The Electromagnetic Compatibility Regulations 1992

• (ii) give the person concerned the opportunity of making representations within a period of 28 days of the notice being given as to why that body should make a favourable decision, and consider any representations which are made by that person within that period.

EC declaration of conformity

EC declaration of conformity where conformity assessment requirements are complied with by reference to a technical construction file

57

• (1) This regulation shall have effect for prescribing the form of an EC declaration of conformity issued in the United Kingdom in respect of relevant apparatus in relation to which the conformity assessment requirements have been complied with pursuant to the technical construction file route to compliance.

• (2) An EC declaration of conformity to which this regulation applies shall—

• (a) be in English;

• (b) give the name and address—

• (i) of the responsible person;

• (ii) where that person is not the manufacturer, of the manufacturer;

• (c) be signed by or on behalf of the manufacturer or his authorised representative and identify that signatory;

• (d) bear the date of issue;

• (e) give particulars of the relevant apparatus to which it relates sufficient to identify it;

• (f) identify the technical construction file relating thereto, and give the name and address of the competent body which issued the technical report or technical certificate, and the date and any number thereof;

• (g) state the numbers and titles of the applicable EMC standards, if any, applied by the manufacturer;

• (h) certify that the apparatus to which it relates conforms with the protection requirements of Council Directive 89/336/EEC on the approximation of the laws of the Member States relating to electromagnetic compatibility.

Final provisions

Interpretation of Part V

58

In this Part—

• “authorised ” and cognate expressions in relation to any description of apparatus shall be construed in accordance with regulation 46(3);

• “minimum criteria ” shall be construed in accordance with regulation 47(2);

• “representative ” shall be construed in accordance with regulation 43(2)(b); and

• “variant ” shall be construed in accordance with regulation 43(2)(c).

PART VI — THE EC TYPE-EXAMINATION ROUTE TO COMPLIANCEFOR RADIOCOMMUNICATION TRANSMISSION APPARATUS

General

Application of Part VI

59

• (1) This Part shall have effect for the purposes of providing for—

• (a) the manner in which the conformity assessment requirements shall be complied with in relation to radiocommunication transmission apparatus pursuant to the EC type-examination route to compliance; and

• (b) United Kingdom notified bodies to exercise functions in relation thereto, and matters incidental to such exercise.

• (2) For the purposes of these Regulations, “radiocommunication transmission apparatus ” is wireless telegraphy apparatus for—

• (a) transmitting; or

• (b) both transmitting and receiving,

other than—

• (i) radio amateur apparatus designed, and intended by the manufacturer, for use exclusively by radio amateurs;

• (ii) apparatus neither designed nor intended by the manufacturer to be used for transmitting in conjunction with other wireless telegraphy apparatus; or

• (iii) apparatus which is dependent for its operation on a magnetic as distinct from an electromagnetic field.

The EC type-examination route to compliance

60

The conformity assessment requirements are complied with in relation to radiocommunication transmission apparatus pursuant to the EC type-examination route to compliance if there is in force an EC type-examination certificate obtained by the responsible person from a notified body in respect of the applicable EM characteristics of the apparatus.

Notified bodies

61

For the purposes of these Regulations, a notified body is a body responsible for issuing EC type-examination certificates pursuant to Article 10.5 of the EMC Directive either for all descriptions of radiocommunication transmission apparatus or for specific descriptions thereof, and which is—

• (a) a United Kingdom notified body pursuant to regulation 62 below; or

• (b) for the time being a notified body of a member State other than the United Kingdom,

having been notified as a notified body by the member State concerned to the Commission and the other member States pursuant to Article 10.6 of the EMC Directive.

United Kingdom notified bodies

Bodies and scope of authority

62

The following shall be United Kingdom notified bodies in relation to the descriptions (“authorised descriptions ”) of radiocommunication transmission apparatus referred to in relation thereto in Schedule 6 hereto:—

• (a) the Secretary of State acting through the Defence Research Agency of the Ministry of Defence (“the DRA ”);

• (b) the Civil Aviation Authority (“the CAA ”);

• (c) the British Approvals Board for Telecommunications (“BABT ”); and

• (d) the Secretary of State acting through the Radiocommunications Agency of the Department of Trade and Industry (“the RA ”).

Power of CAA and BABT to charge fees

63

• (1) Without prejudice to the power of the DRA or the RA to charge fees pursuant to regulations made under section 56 of the Finance Act 1973 and subject to paragraph (2) below, the CAA and BABT may charge applicants for EC type-examination certificates such fees as they may determine.

• (2) The power in paragraph (1) above includes power to require the payment of fees or a reasonable estimate thereof with the application.

• (3) The CAA and BABT shall publish from time to time the scale of fees charged by it, or such information about the basis of calculation thereof as the Secretary of State may direct.

Applications for EC type-examination certificates

64

• (1) It shall be the function of a United Kingdom notified body to determine applications made to it in writing for the issue of EC type-examination certificates from the manufacturer or his authorised representative in respect of authorised descriptions of radiocommunication transmission apparatus.

• (2) Subject to regulation 65, a United Kingdom notified body shall, following receipt of an application in respect of an authorised description of apparatus—

• (a) examine the apparatus and the design thereof;

• (b) subject the apparatus or cause it to be subjected to such tests as the body considers appropriate to determine whether or not the apparatus conforms with the protection requirements in all the circumstances (having regard, without prejudice to the generality of the foregoing, to the actual or usual electromagnetic environment in which the apparatus is to be used), and, where there is a relevant transposed harmonized standard or a recognised national standard and the body considers it appropriate to apply that standard, such tests as may be provided for thereby.

• (3) Following examination and testing pursuant to paragraph (2) above, the United Kingdom notified body shall determine whether or not the apparatus to which the application relates conforms with the protection requirements.

