S.I. No. 40/1998 - European Communities (Recreational Craft) Regulations, 1998

S.I. No. 40 of 1998.

EUROPEAN COMMUNITIES (RECREATIONAL CRAFT) REGULATIONS, 1998.

I, MICHAEL WOODS, Minister for the Marine and Natural Resources, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving full effect to Council Directive 94/25/EC^(1) of 16 June, 1994, on the approximation of the laws, regulations and administrative provisions of the Member States relating to recreational craft, hereby make the following Regulations:

^(1)O.J. No. L164, 30.6.94, p.15.

1 Citation and Commencement

1.

1. These Regulations may be cited as the European Communities (Recreational Craft) Regulations, 1998 and shall come into operation on the 27th day of February, 1998.

2 Definitions

2.

2. (1) In these Regulations:—

"authorised officer" means a person appointed under regulation 13;

"authorised representative" means an authorised representative established within the Community;

"CE marking" means the mark of conformity consisting of the initials "CE", taking the form of the specimen given in Annex IV of the Directive;

"the Commission" means the Commission of the European Communities;

"the Community" means the European Community;

"component" means any one of the components listed in Annex II of the Directive, whether separate or installed, which is intended for use in recreational craft;

"the Directive" means European Parliament and Council Directive 94/25/EC of 16 June, 1994;

"free movement" means the placing on the market and putting into service of a product covered by these Regulations;

"Member State"means a Member State of the Community;

"Minister" means the Minister for the Marine and Natural Resources;

"notified body" means a body appointed under regulation 8;

"partly completed boat" means a recreational craft consisting of a hull and one or more components;

"place on the market" means import, sell (whether by wholesale or retail), offer or expose for such sale, distribute free of charge, or supply by a manufacturer for any of those purposes, and cognate words shall be construed accordingly;

"product" means any recreational craft, partly completed recreational craft or component;

"putting into service" means the use in the Community for the first time, by the final user, of a product to which these Regulations apply;

"recreational craft" means any boat of any type, regardless of the means of propulsion, whose hull when measured in accordance with the appropriate harmonised standards concerned, is not less than 2.5 metres and not more than 24 metres in length and which is intended for sports and leisure proposes and shall include recreational craft intended for use for charter or recreational boat training when placed on the market for recreational purposes.

• (2) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations that it has in the Directive.

• (3) In these Regulations unless otherwise indicated-

• (a) a reference to a regulation is to a regulation of these Regulations,

• (b) a reference to a paragraph or subparagraph is to a paragraph or subparagraph of the regulation in which the reference occurs, and

• (c) a reference to an Annex is to an Annex of the Directive.

3 Application and Exclusions

3.

3. (1) These Regulations shall apply to recreational craft, partly completed boats and components.

• (2) These Regulations shall not apply to any product to which these Regulations apply and which is placed on the market and put into service on or before the 15th day of June, 1998, and which complies with any rules in force in the State on the 16th day of June, 1994.

• (3) These Regulations shall not apply to all or any of the following, namely —

• (a) craft intended solely for racing, including rowing racing boats and training rowing boats labelled as such by the manufacturer,

• (b) canoes and kayaks, gondolas and pedalos,

• (c) sailing surfboards,

• (d) powered surfboards, personal watercraft and other similar powered craft,

• (e) original, and individual replicas of, historical craft designed before 1950, built predominantly with the original materials and labelled as such by the manufacturer,

• (f) experimental craft, provided that they are not subsequently placed on the Community market,

• (g) craft built for own use, provided that they are not subsequently placed on the market during a period of five years,

• (h) craft specifically intended to be crewed and to carry passengers for commercial purposes (except craft also capable of being used as recreational craft) in particular those defined in Directive 82/716/EEC of 4 October, 1982^(2), laying down technical requirements for inland waterway vessels, regardless of the number of passengers,

^(2)O.J. No. L301, 28.10.1982, p.1

• (i) submersibles,

• (j) air cushion vehicles, and

• (k) hydrofoils.

4 Placing on the Market and Putting into Service

4.

4. A person shall neither place on the market nor put into service for use in accordance with its intended purpose, a product to which these Regulations apply, unless when correctly constructed and maintained, the product does not endanger—

• (a) the safety and health of persons,

• (b) property, or

• (c) the environment,

and the product complies with the essential safety requirements set out in Annex 1.

5 Free Movement

5.

