S.I. No. 179/1998:

EUROPEAN COMMUNITIES (SATELLITE EARTH STATION EQUIPMENT) REGULATIONS, 1998.

EUROPEAN COMMUNITIES (SATELLITE EARTH STATION EQUIPMENT) REGULATIONS, 1998.

I, MARY O'ROURKE, Minister for Public Enterprise, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Directive 98/13/EC of the European Parliament and of the Council of 12 February 1998 1, hereby make the following Regulations.

1. These Regulations may be cited as the European Communities (Satellite Earth Station Equipment) Regulations, 1998.

2. (1) In these Regulations--

"authorised officer" means an officer appointed under Regulation 9;

"CE Marking" means a mark consisting of the initials "CE" in the form specified in Annex VI to the Directive;

"common technical regulation" means a measure adopted by the Commission in accordance with Article 18.2 of the Directive, a reference to which has been published in the Official Journal of the European Communities;

"the Commission" means the Commission of the European Communities;

"the Community" means the European Community;

"the Directive" means Directive 98/13/EC of the European Parliament and of the Council of 12 February 1998¹;

¹ O.J. No. L74, 12-3-1998. p.1.

"the Director" means the Director of Telecommunications Regulation;

"harmonised standard" means a technical specification adopted by, as appropriate, the European Committee for Standardisation (CEN), 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 Council Directive No. 83/189/EEC of 28 March 1983²;

² O.J. No. L109. 26-4-1983.p.8.

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

"notified body" means a body which has been designated by the Director under Regulation 6 or by another Member State and duly notified to the Commission pursuant to the requirements of Article 11.1 of the Directive;

"place on the market" means import, sell, offer for sale, expose for sale or supply within the State;

"satellite earth station equipment" means equipment to which a common technical regulation applies and which is capable of being used either for transmission only ("transmit-only") or for transmission and reception ("transmit-receive") or for reception only ("receive-only") of radio-communication signals by means of satellites or other space-based systems, but excluding purpose-built satellite earth station equipment intended for use as part of the public telecommunications network of a Member State;

"third country" means a state which is not a member of the European Community.

(2) 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.

(3) In these Regulations, unless otherwise indicated--

(a) a reference to a Regulation is to a Regulation of these Regulations,

(b) a reference to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs.

3. (1) A person shall not place on the market satellite earth station equipment unless each item of equipment is--

(a) affixed with the CE marking and the identification number of the notified body responsible for carrying out the relevant conformity assessment tasks on such equipment,

(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, and

(c) is in compliance with the requirements of these Regulations when it is properly installed and maintained and used for its intended purpose.

(2) In relation to satellite earth station equipment which is intended for terrestrial connection to the public telecommunications network, a person shall not place on the market such equipment unless it is, in addition to the requirements specified in paragraph (1), affixed with a symbol indicating that the equipment is intended and is suitable to be connected through a terrestrial connection to the public telecommunications network, as specified in Annex VI to the Directive.

(3) In relation to satellite earth station equipment which is not intended for connection to the public telecommunications network, a person shall not place on the market such equipment unless, in addition to the requirements specified in paragraph (1), each item of equipment is--

(a) affixed with the symbol specified in Annex VII to the Directive in such a way that the symbol follows the initials "CE", as shown in Annex VI to the Directive, and visually forms an integral part of the total marking,

(b) accompanied by a manufacturer's or supplier's declaration as set out in Annex VIII to the Directive, and

(c) accompanied by an operating manual.

(4) Notwithstanding paragraphs (1)(a) and (3), where the equipment is receive--only equipment, is not intended for terrestrial connection to the public telecommunications network and has been subject to the procedure set out in Annex IX to the Directive, a person shall not place on the market such equipment unless each item of equipment is affixed with the CE Marking. Subparagraph (b) of paragraph (3) shall not apply to each item of such equipment.

(5) Where satellite earth station equipment is not intended for connection to the public telecommunications network and 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 declaration referred to at subparagraph (b) of paragraph (3) to a notified body in the State.

(6) The manufacturer or supplier of satellite earth station equipment which is not intended for connection to the public telecommunications network and which is placed on the market in the State shall justify, once, at the request of a notified body, the intended purpose of the equipment on the basis of its relevant technical characteristics, its functions and the market segment for which that equipment is intended.

