Joint Committee on Statutory Instruments Thirteenth Report


APPENDIX XII

First Memorandum by the Department of the Environment, Transport and the Regions

ENERGY INFORMATION (COMBINED WASHER-DRIERS) REGULATIONS 1997 (S.I. 1997/1624)

  1. By a letter from its Clerk dated 23 July 1997 the Committee has requested a memorandum on four points on these Regulations, on which the Department would comment as follows.

    "(1)   Given that regulation 4(2) imposes on the supplier of an appliance a duty to provide the dealer with a label which (if in English) complies with Schedules 1 and 4 (which reproduce Commission Directive 96/60/EC) and (if it is not in English) complies with that Directive, explain what duty additional to that is imposed by paragraph (1) to provide such label as may be necessary to enable the dealer to comply with his obligations under the Directives."

  2. Paragraphs (1) and (2) of regulation 4 combine to set out the duty on suppliers to provide complying labels. Paragraph (2) sets out the requirements as to language version, form and content of labels; whilst paragraph (1) imposes the following additional elements of the duty:

      (a)   the duty falls on the supplier of an appliance;

      (b)   the substance of the duty is:

        (i)   to provide to a dealer

        (ii)   complying labels within the meaning of paragraph (2)

        (iii)   sufficient in number to enable the dealer to place one label on each appliance which he proposes to display to potential customers

        (iv)   free of charge.

  The particular words of regulation 4(1) identified by the Committee - "such label as may be necessary to enable the dealer to comply with his obligations imposed pursuant to the Directives" - have the substantive effect described in paragraph (b)(iii).

       "(2)   As regards regulation 7(1) and (2) -

        (a)   explain what is the (legal) effect of making the supplier `responsible for the accuracy' of the information given on a label or in an information notice; and

        (b)   explain what deeming a label or information notice to comply with the Regulations unless there is evidence to the contrary adds to the ordinary legal principle that proceedings for an offence or other enforcement action could only be taken if there were some evidence of a failure to comply."

  3. With reference to the Committee's point (2)(a), the legal effect of making the supplier responsible for the accuracy of the information given on a label or in an information notice is to exclude the dealer (or indeed any other person) from potential liability under the Regulations for inaccuracy of the information (but the parties' contractual arrangements, for example, as to liability between themselves for the results of any misinformation would not be affected). As the Committee is aware, regulation 7(1) transposes article 3(3) of Council Directive 92/75/EEC.

  4. With reference to point (2)(b), we agree that regulation 7(2) does not add to the ordinary legal principle identified by the Committee. However, the principle is expressly set out in article 8(2) of Council Directive 92/75/EEC and we thought it would be helpful for it to appear expressly in the Regulations.

    "(3)   In regulation 10(1), are the `similar obligations imposed pursuant to the Directives' the obligations contained in article 3(2) of Council Directive 92/75/EEC and article 2(3) and (5) of Commission Directive 96/60/EC? If not, what are they? And, in either event, why were they not specified?"

  5. The "similar obligations imposed pursuant to the Directives" are indeed those identified by the Committee. We thought it was not necessary to specify what these provisions are as readers wishing to discover the detailed requirements in this field in another Member State would in any event have to study the Directives together with the national laws in question. However we can see that it might have proved helpful to readers if the relevant provisions of the Directives had been cited in regulation 10(1) and will bear this in mind in future cases.

    "(4)   As regards the duty imposed by regulation 10 which regulation 11 disapplies in the circumstances specified in regulation 11, that is, where an appliance is offered for sale by any means which imply that the potential purchaser cannot be expected to see the appliance displayed, explain what effect (if any) regulation 10 has, given that the duty it imposes only arises where an appliance is offered for sale in circumstances such that potential purchasers do not see the appliance displayed."

  6. Regulations 9 and 10 apply where an appliance is offered for sale by means which normally imply, or where it is normally to be expected, that consumers will see the appliance displayed before they buy it. The classic example is a retail store selling domestic appliances. Where the appliance is in fact displayed, regulation 9 applies and the dealer must attach a complying label visibly to the appliance. Regulation 10 applies where, although it is normally expectable that the appliance will be displayed, in fact it is not (for example, where the retailer does not display all his stock); hence the words "in circumstances such that potential purchasers do not see the appliance displayed" (our emphasis). In such cases a complying information notice is to be made available for inspection by potential purchasers before they buy.

  7. By contrast, regulation 12 applies where an appliance is offered for sale by means which imply that normally the appliance will not be seen by potential purchasers before they buy. Sale by mail order or by catalogue would be classic examples and are expressly mentioned in the regulation. In these "Mail order and other distance selling" cases, as Schedule 3 terms them, the obligation is to include in the mail order, etc., catalogue the information specified by that Schedule. The words "which imply that the potential purchaser cannot be expected to see the appliance displayed" (our emphasis), which are taken from article 5 of Council Directive 92/75/EEC, are intended to identify such distance-sales as a separate category to the conventional retail sales provided for by regulations 9 and 10.