5. (1) Nothing in these Regulations shall either prohibit, restrict or impede:

• (a) the placing on the market and putting into service of the products to which these Regulations apply and bearing the CE marking which indicates the conformity of those products with the provisions of these Regulations;

• (b) the placing on the market of partly completed boats, where the builder, his or her authorised representative or the person responsible for the placing on the market declares, in accordance with Annex III(a), that the partly completed boats are intended to be completed by others;

• (c) the placing on the market and putting into service of components and bearing the CE marking which indicates the conformity of the components with the relevant essential safety requirements where these components are intended to be incorporated into recreational craft in accordance with the declaration referred to in Annex III(b), of the manufacturer, his or her authorised representative, or, in the case of imports from a third country, of any person who places those components on the market.

• (2) Nothing in these Regulations shall prevent the showing at a trade fair, exhibition, demonstration or similar event of the products to which these Regulations apply and which do not comply with these Regulations, provided that a clearly visible and legible notice is displayed indicating that those products —

• (a) do not comply with these Regulations, and

• (b) may not be placed on the market or put into service until they comply with these Regulations.

6 Safeguard Clause

6.

6. (1) Where the Minister or an authorised officer is of the opinion that there may be or there has been a contravention of regulation 4 the Minister or the authorised officer may, by direction in writing stating the reasons for such direction and given to or sent to the person who is placing or has placed on the market a product to which these Regulations apply—

• (a) prohibit him or her from placing or continuing to place that product on the market,

• (b) impose restrictions on him or her so doing, or

• (c) require him or her to take all practicable steps to withdraw from the market any such product already placed by him or her on the market,

and that person shall comply with the direction.

• (2) The Minister may, as he or she thinks fit, withdraw a direction given by him or her or an authorised officer under paragraph (1).

• (3) Where the Minister or an authorised officer gives a direction under paragraph (1) or the Minister withdraws a direction under paragraph (2) the Minister shall immediately inform the Commission of the fact indicating the reasons for having given or withdrawn the direction.

• (4) Any importer or manufacturer affected by a direction given under paragraph (1) may appeal to the High Court against the direction and the Court, as it thinks proper, may vary, annul or confirm the direction.

• (5) Where such an appeal arises a document purporting to be a direction given by the Minister or an authorised officer under paragraph (1) and to be signed by the Minister or the authorised officer shall be received in evidence and deemed to be such a direction without further proof, unless the contrary is shown.

7 Conformity Assessment

7.

7. (1) Before producing and placing on the market any of the products to which these Regulations apply, the manufacturer or his or her authorised representative shall apply the procedures for boat design set out in paragraphs (2) to (4).

• (2) The procedures for boat design categories A and B as referred to in section 1 of Annex 1 —

• (a) in respect of boats whose hull measures less than 12 metres in length, shall be the internal production control plus tests (module Aa) referred to in Annex VI;

• (b) in respect of boats whose hull measures from 12 metres to 24 metres in length, shall be the EC type-examination (module B) referred to in Annex VII supplemented by module C (type conformity) referred to in Annex VIII, or any of the following modules referred to in the Annexes: B plus D, or B plus F, or G or H.

• (3) The procedures for boat design category C as referred to in section 1 of Annex 1 —

• (a) in respect of boats whose hull measures from 2.5 metres to less than 12 metres in length:

• (i) where the harmonized standards relating to sections 3.2 and 3.3 of Annex I are complied with, shall be the internal production control (module A), referred to in Annex V;

• (ii) where the harmonized standards relating Sections 3.2 and 3.3 of Annex I are not complied with, shall be the internal production control plus tests (module Aa) referred to in Annex VI.

• (b) in respect of boats whose hull measures from 12 metres to 24 metres in length, shall be the EC type-examination (module B) referred to in Annex VII followed by module C (type conformity) referred to in Annex VIII, or any of the following modules referred to in the Annexes: B plus D, or B plus F, or G or H.

• (4) The procedures for boat design category D as referred to in Section 1 of Annex 1 in respect of boats whose hull measures from 2.5 metres to 24 metres in length shall be the internal production control (module A) referred to in Annex V.

• (5) The procedures for components shall be any of the following modules referred to in the Annexes: B plus C, or B plus D, or B plus F, or G or H.

8 Appointment of Notified Bodies

8.

8. (1) The Minister may appoint one or more bodies to exercise in the State the functions in regard to the conformity assessment procedures referred to in regulation 7, the carrying out of EC type examinations referred to in regulation 11 and the other functions of notified bodies specified in the Directive and shall publish details of the appointment in Iris Oifigiúil.

