply. §4(7) shall apply accordingly.

§15 Entry into Force, Repeal

§4(1) subparagraph 5 shall enter into force on 1 January 1999. The remaining provisions of this Act shall enter into force on the day following promulgation. With the entry into force of this Act the Electromagnetic Compatibility Act of 30 August 1995 (Federal Law Gazette I p 1118) shall cease to have effect.

Annex I Illustrative List of the Principal Protection Requirements

The maximum electromagnetic disturbance generated by the apparatus shall be such as not to hinder the use of in particular the following apparatus:

  1. domestic radio and TV receivers,
  2. industrial manufacturing equipment,
  3. mobile radio equipment,
  4. mobile radio and commercial radiotelephone equipment,
  5. medical and scientific apparatus,
  6. information technology equipment,
  7. domestic appliances and household electronic equipment,
  8. aeronautical and marine radio apparatus,
  9. educational electronic equipment,
  10. telecommunications networks and apparatus,
  11. radio and television broadcast transmitters,
  12. lights and fluorescent lamps.

Apparatus, and especially the apparatus referrred to in (a) to (l), should be constructed in such a way that it has an adequate level of electromagnetic immunity in the usual electromagnetic compatibility environment where the apparatus is intended to work so as to allow its unhindered operation taking into account the levels of disturbance generated by apparatus respecting the standards laid down in §3(2) of this Act.

The information required to enable use in accordance with the intended purpose of the apparatus must be contained in the instructions accompanying the apparatus.

Annex II

1. EC Declaration of Conformity

The EC declaration of conformity must contain the following:

  • description of the apparatus to which it refers;
  • reference to the specifications under which conformity is declared, and, where appropriate, to the intra-company measures implemented to ensure the conformity of the apparatus with the provisions of the EMC Directive;
  • identification of the signatory empowered to bind the manufacturer or authorised representative;
  • where appropriate, reference to the EC type-examination certificate issued by a notified body.

2. CE Conformity Marking

The CE conformity marking shall consist of the initials “CE” taking the following form:

  • If the CE marking is reduced or enlarged the proportions given in the above graduated drawing must be respected.
  • Where apparatus is the subject of other Directives covering other aspects and which also provide for the CE conformity marking, the latter shall indicate that the appliances are also presumed to conform to those other Directives.
  • However, where one or more of these Directives allow the manufacturer, during a transitional period, to choose which arrangements to apply, the CE marking shall indicate conformity only to the Directives applied by the manufacturer. In this case, particulars of the Directives applied, as published in the Official Journal of the European Communities, must be given in the documents, notices or instructions required by the Directives and accompanying such apparatus.
  • The various components of the CE marking must have substantially the same vertical dimension, which may not be less than 5 mm.

3. Transitional Provisions on the CE Marking

  • The CE conformity mark shall consist of the letters CE as set out below and the figures of the year in which the mark was affixed.

  • This mark should, where appropriate, be accompanied by the distinctive letters used by the notified body issuing the EC type-examination certificate.
  • Where apparatus is the subject of other Directives providing for the CE conformity mark, the affixing of the CE mark shall also indicate conformity with the relevant requirements of those other Directives.

Annex III Criteria for the Assessment of the Competent Bodies and the Bodies to be Notified

The bodies designated by the Member States of the European Union or the other States Parties to the Agreement on the European Economic Area must fulfil the following minimum conditions:

  1. availability of personnel and of the necessary means and equipment;
  2. technical competence and professional integrity of personnel;
  3. independence, in carrying out the tests, preparing the reports, issuing the certificates and performing the verification function provided for in the EMC Directive, of staff and technical personnel in relation to all circles, groups or persons directly or indirectly concerned with the product in question;
  4. maintenance of professional secrecy by personnel;
  5. possession of civil liability insurance unless such liability is covered by the State under national law.

Fulfilment of the conditions under points 1 and 2 shall be verified at intervals by the competent authorities of the Member States.

 

 

The above translation was published by the Federal Regulatory Authority for Telecommunications and Posts. Reproduced with kind permission. This HTML edition by Lawrence Schäfer and © 2001 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.

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