• (4) Where in the opinion of the United Kingdom notified body the apparatus to which an application relates conforms with the protection requirements, it shall issue an EC type-examination certificate in respect thereof.

• (5) Subject to regulation 69 below, where in the opinion of the United Kingdom notified body the apparatus to which the application relates does not conform with the protection requirements, it shall refuse to issue the EC type-examination certificate, giving written reasons for the refusal.

• (6) For the avoidance of doubt, it is hereby declared that an EC type-examination certificate may relate to—

• (a) a single item of apparatus;

• (b) where a number of items are to be produced, a specimen representative of the production envisaged (a “representative ”); or

• (c) a number of items or representatives of each such item or representative being variants of the same basic design.

Limitations on duty to exercise functions

65

• (1) Nothing in these Regulations shall require a United Kingdom notified body to determine a relevant application—

• (a) which is not in English or another language acceptable to that body; or

• (b) where the applicant has not—

• (i) granted the body access to the radiocomunication transmission apparatus to which the application relates or the production facilities for the apparatus (including where applicable, the production envisaged in relation to a representative) to the extent that the body reasonably requests; and

• (ii) made available to the body such information as it may reasonably require to determine the application.

• (2) Nothing in these Regulations shall require a United Kingdom notified body to—

• (a) determine a relevant application; or

• (b) having determined the application, to inform the applicant of the result thereof or, in the case of a successful application, to issue the EC type-examination certificate, unless—

• (i) where the body is the CAA or BABT, the applicant has paid the fees charged thereby pursuant to regulation 63 above;

• (ii) where the body is the DRA or the RA, the applicant has paid any fees chargeable in accordance with regulations made under section 56 of the Finance Act 1973.

Contractors etc.

66

• (1) Subject to paragraphs (2) and (3) below, a United Kingdom notified body may, in exercising its functions—

• (a) arrange for some other person to carry out any test, assessment or inspection on its behalf; or

• (b) require the applicant to satisfy another person with respect to any matter at the applicant’s expense.

• (2) Nothing in paragraph (1) above authorises a United Kingdom notified body to rely on the opinion of another person with regard to whether any radiocommunication transmission apparatus conforms with the protection requirements.

• (3) Nothing in these Regulations shall preclude a person referred to in paragraph (1)(a) or (b) above from charging any fee in respect of any work undertaken by him in pursuance of those sub-paragraphs.

Conditions of EC type-examination certificates

67

• (1) Subject to regulation 69 below and paragraphs (2) and (3) of this regulation, an EC type-examination certificate issued by a United Kingdom notified body may be unconditional or subject to such conditions, which must be complied with if the certificate is to apply, as the body considers appropriate.

• (2) Without prejudice to the generality of paragraph (1) above, such conditions may include—

• (a) a limitation on the electromagnetic environment for which the apparatus may be stated to be suitable; or

• (b) a limitation that the apparatus is only to be installed at a specific site.

• (3) The conditions imposed pursuant to paragraph (1) above may be varied by the United Kingdom notified body which issued the EC type-examination certificate, and a variation under this paragraph may include the imposition of new conditions or the withdrawal of conditions.

Withdrawal of EC type-examination certificates

68

• (1) Subject to regulation 69 below and paragraph (2) of this regulation, the United Kingdom notified body which issued an EC type-examination certificate shall withdraw that certificate if it appears that the apparatus to which it relates does not conform with the protection requirements.

• (2) A withdrawal of an EC type-examination certificate shall be by notice in writing stating the reasons for the withdrawal.

Procedure where United Kingdom notified body is minded to make a decision unfavourable to the applicant

69

Before making an unfavourable decision in respect of an applicant, that is to say—

• (a) refusing to grant an EC type-examination certificate pursuant to regulation 64(5) above;

• (b) the imposition of a condition of an EC type-examination certificate or the making of a restrictive variation of a condition thereof pursuant to regulation 67 above in circumstances where the applicant has not indicated in writing that the apparatus concerned is suitable for use subject to that condition;

• (c) the withdrawal of an EC type-examination certificate pursuant to regulation 68 above,

• the United Kingdom notified body shall— give notice in writing to the applicant, or holder of the EC type-examination certificate concerned, as the case may be (“the person concerned ”), of the reasons why it proposes to make the unfavourable decision; and give the person concerned the opportunity of making representations within a period of 28 days of the notice being given as to why that body should make a favourable decision, and consider any representations which are made by that person within that period.

EC declaration of conformity

EC declaration of conformity for radiocommunication transmission apparatus

70

• (1) This regulation shall have effect for prescribing the form of an EC declaration of conformity issued in the United Kingdom in respect of radiocommunication transmission apparatus.

• (2) An EC declaration of conformity to which this regulation applies shall—

• (a) be in English;

• (b) give the name and address—

• (i) of the responsible person;

• (ii) where that person is not the manufacturer, of the manufacturer;

• (c) be signed by or on behalf of the manufacturer or his authorised representative and identify that signatory;

• (d) bear the date of issue;

• (e) give particulars of the relevant apparatus to which it relates sufficient to identify it;

• (f) identify the EC type-examination certificate relating thereto, and give the name and address of the notified body which issued it, and the date and any number thereof;

• (g) certify that the apparatus to which it relates conforms with the protection requirements of Council Directive 89/336/EEC on the approximation of the laws of the Member States relating to electromagnetic compatibility.