(7) A person shall not connect or use in conjunction with or cause to be connected to the public telecommunications network any satellite earth station equipment which is not intended for terrestrial connection to the public telecommunications network.

(8) In the event that satellite earth station equipment which is not intended for terrestrial connection to the public telecommunications network is so connected, the Director may, by notice given in writing, as the Director may decide, to either the public telecommunications network operator or the person who, in the opinion of the Director, bears responsibility for such connection, require that any such equipment shall be disconnected from, or cease to be used in conjunction with, the public telecommunications network.

(9) The Director may, where he or she considers it appropriate to do so, withdraw, or amend by a further notice in writing, a notice given under this Regulation.

(10) A notice given under paragraph (8) or amended under paragraph (9) shall be complied with by the person to whom it is addressed.

(11) A person who contravenes this Regulation or, subject to Regulation 14, fails to comply with a notice given under paragraph (8) or amended under paragraph (9) shall be guilty of an offence.

4. (1) (a) A person shall not affix a mark to satellite earth station equipment which, in the opinion of the Director, is likely to deceive any person as to the meaning and form of the CE Marking.

(b) A mark other than the CE Marking may be affixed to satellite earth station equipment if the CE Marking, the identifying number of the notified body referred to in paragraph (1)(a) of Regulation 3, or the symbol specified in Annex VI to the Directive are not thereby reduced.

(2) Where the Director is of the opinion that a mark referred to in paragraph (1) is likely to deceive any person as to the meaning and form of the CE Marking, he or she may, by notice in writing require the person not to affix the mark to any satellite earth station equipment or to remove such mark from such equipment.

(3) The Director may, where he or she considers it appropriate to do so, withdraw, or amend by a further notice in writing, a notice given under this Regulation.

(4) A notice given under paragraph (2) or amended under paragraph (3) shall be complied with by the person to whom it is addressed.

(5) Subject to Regulation 14, a person who fails to comply with a notice given under paragraph (2) or amended under paragraph (3) shall be guilty of an offence.

5. (1) A person shall not affix the CE Marking to--

(a) transmit--only or transmit--receive satellite earth station equipment unless the equipment has been subjected to either the EC type examination as described in Annex I to the Directive or the EC declaration of conformity as described in Annex IV to the Directive,

(b) receive--only satellite earth station equipment which is intended for terrestrial connection to the public telecommunications network, unless, as far as its terrestrial interface is concerned, the equipment has been subjected to either the EC type examination as described in Annex I to the Directive or the EC declaration of conformity as described in Annex IV to the Directive and unless, as far as other elements are concerned, the equipment has been subjected to either the EC type examination as described in Annex I to the Directive, the EC declaration of conformity as described in Annex IV to the Directive or the Community internal production control procedure set out in Annex IX to the Directive, or

(c) receive--only satellite earth station equipment which is not intended for terrestrial connection to the public telecommunications network unless the equipment has been subjected to either the EC type examination as described in Annex I to the Directive, the EC declaration of conformity as described in Annex IV to the Directive or the Community internal production control procedure set out in Annex IX to the Directive.

(2) The manufacturer of satellite earth station equipment or his or her authorised representative established within the Community or, in the case that neither the manufacturer nor his or her representative is established within the Community, the person who places the equipment on the market, may choose which of the conformity assessment procedures in respect of the relevant equipment, referred to in paragraph (1), to apply.

(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 Annex III to the Directive.

(4) It shall be the duty of the manufacturer or his or her authorised representative to ensure that records and correspondence relating to the conformity assessment procedures referred to in paragraph (1) 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 or her authorised representative shall maintain the records, correspondence, certficates, decisions and reports from notified bodies, as appropriate, for a period of at least 10 years after the last unit of the relevant type of satellite earth station equipment is manufactured.

(b) Where neither the manufacturer nor his or her 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.

(6) Where the Director is of the opinion that a person is not complying with this Regulation in respect of the keeping of records or correspondence, he of she may, by notice in writing require such compliance within the terms of the notice.

(7) The Director may, where he or she considers it appropriate to do so, withdraw, or amend by a further notice in writing, a notice given under this Regulation.

