First Memorandum by the Department of the Environment,
Transport and the Regions
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
(iii) sufficient in number to enable the dealer to place
one label on each appliance which he proposes to display to potential
(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
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
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
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
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;"
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
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
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