Final provisions

Savings

71

For the avoidance of doubt, it is hereby declared that nothing in this Part shall be construed as dispensing with any requirement—

• (a) of a licence granted under—

• (i) section 1[^f00021] of the 1949 Act to establish and use any station for wireless telegraphy or to instal and use any wireless telegraphy apparatus;

• (ii) section 7 of the 1984 Act to run a telecommunication system within the meaning of that Act;

• (iii) Part I of the 1990 Act to provide television programme services or additional services within the meaning of that Part;

• (iv) Part II of the 1990 Act to provide local delivery services within the meaning of that Part; or

• (v) Part III of the 1990 Act to provide independent radio services within the meaning of that Part;

• (b) that apparatus be approved under section 84 of the 1984 Act, or comply with the requirements of the Telecommunications Terminal Equipment Directive;

• (c) regulations made under section 1 of the 1949; or

• (d) an order made under—

• (i) section 7 of the Wireless Telegraphy Act 1967[^f00022];

• (ii) section 85 or 86 of the 1984 Act.

Interpretation of Part VI

72

In this Part—

• “the 1990 Act ” means the Broadcasting Act 1990[^f00023];

• “authorised description ” shall be construed in accordance with regulation 62 above;

• “examine ” includes, where a UK notified body considers appropriate, the dis-assembly of apparatus; and

• “telecommunication system ” shall be construed in accordance with section 4 of the 1984 Act.

PART VII — ENFORCEMENT

Enforcement authorities and powers

Enforcement authorities

73

• (1) Except in relation to the descriptions of apparatus mentioned in paragraph (3) below, it shall be the duty of the following authorities to enforce these Regulations—

• (a) in Great Britain, weights and measures authorities; and

• (b) in Northern Ireland, the Department of Economic Development.

• (2) Except in relation to the descriptions of apparatus mentioned in paragraph (3) below, the Secretary of State may enforce these Regulations.

• (3) These Regulations may be enforced—

• (a) by the CAA, in relation to wireless telegraphy apparatus of a description listed in paragraph 2 of Schedule 6 hereto; and

• (b) in relation to electricity meters other than those which are wireless telegraphy apparatus —

• (i) in Great Britain, by the Director General of Electricity Supply; and

• (ii) in Northern Ireland, by the Director General of Electricity Supply for Northern Ireland[^f00024].

• (4) Nothing in this regulation shall authorise any enforcement authority to bring proceedings in Scotland for an offence.

• (5) In these Regulations, “enforcement authority ” in relation to any relevant apparatus means any person who is, pursuant to the provisions of this regulation, authorised to act as an enforcement authority in relation to that relevant apparatus.

Test purchases

74

• (1) An enforcement authority shall have power, for the purpose of ascertaining whether any relevant apparatus complies with the requirements of regulation 30 above to make, or to authorise an officer of the authority to make, any purchase of electrical apparatus.

• (2) Where—

• (a) any apparatus purchased under this regulation by or on behalf of any enforcement authority is submitted to a test; and

• (b) the test leads to—

• (i) the bringing of proceedings for an offence under regulation 82, 83 or 85 below in relation to the apparatus or the forfeiture of apparatus of the same description under regulation 94 or 95 below; or

• (ii) the serving of a suspension notice in respect of any apparatus; and

• (c) the authority is requested to do so and it is practicable for the authority to comply with the request,

the authority shall allow the person from whom the apparatus was purchased or any person who is a party to the proceedings or has an interest in any apparatus to which the notice relates to have the apparatus tested.

Powers of search etc.

75

• (1) Subject to regulation 76 below, a duly authorised officer of an enforcement authority may at any reasonable hour and on production, if required, of his credentials exercise any of the powers conferred by the following provisions of this regulation.

• (2) The officer may, for the purpose of ascertaining whether there has been a contravention of any of the requirements of Part III of these Regulations—

• (a) inspect any electrical apparatus and enter any premises other than premises occupied only as a person’s residence; or

• (b) examine any procedure (including any arrangements for carrying out a test) connected with the production of any electrical apparatus.

• (3) If the officer has reasonable grounds for suspecting that there has been a contravention of any of the requirements of Part III of these Regulations, he may for the purpose of ascertaining (by testing or otherwise) whether there has been any such contravention, seize and detain any electrical apparatus.

• (4) The officer may seize and detain—

• (a) any electrical apparatus, any document, record or information which the officer may require production of under regulation 81 below, or any other thing, which he has reasonable grounds for believing may be required—

• (i) as evidence in proceedings for an offence under these Regulations;

• (ii) by a competent authority of a member State other than the United Kingdom for the purposes of the exercise of its functions, or

• (b) any electrical apparatus which he has reasonable grounds for suspecting may be liable to be forfeited under regulation 94 or 95 below.

• (5) The officer may, for the purpose of the exercise of his powers under paragraphs (3) or (4) above to seize any electrical apparatus, any document or record or any other thing—

• (a) require any person having authority to do so to open any container; and

• (b) himself open or break open any such container where a requirement made under paragraph (a) above in relation to the container has not been complied with.

Provisions supplemental to regulation 75

76

• (1) An officer seizing any electrical apparatus, records, documents, information or other thing under regulation 75 above shall inform the person from whom they are seized that such apparatus, records or other thing have been so seized.

• (2) If a justice of the peace—

• (a) is satisfied by any written information on oath that there are reasonable grounds for believing either—

• (i) that any electrical apparatus, documents, records, information or other thing which any officer has power to inspect under regulation 75 above are on any premises (which may be premises occupied only as a person’s residence) and that, if their inspection reveals that the apparatus is relevant apparatus or that the documents, records, information or any other thing relates to relevant apparatus, such inspection is likely to disclose evidence that there has been a contravention of any provision of Part III of these Regulations; or

• (ii) that such a contravention has taken place, is taking place or is about to take place on any premises; and

• (b) is also satisfied by any such information either—

• (i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this paragraph has been given to the occupier; or

• (ii) that an application for admission, or the giving of such a notice, would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await his return,

the justice may by warrant under his hand, which shall continue in force for one month, authorise any officer of an enforcement authority to enter the premises, if need be by force.

