Joint Committee on Statutory Instruments Seventeenth Report


Memorandum by the Department of Trade and Industry


REGULATIONS 2000 (S.I 2000/730)

  1. The Committee has, in a letter of 5 April 2000, requested a memorandum on four points.

    (1)  Regulation 6(2) makes two "principles" (permitted displays of apparatus and restriction of switching on of radio equipment) apply in respect of the application of the Telecommunications Act 1984 and the Wireless Telegraphy Acts 1949 and 1967. Indicate which provisions of those Acts are intended to be amended or qualified by these principles.

  2. The two principles implement respectively Articles 8.2 and 7.2 of Directive 1999/5/EC on radio equipment and telecommunications terminal equipment. The provisions of the 1949 and 1967 Acts affected are:

    1949 Act: sections 1, 1A, 3, 10, 11 and 12;
    1967 Act: section 7;
    1984 Act: sections 5, 28, 29, 85 and 86.

    (2)  What sanction is there for the prohibition in regulation 10(6) on misleading marks fixed to apparatus? If there is none, explain why this is so.

  3. Regulation 5(1) prohibits the placing on the market of apparatus covered by the Regulations unless the requirements of regulation 5(2) have been complied with. Regulation 5(2)(d) requires the CE marking to have been affixed in accordance with regulation 10. Breach of the prohibition in regulation 10(6) would cause the affixing of the marking not to be in accordance with regulation 10, and thus cause the prohibition in regulation 5(1) to be contravened. Contravention of regulation 5(1) is an offence under regulation 19(a), punishable under regulation 20(1).

    (3)  Regulation 18(2) authorises an enforcement notice to be served on the manufacturer of the apparatus "or his authorised representative established within the Community". Is this intended to authorise service on a representative in a Member State other than the United Kingdom? If it is, explain (a) what provision of United Kingdom or Community law authorises or gives effect to such service and (b) what sanction would follow non-compliance with a notice so served.

  4. Service on representatives in other member states is intended. (a) The Department does not consider that any further provision of law is required to give effect to such service. It is sufficient that the usual practice be observed of effecting service either by or with the assent of the authorities of the member state in question: there is no legal requirement for this practice, but it is in accordance with the principle of diplomatic comity that a state should not do anything constituting an act of authority in the territory of another state without the assent of that other state. (b) There is no sanction for non-compliance with a notice. As regulation 18(4)(d) provides, if non-conformity with the Regulations continues, the enforcement authority may take further action under the Regulations - ie, prosecute for an offence under regulation 19(a) in respect of contravention of regulation 5(1) - in respect of the apparatus in question or apparatus of the same type.

    (4)  In Schedule 9, paragraph 1(2) (application of Consumer Protection Act sections), explain why section 38(1)(c) is not also omitted (as inapplicable).

  5. This was an oversight, for which the Department apologises. The error will be corrected when a suitable opportunity is presented. The Department does not consider that the error will have any adverse effect, precisely because the provision is inapplicable.

10th April 2000

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