(8) A notice given under paragraph (6) or amended under paragraph (7) shall be complied with by the person to whom it is addressed.

(9) Subject to Regulation 14, a person who fails to comply with a notice given under paragraph (6) or amended under paragraph (7) shall be guilty of an offence.

(10) A person who contravenes paragraph (1) or (3) shall be guilty of an offence.

6. (1) The Director may designate a person established in the Community to carry out the certification, product checks and associated surveillance tasks relating to the procedures referred to in Regulation 5 and for the purposes of such designation shall apply the minimum criteria laid down in Annex V to the Directive. 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 Director may designate a test laboratory established in the Community for carrying out tests pertaining to the procedures referred to in Regulation 5 and, for the purpose of such designation, may be advised by a person designated under paragraph (1) and such person shall, for the purpose of so advising the Director, apply the criteria fixed by the appropriate parts of the harmonised standards.

(3) The Director may revoke a designation made by him or her under this Regulation if the person or test laboratory no longer meets the relevant criteria for designation.

(4) In order to facilitate the determination of conformity of satellite earth station equipment with technical regulations and standards, a person designated by the Director under paragraph (1) shall recognise documentation issued by relevant bodies in third countries, when agreements between the Community and the third countries concerned have been concluded on the basis of a mutually satisfactory understanding.

(5) A person designated by the Director under paragraph (1), 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, where relevant, at the same time, an administrative approval for the connection of the satellite earth station equipment concerned to the public telecommunications network.

7. (1) Where the Director is of the opinion that satellite earth station 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 Director, by a notice given to any person who has placed, or might place such satellite earth station 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) Where the Director is of the opinion that the CE Marking has been affixed to satellite earth station equipment which does not conform to an approved type or conforms to an approved type which does not meet the essential requirements applicable to it or where the manufacturer has failed to fulfil his obligations under the relevant Community declaration of conformity, the Director, by notice given to any person who has placed, or might place such satellite earth station equipment on the market, may require specified actions to be taken, including the withdrawal of such products from the market if they have already been placed on the market, or may prohibit or restrict their being placed on the market, pending compliance with the action specified in the notice.

(3) The Director may, where he or she considers it appropriate to do so, withdraw, or amend by a further notice in writing, a notice given under this Regulation.

(4) A notice issued under paragraph (1) or (2) or amended under paragraph (3) shall be complied with by the person to whom it is addressed.

(5) Subject to Regulation 14, a person who fails to comply with a notice given under paragraph (1) or (2) or amended under paragraph (3) shall be guilty of an offence.

8. (1) If the Director is of opinion that--

(a) satellite earth station equipment does not comply with the requirements of these Regulations, or

(b) satellite earth station equipment is being used or may be used by a person in such circumstances as are likely to cause death or serious injury or damage to property,

he or she may apply to the High Court for an order requiring that person to take such steps as will ensure that such use of the equipment is discontinued or, as may be appropriate, does not occur and the High Court may, on the hearing of the application, if it thinks fit to do so, grant relief of that nature.

(2) An application for an order under this Regulation shall be by motion, and the High Court when considering the matter may make such interim or interlocutory order as it considers appropriate.

(3) An application for an order under this Regulation may be made notwithstanding that--

(a) the time specified in paragraph (2) of Regulation 14 within which an appeal under that Regulation against any notice that has been given under Regulation 3, 4, 5 or 7 in relation to the matter concerned may be made has not expired, or

(b) an appeal under Regulation 14 against such a notice is pending.

9. (1) The Director may appoint such and so many of his or her officers or other persons whom he or she considers to be suitably qualified to be authorised officers for the purpose of these Regulations and the Directive.