• (3) An officer entering any premises by virtue of regulation 75 above or a warrant under paragraph (2) of this regulation may take with him such other persons and such equipment as may appear to him necessary.

• (4) On leaving any premises which a person is authorised to enter by a warrant under paragraph (2) of this regulation, that person shall, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as he found them.

• (5) Where any apparatus seized by an officer under regulation 75 above is submitted to a test, the officer shall inform the persons mentioned in paragraph (1) of this regulation of the result of the test and, if—

• (a) proceedings are brought for an offence in respect of a contravention in relation to any relevant apparatus of any provision of these Regulations or for the forfeiture of any relevant apparatus under regulation 94 or 95 below, or a suspension notice is served in respect of any relevant apparatus; and

• (b) the officer is requested to do so and it is practicable to comply with the request,

the officer shall allow any person who is a party to the proceedings or, as the case may be, has an interest in the relevant apparatus to which the notice relates to have the relevant apparatus tested.

• (6) In the application of this regulation to Scotland, the reference in paragraph (2) above to a justice of the peace shall include a reference to a sheriff and the references to written information on oath shall be construed as references to evidence on oath.

• (7) In the application of this regulation to Northern Ireland, the references in paragraph (2) above to any information on oath shall be construed as references to any complaint on oath.

Appeals against detention of apparatus

77

• (1) Any person having an interest in any apparatus, document, record, information or other thing which is for the time being detained under any provision of this Part by an enforcement authority or by an officer of such an authority may apply for an order requiring the apparatus to be released to him or to another person.

• (2) An application under this regulation may be made—

• (a) to any magistrates' court in which proceedings have been brought in England and Wales and Northern Ireland—

• (i) for an offence under regulation 82, 83 or 85 below; or

• (ii) for the forfeiture of the apparatus under regulation 94 below;

• (b) where no such proceedings have been so brought, by way of complaint to a magistrates' court; or

• (c) in Scotland, by summary application to the sheriff.

• (3) On an application under this regulation to a magistrates' court or to the sheriff, an order requiring apparatus to be released shall be made only if the court or sheriff is satisfied—

• (a) that proceedings—

• (i) for an offence under regulation 82, 83 or 85 below in respect of the apparatus; or

• (ii) for the forfeiture of the apparatus under regulation 94 or 95 below,

have not been brought or, having been brought, have been concluded without the apparatus being forfeited; and

• (b) where no such proceedings have been brought, that more than six months have elapsed since the apparatus was seized.

• (4) Any person aggrieved by an order made under this regulation by a magistrates' court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision—

• (a) in England and Wales, to the Crown Court;

• (b) in Northern Ireland, to the county court;

and an order so made may contain such provision as appears to the court appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980[^f00025] or article 146 of the Magistrates' Courts (Northern Ireland) Order 1981[^f00026] (statement of case)).

Prohibition notices

78

• (1) The Secretary of State may serve on —

• (a) the manufacturer or supplier of any relevant apparatus which the Secretary of State considers does not comply with the protection requirements or the requirements of regulation 30 above as the case may be; or

• (b) the user of relevant apparatus which the Secretary of State considers did not so comply at the time when it was supplied or taken into service as the case may be,

a notice (“a prohibition notice ”) prohibiting that manufacturer, supplier or user as the case may be from manufacturing, supplying, taking into service or using that apparatus as the case may be, except with the consent of the Secretary of State.

• (2) Schedule 7 hereto shall have effect with respect to prohibition notices.

• (3) A consent given by the Secretary of State for the purposes of a prohibition notice may impose such conditions on the doing of anything for which the consent is required as the Secretary of State considers appropriate.

Suspension notices

79

• (1) Where an enforcement authority has reasonable grounds for suspecting that regulation 28, 29 or 34(4) above has been, is being or is likely to be contravened, the authority may serve a notice (“a suspension notice ”)—

• (a) in relation to relevant apparatus or electrical apparatus other than relevant apparatus, prohibiting the manufacturer, supplier or user on whom it is served, for such period ending not more than six months after the date of the notice as is specified therein, from manufacturing, supplying, taking into service or using the apparatus; or

• (b) in relation to an excluded installation, where the enforcement authority is unable to establish upon reasonable inquiry which item of relevant apparatus or system incorporated therein the suspected contravention relates to, for such period ending not more than six months after the date of the notice as is specified therein, from taking into service or using the excluded installation,

without the consent of that authority.

• (2) A suspension notice served by an enforcement authority in respect of any apparatus or excluded installation shall—

• (a) describe the apparatus or installation to which it relates in a manner sufficient to identify it;

• (b) set out the grounds on which the authority suspects that regulation 28, 29 or 34(4) above has been, is being or is likely to be contravened, as the case may be; and

• (c) state that, and the manner in which, the person on whom the notice is served may appeal against the notice under regulation 80 below.

• (3) A consent given by an enforcement authority for the purposes of a suspension notice may impose such conditions on the doing of anything for which the consent is required as that authority considers appropriate.

• (4) A suspension notice may require the person on whom it is served to keep the enforcement authority which served the notice informed of the whereabouts throughout the period during which the notice has effect of any of the apparatus, or the excluded installation, in which that person has an interest.

• (5) Where a suspension notice has been served on any person in respect of any apparatus or excluded installation, no further such notice shall be served on that person in respect of the same apparatus unless—

• (a) proceedings against that person for an offence under regulation 82, 83 or 85 below; or

• (b) proceedings for the forfeiture of the apparatus under regulation 94 or 95 below,

are pending at the end of the period specified in the first-mentioned notice.