  8. Thus regulation 10 applies in retail sales where the appliance is expected to be displayed but in fact is not displayed, whilst regulation 12 applies in distance sales where the appliance is not expected to be displayed. Regulation 11 provides that only one of regulation 10 or 12 can apply, never both.

28th July 1997

Second Memorandum by the Department of the Environment, Transport and the Regions

ENERGY INFORMATION (COMBINED WASHER-DRIERS) REGULATIONS 1997 (S.I. 1997/1624)

  1. By a letter from its Clerk dated 29 October 1997 the Committee has requested a further memorandum on three points on these Regulations, on which the Department would comment as follows.

    (1)   Identify the Community obligation(s) which are implemented by regulation 10(2) (dealers' duty in respect of information notices).

  2. The Community obligations which regulation 10(2) implements are in the ninth recital of the preamble to, and Articles 1(1) and 2(1) of Council Directive 92/75/EEC ("the Framework Directive"). In the table of derivations submitted with the regulations we also cited Article 4(a), which is relevant as background.

  3. The ninth recital provides: -

    " . . . it is therefore necessary to introduce a uniform label for all appliances of the same type, to provide potential purchasers with supplementary standardized information on those appliances' costs in terms of energy and the consumption of other resources and to take measures to ensure that potential purchasers who do not see the appliances displayed, and thus have no opportunity to see the label, are also supplied with this information;" (our emphasis).

  In the body of the Framework Directive, the main obligations are the overlapping ones contained in Articles 1(1) and 2(1), to publish and bring to consumers' attention - primarily "by means of a fiche and a label", to quote from Article 2(1) - the information required by any particular labelling scheme. Article 4(a) requires a label to be attached to an appliance "whenever an appliance specified in an implementing directive is displayed": which raises the question as to what should be done when the appliance is not displayed.

  4. One set of contexts in which appliances are not displayed are "distance selling" cases, but special provisions - not involving information notices - apply to such distance sales as are covered by Commission Directive 96/60/EC. However, no express provision in the Framework Directive or Commission Directive 96/60/EC covers cases occurring within conventional retail contexts (e.g. a shop) where the appliance in question is not displayed in the showroom - yet the words of the ninth recital highlighted above extend to such cases and it is considered that the required information ought to be made available to potential purchasers in this second set of cases. Regulation 10(2) is intended to deal with this.

    (2)   Given that regulation 9 applies only in respect of displayed appliances, and regulation 11 deals only with circumstances in which appliances are offered for sale by mail order, catalogue or other means excluding sight of the appliances, explain why the latter regulation disapplies the former and the effect of the disapplication.

  5. Regulation 11 disapplies regulation 9 because we were concerned that there might be circumstances in which, although the context is a "distance-selling" one, the appliance might actually be physically presented to the consumer before the sale took place. We do not think that is likely to happen, but we thought it a wise precaution to make the disapplication in case there could be any such cases.

    (3)   The requirements for "distance selling" in regulation 12 are limited to printed communications (with the stated exceptions), whereas the circumstances in which regulation 11 limits the other dealers' duties (under regulations 9 and 10) appear to include offers for sale by means other than printed communications (" . . . or by other means which imply", etc.). The effect appears to exclude altogether from the regime (of regulations 9, 10 and 12) certain offers for sale which do not involve printed communications (e.g., telephone offers). Indicate whether or not this is so and how the result obtained is in conformity with the Directives.

  6. The Committee's conclusion is correct: "distance sales" under which the offer for sale, etc., is not made by printed communication are not covered by the Regulations. This is because Article 5 of the Framework Directive, which applies to offers for sale, etc., "by mail order, by catalogue or by other means which imply that the potential purchaser cannot be expected to see the appliance displayed", has been implemented by Article 2(4) of Commission Directive 96/60/EC only so far as concerns distance sales by means of "printed communications, such as a mail order catalogue". It is the wider wording of Article 5 of the Framework Directive which is reproduced in regulation 11.

  7. What has happened is that the implementing directives up to and including Commission Directive 96/60/EC have specified information requirements only for those "distance selling" cases covered by Article 5 of the Framework Directive which involve printed communications such as mail order catalogues. Until now, these have been the significant cases, but there is awareness that telephone sales and on-line sales are becoming more significant and it may be that, in the light of the review of the implementation of the Framework Directive which the European Commission will shortly be carrying out under Article 11 of that directive, the policy will change towards wider coverage.

6th November 1997


 
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