• (2) In making an appointment under paragraph (1), the Minister shall take into account the minimum criteria specified in Annex XIV for the efficient and proper functioning of a notified body in the State and the Minister may in making such an appointment, attach from time to time such conditions thereto as he or she thinks fit.

• (3) An appointment under paragraph (1) —

• (a) may be for a fixed or an indefinite time,

• (b) may be revoked by the Minister at any time,

• (c) may, at the request of the notified body, be terminated upon 90 days' notice in writing to the Minister, and

• (d) shall be revoked by the Minister if he or she has reason to believe that the notified body in the State no longer satisfies the criteria referred to in paragraph (2).

• (4) The Minister may amend or revoke all or any of the conditions (if any) attached under paragraph (2) to an appointment under paragraph (1) or attach such additional conditions from time to time to such an appointment for the efficient and proper functioning of the body in question.

• (5) A notified body appointed under this Regulation shall have an identification number assigned to it by the Commission.

9 Fees Payable to Notified Bodies

9.

9. (1) A notified body in the State may charge a fee (in these Regulations called the "appropriate fee") which shall be equal to the amount which the body estimates it will incur in, or in connection with, carrying out or causing to be carried out the functions referred to in these Regulations in respect of the application concerned.

• (2) Where the costs incurred are greater that the appropriate fee, the difference between those costs and that fee shall be payable by the manufacturer or his or her authorised representative to the notified body in the State, and where those costs are less than the appropriate fee, the difference between those costs and that fee shall be repayable by the notified body to the manufacturer or his or her authorised representative.

• (3) The notified body may recover, as a simple contract debt in any court of competent jurisdiction, from the person by whom it is payable any amount due and owing to it under this regulation.

10 CE Marking

10.

10. (1) A person shall not place on the market a recreational craft or a component that meets the essential requirements referred to in regulation 4 unless the craft or component bears the CE marking in a visible, legible and indelible form and that the following requirements are satisfied, namely—

• (a) In the case of recreational craft, the CE marking shall be affixed in accordance with section 2.2 of Annex I, and

• (b) In the case of any component, the CE marking shall be affixed either on the component itself or on its packaging or both on the component and on the packaging.

• (2) CE marking shall in each case be accompanied by the identification number of the notified body concerned.

• (3)
• (a) A person shall not place on the market a recreational craft or component that bears a marking or an inscription which is likely to mislead third parties with regard to the meaning or the form of the CE marking.

• (b) Any other markings may be affixed to the recreational craft and components or on their packaging or both on the recreational craft and components and on their packaging, provided that the visibility and legibility of the CE marking is not thereby reduced.

• (4) Notwithstanding Regulation 6 -

• (a) where the Minister, or an authorised officer is of the opinion that a recreational craft or component is being placed or has been placed on the market to which the CE marking has been wrongly affixed, the Minister or authorised officer may, by direction in writing stating the reasons for such direction and given to the manufacturer or his or her authorised representative, direct that the recreational craft or component comply with this Regulation and that the manufacturer or his or her authorised representative end the infringement within such period as may be specified in the direction;

• (b) where a direction under subparagraph (a) is not complied with, the Minister or the authorised officer may by direction in writing given to the manufacturer or his or her authorised representative prohibit him or her from placing or continuing to place on the market such recreational craft or components, impose restrictions on his or her so doing or re`quire him or her to take all practicable steps to withdraw from the market any such recreational craft or components already placed by him or her on the market, and that person shall comply with the direction.

• (c) The Minister may, as he or she thinks fit, withdraw a direction given by him or her or an authorised officer under subparagraph (a) or (b).

• (d) Where the Minister or an authorised officer gives a direction under subparagraph (a) or (b) or the Minister withdraws a direction under subparagraph (c) the Minister shall immediately inform the Commission of the fact indicating the reasons for having given or withdrawn the direction.

• (e) Any manufacturer or his or her authorised representative who is affected by a direction given under subparagraph (a) or (b) may appeal to the High Court against the direction and the Court, as it thinks proper, may vary, annul or confirm that direction.

• (f) Where such an appeal arises a document purporting to be a direction given by the Minister or an authorised officer under subparagraph (a) or (b) and to be signed by the Minister or the authorised officer shall be received in evidence and deemed to be such a direction without further proof, unless the contrary is shown.