Appeals against suspension notices

80

• (1) Any person having an interest in any apparatus or excluded installation in respect of which a suspension notice is for the time being in force may apply for an order setting aside the notice.

• (2) An application under this regulation may be made—

• (a) in England and Wales or Northern Ireland—

• (i) to any magistrates' court in which proceedings have been brought—

• (aa) for an offence under regulation 82, 83 or 85 below; or

• (bb) for the forfeiture of the apparatus under regulation 94 below; or

• (ii) where no such proceedings have been so brought, by way of complaint to a magistrates' court; or

• (b) in Scotland, by summary application to the sheriff.

• (3) On an application under this regulation to a magistrates' court in England and Wales or Northern Ireland the court shall make an order setting aside the suspension notice only if the court is satisfied that there has been no contravention in relation to the apparatus, or any item of relevant apparatus or system included in the excluded installation, of regulation 28, 29 or 34(4) above as the case may be.

• (4) On an application under this regulation to the sheriff he shall make an order setting aside the suspension notice only if he is satisfied that at the date of making the order—

• (a) proceedings for an offence under regulation 82, 83 or 85 below; or

• (b) proceedings for the forfeiture of the apparatus under regulation 95 below,

have not been brought or, having been brought, have been concluded.

• (5) Any person aggrieved by an order made under this regulation by a magistrates' court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision—

• (a) in England and Wales, to the Crown Court;

• (b) in Northern Ireland, to the county court;

and an order so made may contain such provision as appears to the court appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980 or article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)).

Power to require production of documents and information etc.

81

An officer of an enforcement authority may, for the purposes of exercising his functions under this Part, require—

• (a) any person who is required by regulation 35 above to retain an EC declaration of conformity, technical construction file or EC type-examination certificate, during the period in which that person is required to retain that document, to produce such document;

• (b) any person who is in possession of an EC declaration of conformity, technical construction file or EC type-examination certificate, or of a copy of such document, at any time to produce it;

• (c) a responsible person, or a manufacturer, importer, supplier or user of electrical apparatus to produce such documents or records relating to such apparatus as are in his possession or under his control; or

• (d) a responsible person, or a manufacturer, importer, supplier or user of any electrical apparatus, to give him such information as he may reasonably require,

and such officer may inspect any thing which he may require to be produced under this regulation, and take a copy thereof or of any part thereof.

Offences

Supplying or taking into service apparatus in contravention of regulation 28 or 29

82

Any person who supplies or takes into service relevant apparatus in contravention of regulation 28 or 29 above shall be guilty of an offence.

Contravention of prohibition notice or suspension notice

83

Any person who contravenes a prohibition notice or a suspension notice shall be guilty of an offence.

False or misleading information

84

Any person who, in giving any information which he is required to give under regulation 81(c) or (d) above—

• (a) makes any statement which he knows is false or misleading in a material particular; or

• (b) recklessly makes any statement which is false or misleading in a material particular,

shall be guilty of an offence.

Misuse of the CE mark etc.

85

• (1) Any person who affixes the CE mark for the purposes of the EMC Directive, or an inscription liable to be confused therewith, in relation to—

• (a) any relevant apparatus in contravention of regulation 33(5) above; or

• (b) any electrical apparatus other than relevant apparatus in contravention of regulation 33(6) above,

shall be guilty of an offence.

• (2) Any person who issues an EC declaration of conformity in relation to—

• (a) any relevant apparatus in contravention of regulation 34(3) above; or

• (b) any electrical apparatus in contravention of regulation 34(4) above,

shall be guilty of an offence.

Obstruction etc of officers of enforcement authorities etc.

86

• (1) Any person who—

• (a) intentionally obstructs any officer of an enforcement authority who is acting in pursuance of any provision of this Part;

• (b) intentionally fails or refuses to comply with any requirement made of him by any officer of an enforcement authority under any provision of this Part;

• (c) without reasonable cause fails or refuses to give any officer of an enforcement authority who is so acting any other assistance which the officer may reasonably require of him for the purposes of the exercise of the officer’s functions under any provision of this Part; or

• (d) fails to comply with a court order under regulation 93 below,

shall be guilty of an offence.

• (2) Any person who falsely pretends to be an officer of an enforcement authority shall be guilty of an offence.

Failure to retain documentation

87

Any person who contravenes regulation 35 above shall be guilty of an offence.

Defence of due diligence

88

• (1) Subject to the following provisions of this regulation, in proceedings against any person for an offence under regulation 82 or 85 above it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence.

• (2) Where in any proceedings against any person for such an offence the defence provided by paragraph (1) above involves an allegation that the commission of the offence was due—

• (a) to the act or default of another; or

• (b) to reliance on information given by another,

that person shall not, without the leave of the court, be entitled to rely on the defence unless, not less than seven clear days before the hearing of the proceedings (or, in Scotland the trial diet), he has served a notice under paragraph (3) below on the person bringing the proceedings.

• (3) A notice under this paragraph shall give such information identifying or assisting in the identification of the person who committed the act or default or gave the information as is in the possession of the person serving the notice at the time he serves it.

• (4) It is hereby declared that a person shall not be entitled to rely on the defence provided by paragraph (1) above by reason of his reliance on information supplied by another, unless he shows that it was reasonable in all the circumstances for him to have relied on the information, having regard in particular—

• (a) to the steps which he took, and those which might reasonably have been taken, for the purpose of verifying the information; and

• (b) to whether he had any reason to disbelieve the information.