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

(3) An authorised officer may, for the purposes of enabling the Director to exercise his or her functions under these Regulations and to ensure compliance with these Regulations and the Directive--

(a) enter at all reasonable times any premises, place, vehicle, vessel or aircraft at or in which he or she has reasonable grounds for suspecting that there is present satellite earth station equipment,

(b) at such premises, place, vehicle, vessel or aircraft, inspect and take copies of, or extracts from, any books, records (in whatever form kept) or other documents relating to such equipment which he or she finds in the course of his or her inspection,

(c) require any person in or at the premises, place, vehicle, vessel or aircraft, the owner or person in charge thereof or any person employed in connection with any activity carried on therein or thereat to give him or her such information and to produce to him or her such books, records or other documents which are within that person's power of procurement as he or she or the Director or a notified body may reasonably require for the purposes of his or her or its functions under these Regulations or the Directive,

(d) in or at the premises, place, vehicle, vessel or aircraft, seize any satellite earth station equipment or part thereof or any books, records or other documents that he or she or the Director or a notified body may reasonably require for the purposes of his or her or its functions under these Regulations or the Directive,

(e) carry out or have carried out therein or thereat such examinations, tests, inspections and checks of any satellite earth station equipment or equipment relating thereto found there, as he or she considers reasonable, and

(f) secure for later inspection the premises, place, vessel, vehicle or aircraft or any records, books, documents or satellite earth station equipment or equipment relating thereto found there.

(4) Regulation 12 of these Regulations shall apply to anything seized under paragraph (3).

(5) A authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from the District Court under Regulation 10.

(6) An authorised officer, where he or she considers it necessary, may require a member of the Garda Síochána to assist him or her when performing any power conferred on an authorised officer by this Regulation and which involves the breaking open of any premises, vehicle, vessel or aircraft or any other action in which the use of force may be necessary.

10. (1) If a judge of the District Court is satisfied, by information on oath of an authorised officer, that there are reasonable grounds for believing that there is present at or in any specified premises, place, vehicle, vessel or aircraft, satellite earth station equipment which the officer requires to inspect for the purposes of these Regulations or which does not comply with these Regulations or evidence otherwise of or related to a suspected offence under these Regulations that judge may issue to the authorised officer a warrant under this Regulation.

(2) A warrant issued under this Regulation shall be expressed and shall operate to authorise the authorised officer to whom it is issued, accompanied, if the judge concerned deems it appropriate so to provide, by such number of members of the Garda Síochána or authorised officers as may be specified in the warrant, 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 premises, place, vehicle, vessel or aircraft named in the said information and there to search for and examine any satellite earth station equipment as aforesaid and to seize anything which he or she believes to be evidence of, or evidence related to, a suspected offence under these Regulations and to exercise all or any of the powers conferred on an authorised officer under Regulation 9.

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

11. (1) A person who --

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

(b) refuses to produce any book, record or other document or to answer any question which an authorised officer lawfully requires him or her to produce or to answer,

(c) produces or causes to be produced any book, record or other document to an authorised officer which is false or misleading in any material respect knowing it to be so false or misleading,

(d) gives to an authorised officer any information which is false or misleading in any material respect knowing it to be so false or misleading, or

(e) makes or utters a false EC declaration of conformity, EC type examination certificate, technical report or declaration,

shall be guilty of an offence.

12. (1) Anything seized by an authorised officer under Regulation 9 or 10 may, without prejudice to paragraph (2), be given by him or her to the Director, a notified body or any other person designated by the Director for examination by him or her or it. If a thing aforesaid is given to the Director, a notified body or such other person for examination, it shall, as soon as may be after the examination is completed, be returned, as the Director or notified body considers appropriate, to the said authorised officer or to any other such officer to whom duties are, for the time being, assigned in relation to the matter concerned.

(2) Anything referred to in paragraph (1) which an authorised officer believes to be evidence of, or evidence related to, an offence under these Regulations (whether as a result of an examination referred to in that paragraph or not) may, without prejudice to the right of the Director, a notified body or other person to retain the thing for the purposes of an examination as aforesaid, be detained --

(a) for such period from the date of seizure of the thing as is reasonable, or

(b) if proceedings are commenced under these Regulations in which the thing is to be used in evidence, until the conclusion of those proceedings,

and shall then, as soon as may be after the expiration of that period or, as the case may be, the conclusion of those proceedings be delivered to the person who, in the opinion of the authorised officer to whom duties are, for the time being assigned in relation to the matter, is the owner of the thing.

(3) Anything seized by an authorised officer under Regulation 9 or 10 which that officer or any other such officer to whom duties are, for the time being, assigned in relation to the matter, becomes of the opinion is not evidence of, or evidence related to, an offence under these Regulations shall, as soon as may be after that officer becomes of that opinion, be delivered to the person who, in his or her opinion, is the owner of the thing.

