The military CE marking conundrum

4 mins read

Many manufacturers and suppliers of electronic military equipment are confused about CE marking requirements, with many presuming their products are exempt from normal commercial regulations. However, the interpretation of military equipment exemption has changed recently.

The CE mark is a visible sign that a product complies with all the relevant product supply laws and, with its Declaration of Conformity, shows that it conforms with the relevant safety directives. Just because a product is being sold to the armed forces does not exempt it automatically from CE marking requirements. Whilst the military often has specific compliance requirements, such equipment is still not exempt under European Union (EU) law from Directives and their harmonised standards. In Europe, all public sector procurement is subject to the Treaty on the Functioning of the European Union (TFEU), which seeks to ensure a free market in goods, services and works across the EU. This includes military and sensitive security equipment, which above a certain threshold is subject to the Defence and Security Directive 2009/81/EC, as well as Article 346 of the TFEU. Consequently, defence contracts must be procured via a competitive tender, with the required military products complying with the relevant CE marking directives. Exceptions to the rule Of course, there are exceptions, but these are increasingly rare as the EU seeks to strengthen the internal European defence market. In the EU, military equipment is defined in a '1958 list' (Council Decision 255/58) and includes all military electronic equipment, but does not in itself provide any exemption. Only Article 346 of the TFEU provides legal exemption from the internal market rules. If a Member State deems that a defence contract falls within the scope of Article 346, it can withhold information if it believes disclosure will impact national security negatively. An EC document – Interpretive Communication COM (2006) 779 Final – was made to prevent possible misinterpretation and misuse of Article 346 by Member States. This states 'Military items included in the 1958 list are not automatically exempted from the rules of the European Internal Market'. Therefore, exemption under Article 346 must be made on a case by case basis and can only be made by the Member State, not by the manufacturer or supplier. Even if a product is proven to be exempt under Article 346, the UK's Ministry of Defence (MoD) still requires evidence to show that it is at least compliant with the essential requirements of the relevant directives or standards. The MoD says 'Even where a specific exclusion exists within legislation, then equivalent levels of protection shall be applied and documented'. The MoD may also introduce specific and more stringent standards for compliance. What applies? If a product is not exempted, then which CE marking directives apply? The EC issued a statement about military equipment on 23 April 2012, directing that equipment within the scope of the Radio & Telecom Terminal Equipment (R&TTE 1999/5/EC), Electromagnetic Compatibility (EMC 2004/108/EC) and Low Voltage (LVD 2006/95/EC) Directives shall be compliant and bear CE marking. There are 24 EU Directives that require CE marking and it is the manufacturer's responsibility to identify those that apply to their product. Each of these Directives has its own specific requirements for military equipment and must therefore be reviewed and applied according to the particular type of equipment under consideration. For example, the Low Voltage Directive applies to all electrical equipment (50 to 1000V ac and 75 to 1500V dc) and has no exclusions for military equipment, while the Machinery Directive (2006/42/EC) excludes weapons and machinery specifically constructed for military purposes. The Marine Equipment Directive (MED 96/98/EC) has exclusions for warships, but as naval ships undertake many peacetime roles, the MED actually applies. However, the MED requires the Wheelmark, rather than CE marking. As a more detailed example, the scope of the R&TTE Directive includes radio communications transmitters and telecommunications equipment that connect to public networks. Exceptions to the scope are: * Apparatus used exclusively for public security, defence, state security and state activities in the area of criminal law * Marine equipment (within the scope of the MED), civil aviation equipment and air traffic management equipment, all of which are covered by their specific regulations, and * Amateur radio equipment, broadcast radio receivers, cabling and wiring. Perhaps confusingly for manufacturers, if military equipment is excluded from the scope of one particular directive, it may then fall back under the scope of another directive. For example, the EMC Directive has no exclusions for military equipment and states that 'Radio and telecommunications terminal equipment not covered by Directive 1999/5/EC (R&TTE) remains subject to the provision of the EMC Directive'. Therefore, military radio equipment is exempt from the R&TTE Directive, but falls back under the EMC and LV Directives. Radio transmission is not subject to a Directive, but still has to meet national spectrum usage rules. EMC compliance is of particular concern to the military as it can result in catastrophic failures of hardware. Annex F of the MoD Defence Standard 59-411 offers a guide to project managers on compliance with the EMC Directive. For example, it asks them to state clearly in the contract what verification evidence is required, as meeting the requirements of the EMC Directive alone does not ensure the equipment will work in a military environment. It also outlines the process for applying Article 346. Best practice When ensuring that products comply with both CE marking and specific military requirements, a manufacturer must always consider: * Intended use. How does the manufacturer intend the equipment to be used? This may include a decision as to when particular peacetime or war modes of operation will be used. * Interfaces. Where does the equipment interface to public users? For example, the radiated impact on radio/TV reception, connection to public mains power, connection to public telecommunications systems etc. * Environment. In which environment will the equipment operate? Is it one solely represented by military standards or do other standards apply? Compliance evidence to military standards can be reused to meet the essential requirements of a directive, if it is equivalent. For example, in the case of EMC, there is a CENELEC Guide to EMC Directive conformity of equipment designed for military purposes (PD CLC/TR 50538). This instructs how to read-across the results from military compliance testing to EMC Directive harmonised commercial standards. Although military applications often have their own standards that run alongside the EU's CE marking requirements, reading across the results from military compliance testing to commercial standards can be complex and can lead to a process referred to as 'gap analysis'. However, even if your product is exempt from CE marking requirements, it makes best practice sense to follow the guidelines set out in the relevant directives and standards. It is clear that, in most cases, CE marking exemptions no longer apply to military equipment. It is therefore essential that manufacturers understand how to apply the vast range of possible relevant standards and directives to ensure the compliance and the saleability of products for the military market. Jean-Louis Evans is managing director of TÜV SÜD Product Service.