Liability of persons other than the principal offender

89

• (1) Where the commission by any person of an offence under any of regulations 82 to 87 above is due to the act or default committed by some other person in the course of any business of his, the other person shall be guilty of the offence and may be proceeded against and punished by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

• (2) Where a body corporate is guilty of an offence under these Regulations (including where it is so guilty by virtue of paragraph (1) above) in respect of any act or default which is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

• (3) Where the affairs of a body corporate are managed by its members, paragraph (2) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

• (4) In this regulation, references to a “body corporate ” include references to a partnership in Scotland and, in relation to such partnership, any reference to a director, manager, secretary of other similar officer of a body corporate is a reference to a partner.

Extension of time for bringing summary proceedings

90

Notwithstanding section 127 of the Magistrates' Courts Act 1980 and section 331 of the Criminal Procedure (Scotland) Act 1975[^f00027], proceedings for an offence under regulations 82 to 87 above may be commenced at any time within three years from the date of the offence, or one year from the date on which there comes to the knowledge of the prosecutor evidence sufficient to justify a prosecution for that offence, whichever is the earlier; and for the purposes of this regulation—

• (a) a certificate of the prosecutor stating that such evidence came to his knowledge on a specified date shall be conclusive evidence of that fact; and

• (b) a document purporting to be such a certificate and to be signed by or on behalf of the prosecutor in question shall be presumed to be such a certificate unless the contrary is proved.

Inference of condition of apparatus at time of supply or taking into service

91

It is hereby declared that, in any proceedings in which it is in issue whether any relevant apparatus complied with the protection requirements or the requirements of regulation 30 above as the case may be at the time when it was supplied or taken into service as the case may be, a court may infer that such apparatus did not so comply at that time if—

• (a) it is proved that it does not so comply or did not so comply at a time subsequent to its having been supplied or taken into service; and

• (b) having regard to all the circumstances of the case, it appears to the court that the failure of the apparatus to comply at the time referred to in sub-paragraph (a) above is not attributable to any cause arising subsequent to its having been supplied or taken into service.

Powers of the court

Penalties

92

• (1) A person guilty of an offence under regulation 83, 84 or 86(2) above shall be liable on summary conviction—

• (a) to imprisonment for a term not exceeding three months; or

• (b) to a fine not exceeding level 5 on the standard scale,

or to both.

• (2) A person guilty of an offence under regulation 82, 85, 86(1) or 87 above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Power of the court to require matter to be remedied

93

• (1) Where a person is convicted of an offence under regulation 82 or 85 above in respect of any matters which appear to the court to be matters which it is in his power to remedy, the court may, in addition to or instead of imposing any punishment, order him, within such time as may be fixed by the order, to take such steps as may be specified in the order for remedying the said matters.

• (2) The time fixed by an order under paragraph (1) above may be extended or further extended by order of the court on an application made before the end of that time as originally fixed or as extended under this paragraph, as the case may be.

• (3) Where a person is ordered under paragraph (1) above to remedy any matters, that person shall not be guilty of an offence under regulation 82 or 85 above as the case may be in respect of those matters in so far as they continue during the time fixed by the order or any further time allowed under paragraph (2) above.

Forfeiture: England and Wales and Northern Ireland

94

• (1) An enforcement authority in England and Wales or Northern Ireland may apply under this regulation for an order for the forfeiture of any—

• (a) relevant apparatus on the grounds that there has been a contravention in relation thereto of regulation 28 or 29 above; or

• (b) electrical apparatus other than relevant apparatus on the grounds that the CE mark is affixed in relation to it in contravention of regulation 33(6) above.

• (2) An application under this regulation may be made—

• (a) where proceedings have been brought in a magistrates' court in respect of an offence in relation to some or all of the apparatus under regulation 82, 83 or 85, to that court;

• (b) where an application with respect to some or all of the apparatus has been made to a magistrates' court under regulation 77 or 80 above, to that court; and

• (c) where no application for the forfeiture of the apparatus has been made under sub-paragraph (a) or (b) above, by way of complaint to a magistrates' court.

• (3) On an application under this regulation the court shall make an order for the forfeiture of the apparatus only if it is satisfied that there has been a contravention in relation thereto of regulation 28, 29 or 33(6) above as the case may be.

• (4) For the avoidance of doubt it is hereby declared that a court may infer for the purposes of this regulation that there has been a contravention in relation to any apparatus of regulation 28, 29 or 33(6) above as the case may be if it is satisfied that that provision has been contravened in relation to apparatus which is representative of that apparatus (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

• (5) Any person aggrieved by an order made under this regulation by a magistrates' court, or by a decision of such court not to make such an order, may appeal against that order or decision —

• (a) in England and Wales, to the Crown Court;

• (b) in Northern Ireland, to the county court,

and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of an order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980 or article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)).

• (6) Subject to paragraph (7) below, where any apparatus is forfeited under this regulation it shall be destroyed in accordance with such directions as the court may give.

• (7) On making an order under this regulation a magistrates' court may, if it considers it appropriate to do so, direct that the apparatus to which the order relates shall (instead of being destroyed) be released, to such person as the court may specify, on condition that that person—

• (a) does not supply the apparatus to any person otherwise than—

• (i) to a person who carries on a business of buying apparatus of the same description as the first mentioned apparatus and repairing or reconditioning it; or

• (ii) as scrap (that is to say, for the value of materials included in the apparatus rather than for the value of the apparatus itself); and

• (b) complies with any order to pay costs or expenses (including any order under regulation 96 below) which has been made against that person in the proceedings for the order for forfeiture.

Forfeiture: Scotland

95

• (1) In Scotland an order for forfeiture of any—

• (a) relevant apparatus in relation to which there has been a contravention of regulation 28 or 29 above as the case may be; or

• (b) electrical apparatus other than relevant apparatus on the grounds that the EC mark is affixed in relation to it in contravention of regulation 33(6) above,

may be made by the sheriff—

• (i) on an application by the procurator-fiscal made in the manner specified in section 310 of the Criminal Procedure (Scotland) Act 1975[^f00028]; or

• (ii) where a person is convicted of any offence in respect of any such contravention, in addition to any other penalty which the sheriff may impose.