(4) If the authorised officer concerned referred to in paragraph (2) or (3) becomes of the opinion that he or she is unable to ascertain the identity of the owner of the thing referred to in the said paragraph (2) or (3), as the case may be, and records that opinion in writing then, on and from that opinion being so recorded, the Police (Property) Act, 1897, shall apply to the thing in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.

13. (1) Subject to paragraphs (2) and (3), a notice under these Regulations shall be addressed to the person concerned by name and may be given to the person in one of the following ways--

(a) by delivering it to the person,

(b) by leaving it at the address at which the person carries on business or ordinarily resides or, in the case in which an address for service has been furnished, at that address, or

(c) by sending it by post in a prepaid registered letter to the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, to that address.

(2) Where a notice under these Regulations is to be given to a person who is the owner or occupier of land and the name of the person cannot be ascertained by reasonable inquiry, it may be addressed to the person by using the words "the owner" or, as the case may require, "the occupier".

(3) Where a notice under these Regulations is to be given to the Director it shall be sent by post in a prepaid registered letter bearing the words "The Director of Telecommunications Regulation", and addressed to Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1, or such other address as may be specified for the purpose by the Director in a notice placed by him or her in a newspaper published and circulating in the State.

(4) For the purposes of this Regulation, a company within the meaning of the Companies Acts, 1963 to 1990, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

14. (1) A person who is given a notice under Regulation 3, 4, 5 or 7 may appeal to the appropriate court against the giving of the notice.

(2) An appeal under this Regulation shall state the grounds on which the appeal is made and be made by written notice which shall be lodged with the appropriate office of the court by the appellant not later than 14 days from the date upon which the notice concerned was given to him or her.

(3) A copy of the notice by which a person makes an appeal under this Regulation shall be given by him or her to the Director.

(4) On the hearing of an appeal under this Regulation the appropriate court may, as it thinks fit, confirm the notice concerned or annul the notice.

(5) If, in relation to an appeal under this Regulation to the District Court, that court becomes of opinion during the hearing of the appeal that the value of the equipment, the subject of the appeal, exceeds £5,000, it may, if it so thinks fit, transfer the appeal to the Circuit Court or the High Court, whichever it considers appropriate having regard to its opinion of the value of the equipment.

(6) If, in relation to an appeal under this Regulation to the Circuit Court, that court becomes of opinion during the hearing of the appeal that the value of the equipment, the subject of the appeal, exceeds £30,000, it may, if it so thinks fit, transfer the appeal to the High Court.

(7) Paragraphs (5) and (6) are without prejudice to the jurisdiction of a court (being either the District Court or the Circuit Court) to determine an appeal under this Regulation in relation to which it was, at the time of the hearing of the appeal, the appropriate court.

(8) An appeal under this Regulation to the District Court shall be determined by the judge of the District Court for the district court district in which the equipment concerned was placed on the market or the appellant ordinarily resides or carries on business.

(9) An appeal under this Regulation to the Circuit Court shall be determined by the judge of the Circuit Court for the circuit in which the equipment concerned was placed on the market or the appellant ordinarily resides or carries on business.

(10) For the purposes of this Regulation, a company within the meaning of the Companies Acts, 1963 to 1990, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

(11) In this Regulation "appropriate court" means--

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

(b) in case the estimated value of the equipment concerned does not exceed £30,000, the Circuit Court,

(c) in any case, the High Court.

15. (1) Proceedings for an offence under these Regulations may be brought and prosecuted by the Director.

(2) Where an offence under these Regulations has been committed by a body corporate, and is proved to have been 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 or she were guilty of the first-mentioned offence.

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

GIVEN under my Official Seal, this 5th day of June, 1998.

MARY O'ROURKE,

Minister for Public Enterprise.

EXPLANATORY NOTE.

The purpose of these Regulations is to give legal effect, in respect of satellite earth station equipment, to Directive 98/13/EC of the European Parliament and of the Council of 12 February 1998 relating to telecommunications terminal equipment and satellite earth station equipment, including the mutual recognition of their conformity.