Memorandum by the Department of the Environment, Transport
and the Regions
1997 (S.I. 1997/1941)
1. By a letter from its Clerk dated 5 November 1997 the Committee
has requested a memorandum on four points in these Regulations,
on which the Department would comment as follows.
(1) Explain the purpose and effect of regulation 2(2),
and whether it is intended to operate in relation to the failure
of compliance mentioned in paragraph 9 of Part II of Schedule
2. Regulation 2(2) provides that, in respect of acts done
in another Member State, compliance with requirements equivalent
to those under these Regulations in that state is included in
references to compliance with the Regulations. This has effect,
for example, in relation to technical documentation required by
regulation 6: if the documentation has been established in another
Member State by a manufacturer operating there and in the United
Kingdom, compliance with the equivalent requirement in that state
is sufficient compliance. This may also be relevant for paragraph
9 of Part II of Schedule 3 as an enforcement authority in the
United Kingdom may need to see that technical documentation when
it suspects that an appliance fails to satisfy the requirements
of the Regulations.
(2) Regulation 10(4) requires an enforcement authority
to take certain steps after it takes a decision pursuant to these
Regulations which amounts to or includes a restriction on the
placing on the market of an appliance. Identify the decision-making
powers of an enforcement authority to which this provision relates.
3. The powers in question would be to take decisions which
lead to the authority instituting civil proceedings against a
supplier or manufacturer, to enforce by injunction the obligations
contained in, for example, regulation 8 (suppliers' duties in
respect of non-conforming appliances) or 9 (manufacturers' duties
in respect of the manufacturing process); for, if such proceedings
are successful, they are very likely to result in restrictions
being imposed on the placing on the market of an appliance while
non-compliance with the Regulations continues. We would not consider
decisions to institute criminal proceedings (for any of the offences
listed in paragraph 1(1) of Schedule 3) or to suggest remedial
action (under paragraph 6 of that Schedule) as falling within
(3) Explain what sanctions are intended for breach
of the duties imposed by regulations 8 and 9.
4. Regulations 8 and 9 are intended to be enforced by civil
injunctive proceedings issued by the enforcement authority. There
is no criminal sanction for breach of these regulations because
neither can be breached without also breaching both of regulations
4(1) and 5(2). Under paragraph 1(1) of Part I of Schedule 3, each
of these latter breaches is an offence.
(4) Paragraph 1(2) of Schedule 3 makes the offence
of contravening paragraph 15(1) triable either way, that is, on
indictment or summarily, and, as regards summary conviction, states
the maximum fine in terms of "level 5 on the standard scale".
Ought not the maximum fine to have been expressed in terms of
the statutory maximum?
5. Under paragraph 1(1)(d) of Schedule 2 of the European
Communities Act 1972, the maximum fine on summary conviction which
can be imposed by instruments transposing Community obligations
is level 5 on the standard scale. Paragraph 1(2) of Schedule 3
to the present Regulations deals with the paragraph 15(1) offence,
which is triable "either way" and for which the maximum
fine on summary conviction is the "statutory maximum".
Currently the statutory maximum is set at the same level as level
5 on the standard scale for summary offences and therefore the
1972 Act requirement is satisfied by referring to the "statutory
maximum". However, there is an argument that, because the
statutory maximum could be raised above the level 5 limit on the
standard scale in the future, a direct reference to the level
5 limit would ensure that paragraph 1(2) remains intra vires
at all times: c.f., the Committee's 26th Report of Session 1993-94
at pages 27-28.
11th November 1997