• (2) The procurator-fiscal making an application under paragraph (1)(i) above shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the apparatus to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the apparatus should not be forfeited.

• (3) Service under paragraph (2) above shall be carried out, and such service may be proved, in the manner specified for citation of a n accused in summary proceedings under the Criminal Procedure (Scotland) Act 1975.

• (4) Any person upon whom a notice is served under paragraph (2) above and any other person claiming to be the owner of, or otherwise to have an interest in, the apparatus to which an application under this regulation relates shall be entitled to appear at the hearing of the application to show cause why the apparatus should not be forfeited.

• (5) The sheriff shall not make an order following an application under paragraph (1)(i) above—

• (a) if any person on whom notice is served under paragraph (2) above does not appear, unless service of the notice on that person is proved; or

• (b) if no notice under paragraph (2) above has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve notice on any person.

• (6) The sheriff shall make an order under this regulation only if he is satisfied that there has been a contravention in relation to the apparatus of regulation 28, 29 or 33(6) above as the case may be.

• (7) For the avoidance of doubt it is hereby declared that the sheriff may infer for the purposes of this regulation that there has been a contravention in relation to any apparatus of regulation 28, 29 or 33(6) above if he is satisfied that that provision has been contravened in relation to apparatus which is representative of that apparatus (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

• (8) Where an order for the forfeiture of any apparatus is made following an application by the procurator-fiscal under paragraph (1)(i) above, any person who appeared, or was entitled to appear, to show cause why it should not be forfeited may, within twenty- one days of the making of the order, appeal to the High Court by Bill of Suspension on the ground of an alleged miscarriage of justice; and section 452(4)(a) to (e) of the Criminal Procedure (Scotland) Act 1975[^f00029] shall apply to an appeal under this paragraph as it applies to a stated case under Part II of that Act.

• (9) An order following an application under paragraph (1)(i) above shall not take effect—

• (a) until the end of the period of twenty-one days beginning with the day after the day on which the order is made; or

• (b) if an appeal is made under paragraph (8) above within that period, until the appeal is determined or abandoned.

• (10) An order under paragraph (1)(ii) shall not take effect—

• (a) until the end of the period within which an appeal against the order could be brought under the Criminal Procedure (Scotland) Act 1975; or

• (b) if an appeal is made within that period, until the appeal is determined or abandoned.

• (11) Subject to paragraph (12) below, apparatus forfeited under this regulation shall be destroyed in accordance with such directions as the sheriff may give.

• (12) If he thinks fit, the sheriff may direct the apparatus to be (instead of being destroyed) released to such person as he may specify, on condition that that person does not supply it to any person otherwise than—

• (a) to a person who carries on a business of buying apparatus of the same description as the first-mentioned apparatus and repairing or reconditioning it; or

• (b) as scrap (that is to say, for the value of materials included in the apparatus rather than for the value of the apparatus itself).

Recovery of expenses of enforcement

96

• (1) This regulation applies where a court—

• (a) convicts a person of an offence under regulation 82, 83 or 85 above; or

• (b) makes an order under regulation 94 or 95 above for the forfeiture of any apparatus.

• (2) The court may (in addition to any other order it may make as to costs or expenses) order the person convicted or, as the case may be, any person having an interest in the apparatus the subject of the order for forfeiture, to reimburse an enforcement authority for any expenditure which has been or may be incurred by that authority—

• (a) in investigating the offence, and, without prejudice to the generality of the foregoing, in having the apparatus tested;

• (b) in connection with any seizure or detention of the apparatus by or on behalf of the authority; or

• (c) in connection with any compliance by that authority with directions given by the court for the purposes of any order for the forfeiture of the apparatus.

PART VIII — MISCELLANEOUS AND SUPPLEMENTAL

Restrictions on disclosure of information

97

• (1) Subject to the following provisions of this regulation, a person shall be guilty of an offence if he discloses any information—

• (a) which was obtained by him in consequence of the exercise by any person of any power conferred by Part VII of these Regulations; or

• (b) which consists in a secret manufacturing process or a trade secret and was obtained by him in consequence of the inclusion of the information—

• (i) in written or oral representations made for the purposes of Schedule 7 hereto; or

• (ii) in a statement of a witness in connection with any such oral representations.

• (2) Paragraph (1) above shall not apply to a disclosure of information if the information is publicised information or the disclosure is made—

• (a) for the purpose of facilitating the exercise of a relevant person’s functions under these Regulations;

• (b) for the purpose of facilitating the exercise of a relevant person’s enforcement or regulatory functions under any enactment (whether passed or made before or after the making of these Regulations);

• (c) for the purposes of compliance with a Community obligation; or

• (d) in connection with the investigation of any criminal offence or for the purposes of any civil or criminal proceedings.

• (3) In paragraph (2)(b) above the reference to a person’s functions shall include a reference to the function of making, amending or revoking any regulations or order.

• (4) A person guilty of an offence under this regulation shall be liable—

• (a) on summary conviction, to a fine not exceeding level 5 on the standard scale; or

• (b) on conviction on indictment, to—

• (i) imprisonment for a term not exceeding two years; or

• (ii) a fine,

or to both.

• (5) In this regulation—

• “publicised information ” means any information which has been disclosed in any civil or criminal proceedings; and

• “relevant person ” means— a Minister of the Crown, Government department or Northern Ireland department; an enforcement authority; or any other person on whom enforcement or regulatory functions are conferred by or under any enactment.