• (5) Where the products to which these Regulations apply come within the scope of a directive, other than the Directive, and that directive also provides for the affixing of the CE marking, the affixing of the CE marking shall indicate that the said products also fulfil the provisions of that other directive, provided that —

• (a) if the other directive allows the manufacturer to choose which arrangements to apply during a transitional period, the CE marking shall indicate that the product in question fulfils the provisions of that directive applied by the manufacturer, and

• (b) particulars of the directives applied by the manufacturer, as published in the Official Journal of the European Communities, shall be given in the documents, notices or instructions required by the directives and accompanying the product.

11 EC Type-Examination Certificate

11.

11. (1) On an application for an EC type-examination certificate, in respect of any product to which these Regulations apply, being made in accordance with Annex VII and on receipt of the appropriate fee, a notified body in the State shall carry out, or cause to be carried out, on its behalf, such examinations, tests and checks as are required for EC type-examination under the Directive.

• (2) Where the notified body in the State, on application being made to it under paragraph (1), and after examining the documents supplied by the applicant and after carrying out or causing to be carried out the examinations, tests and checks on the product in accordance with Annex VII —

• (a) is satisfied that the product submitted to it for the purposes of the EC type-examination complies with the provisions of the Directive applicable to it, it shall issue to the applicant an EC type-examination certificate in the form specified in the Directive, or

• (b) is satisfied that the product type submitted to it for the purposes of the EC type-examination does not satisfy the requirements of the Directive, it shall refuse to grant an EC type-examination certificate in respect of that product and shall so inform the applicant.

• (3) Where a notified body in the State is satisfied that a product to which these Regulations apply is not being manufactured in conformity with the essential safety requirements, it shall, as appropriate, suspend or withdraw any EC type-examination certificate granted in respect of the product.

• (4) Where a notified body suspends or withdraws, under paragraph (3), an EC type-examination certificate issued by it, the notified body shall so inform the other notified bodies in the Community and the Minister, giving the reasons for its decision.

• (5) On taking a decision to refuse to grant an EC type examination certificate or a decision under paragraph (3) to suspend or withdraw such a certificate, a notified body shall as soon as practicable thereafter, send to the manufacturer or his or her authorised representative a notice in writing of the decision stating the exact grounds on which the decision is based and informing the manufacturer or his or her authorised representative of his or her right to apply for a review of the decision under regulation 12 and of the time limit for making such an application.

12 Review

12.

12. (1) Any person aggrieved by a decision of a notified body either to-

• (a) refuse to grant an EC type-examination certificate, or

• (b) suspend or withdraw an EC type-examination certificate,

may, by notice in writing given to the Minister not later than 14 days after the receipt by that person of notice of that decision, appeal to the Minister against the decision and the Minister, having considered any submissions made to him or her by the person, the notified body and any other interested parties and the report of any inquiry held under paragraph (2) in relation to the appeal or of any assessor appointed under paragraph (3) in relation thereto, may uphold, vary or reverse the decision of the notified body.

• (2) The Minister may appoint an officer to hold an inquiry in connection with an appeal under this regulation and to report to the Minister on the findings and result of the inquiry.

• (3) The Minister may appoint an assessor to assist him or her and to make a report to him or her in relation to an appeal under this regulation or to assist an officer of the Minister in relation to an inquiry being held by the Minister under paragraph (2).

• (4) A notice of appeal under this Regulation shall state the grounds on which the appeal is made and shall be accompanied by the following documents:

• (a) a copy of the application for an EC type-examination certificate;

• (b) every other document submitted to the approved body in connection with that application; and

• (c) a copy of the notice from the notified body referred to in Regulation 11 (5).

• (5) The person making an appeal to the Minister under this Regulation, may appeal to the High Court against any decision made by the Minister under this Regulation.

• (6) Where such an appeal arises, a document purporting to be a decision of a notified body under Regulation 11 or a decision by the Minister under this Regulation and to be signed by the notified body or the Minister, as the case may be, shall be received in evidence and deemed to be such a decision of the notified body or the Minister without further proof, unless the contrary is shown.

13 Authorised Officers

13.

13. (1) The Minister may appoint as authorised officers such and so many persons as he or she considers necessary for the purposes of these Regulations.

• (2) An authorised officer shall be furnished with a warrant of appointment as an authorised officer and when exercising a power under these Regulations shall, if requested by any person thereby affected, produce the warrant or a copy of it duly authenticated by the Minister for inspection by the person so affected.

• (3) An authorised officer may, on production of the warrant or a duly authenticated copy of it if so required by any person affected, for the purposes of these Regulations and of the Directive-

• (a) at all reasonable times, enter any premises or place in which he or she has reasonable grounds for believing that there is a recreational craft or component, or a recreational craft or component is being manufactured, or any premises or place that are part of an undertaking engaged in the manufacture of recreational craft or components,

• (b) at such premises or place, request the production of, or search for, inspect and take copies of, or extracts from, any books, records or other documents which he or she finds in the course of his or her inspection,

• (c) carry out or have carried out such examinations, tests, inspections and checks of the place and any equipment, machinery or plant in or at the place as he or she reasonably considers to be necessary for the purposes of his or her functions under these Regulations or the Directive,

• (d) require any person at the premises or place and the owner or person in charge and any person employed in connection therewith to give to him or her such information and to produce to him or her such books, documents and other records which are in that person's power or procurement as he or she may reasonably require for the purposes of his or her functions under these Regulations or the Directive,

• (e) take possession of and remove for examination and checking by the Minister or an inspection body, a recreational craft or a component or any part thereof, and retain such recreational craft or component or part thereof for such time as he or she considers reasonable for the purposes of his or her functions under these Regulations.

14 Service of Notices

14.

14. (1) Where a notice, direction or a document is required by these Regulations to be sent or given to a person—

• (a) where the person is other than a Minister, an authorised officer or a notified body, it shall be addressed to the person and may be sent or given to that person in one of the following ways:

• (i) where it is addressed to the person by name, by delivering it to that person;

• (ii) by leaving it at the address at which the person carries on business or ordinarily resides or, in the case in which an address has been furnished under section 2 of Annex VII, at that address;

• (iii) by sending it by post in a prepaid registered letter or package addressed to the person at the address at which that person carries on business or ordinarily resides or, in a case in which an address has been furnished under section 2 of Annex VII, at that address;

• (b) where the person is the Minister, an authorised officer or a notified body, by delivering it or sending it by post in a prepaid registered letter or package to, in the case of the Minister, the Secretary of the Department of the Marine and Natural Resources, Dublin and, in the case of an authorised officer or a notified body, to his or her or its office.

• (2) For the purposes of paragraph (1)(a) a company within the meaning of the Companies Acts, 1963 to 1990, shall be deemed to be ordinarily resident at its registered office, and every other body corporate shall be deemed to be ordinarily resident at its principal office or any other place at which it carries on business.

15 Offences and Penalties

15.

15. (i) A person who—

• (a) obstructs or interferes with an authorised officer in the course of exercising a power conferred on him or her by these Regulations or impedes the exercise by the officer of such power or fails or refuses to comply with a request made, or to answer a question asked, by an authorised officer pursuant to these Regulations or in purported compliance with such request or in answer to such question gives information to an officer that he or she knows to be false or misleading in a material respect, or

• (b) affixes to an appliance a mark or inscription which is likely to be confused with the CE marking, or

• (c) contravenes regulation 4, 6(1) or 10(1), (3) or (4),

shall be guilty of an offence.

• (2) Where an offence under these Regulations has been committed by a body corporate and is proved to have been so committed with the consent, or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first mentioned offence.

• (3) A person guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding£1,500 or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.

16 Prosecution of offences

16.

16. Proceedings for an offence under these Regulations may be brought and prosecuted by the Minister.

GIVEN under my Official Seal, this 19th day of February, 1998

MICHAEL WOODS

Minister for the Marine and Natural Resources

EXPLANATORY NOTE

These Regulations:—

• • give effect to Council Directive 94/25/EC of 16 June, 1994 on the approximation of the laws, regulations and administrative provisions of the member States relating to recreational craft.

• • come into operation on 27th February, 1998, but include a transitional period as provided for in Article 13(3) of the Directive which means that the obligations deriving from the Directive do not come into force until 16th June, 1998.

• • apply to recreational craft, partially completed boats and certain components as further defined in the Regulations.

• • prohibit, with effect from 16th June, 1998, the placing on the market and putting into service of a product referred to in the Regulations if it compromises the safety or health of persons, property or the environment when correctly constructed and maintained and unless it satisfies the requirements of the Directive.

• • provide for the appointment of a notified body by the Minister to carry out the conformity assessment procedures referred to in the Directive.

• • set out the obligations on manufacturers or their authorised representatives and the conditions under which they may issue a declaration of conformity and attach a CE mark.

• • empower the Minister to order the withdrawal from the market of vessels bearing the CE Marking if they are likely to compromise the safety and health of persons, property or the environment.