Service of documents etc

98

• (1) Any document required or authorised by these Regulations to be served on a person may be so served—

• (a) by delivering it to him or by leaving it at his proper address or by sending it by post to him at that address;

• (b) if the person is a body corporate, by serving it in accordance with sub-paragraph (a) above on the secretary or clerk of that body; or

• (c) if the person is a partnership, by serving it in accordance with that sub-paragraph on a partner or on a person having control or management of the partnership business.

• (2) For the purposes of paragraph (1) above, and for the purposes of section 7 of the Interpretation Act 1978[^f00030] (which relates to the service of documents by post) in its application to that paragraph, the proper address of any person on whom a document is to be served by virtue of these Regulations shall be his last known address except that—

• (a) in the case of service on a body corporate or its secretary or clerk, it shall be the address of the registered or principal office of the body corporate;

• (b) in the case of service on a partnership or a partner or a person having the control or management of a partnership business, it shall be the principal office of the partnership;

and for the purposes of this paragraph the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom is its principal office within the United Kingdom.

Duty of enforcement authority to inform the Secretary of State of action taken

99

An enforcement authority shall, where action has been taken by it to prohibit or restrict the supply or taking into service (whether under these Regulations or otherwise) of any relevant apparatus, forthwith inform the Secretary of State of the action taken, and the reasons for it, with a view to this information being passed by him to the Commission.

Savings for certain privileges

100

• (1) Nothing in these Regulations shall be taken as requiring any person to produce any documents or records if he would be entitled to refuse to produce those documents or records in any proceedings in any court on the grounds that they are the subject of legal professional privilege or, in Scotland, that they contain a confidential communication made by or to an advocate or solicitor in that capacity, or as authorising any person to take possession of any documents or records which are in the possession of a person who would be so entitled.

• (2) Nothing in these Regulations shall be construed as requiring a person to answer any question or give any information if to do so would incriminate that person or that person’s spouse.

Savings for action taken under other enactments

101

Nothing in these Regulations shall be construed as preventing the taking of any action in respect of any relevant apparatus under the provisions of any other enactment.

SCHEDULE 1 — REGULATIONS UNDER SECTION 10 OF THE WIRELESS TELEGRAPHY ACT 1949

The regulations made under section 10 of the Wireless Telegraphy Act 1949 which—

• (a) are disapplied by regulation 2(2) of these Regulations to the extent that they impose electromagnetic compatibility requirements (other than requirements concerning radio frequency spectrum planning or the implementation of Community obligations) which must be complied with if relevant apparatus is to be supplied, used or taken into service; and

• (b) where applicable, must be complied with if the transitional exemption in regulation 11(b) of these Regulations from the application hereof is to apply,

are as follows:—

1

The Wireless Telegraphy (Control of Interference from Ignition Apparatus)Regulations 1952[^f00031];

2

The Wireless Telegraphy (Control of Interference from Electro Medical Apparatus) Regulations 1963[^f00032];

3

The Wireless Telegraphy (Control of Interference from Radio Frequency Heating Apparatus) Regulations 1971[^f00033];

4

The Wireless Telegraphy (Control of Interference from Household Appliances, Portable Tools, etc) Regulations 1978[^f00034];

5

The Wireless Telegraphy (Control of Interference from Fluorescent Lighting Apparatus) Regulations 1978[^f00035]; and

6

The Wireless Telegraphy (Control of Interference from Citizens' Band Radio Apparatus) Regulations 1982[^f00036].

SCHEDULE 2 — PHENOMENA AND EFFECTS WHICH MAY BE REGARDED AS ELECTROMAGNETIC DISTURBANCE

Without prejudice to the generality of regulation 4(1), and in addition to the phenomena regarded as electromagnetic disturbance pursuant to regulation 4(2) (being phenomena expressly stated to be such in Article 1.2 of the EMC Directive), the following phenomena and effects may be regarded as electromagnetic disturbance—

1 Conducted low-frequency phenomena harmonics, interharmonics; signalling voltages; voltage fluctuations; voltage dips and interruptions; voltage unbalance; power—frequency variations; induced low—frequency voltages; DC in AC networks; and DC ground circuits;

2 Radiated low-frequency phenomena— magnetic fields; and electric fields;

3 Conducted high-frequency phenomena— induced continuous wave (CW) voltages or currents; unidirectional transients; and oscillatory transients;

4 Radiated high frequency phenomena— magnetic fields; electric fields; electromagnetic fields; continuous waves; and transients; and

5 Electrostatic discharge phenomena (ESD).

SCHEDULE 3 — DESCRIPTIONS OF APPARATUS THE OPERATION OF WHICH MUST NOT BE HINDERED BY RELEVANT APPARATUS

The descriptions of apparatus (being descriptions listed in the illustrative list of the principal protection requirements in Annex III of the EMC Directive) the operation of which must not be hindered by relevant apparatus where the first mentioned apparatus is constructed in such a way that it has an adequate level of immunity in its usual electromagnetic environment so as to allow its unhindered operation taking into account the levels of electromagnetic disturbance generated by relevant apparatus complying with applicable EMC standards is as follows:—

1 domestic radio and television receivers;

2 industrial manufacturing equipment;

3 mobile radio equipment;

4 mobile radio and commercial radiotelephone equipment;

5 medical and scientific apparatus;

6 information technology equipment;

7 domestic appliances and household electronic equipment;

8 aeronautical and marine radio apparatus;

9 subject to regulation 8, educational electronic equipment;

10 telecommunications networks and apparatus;

11 radio and television broadcast transmitters; and

12 lights and fluorescent lamps.

SCHEDULE 4 — THE CE MARK

In the EC mark, the symbol “CE ” shall be set out in the form shown below and the figures of the year in which the mark was affixed.

—This mark should, where appropriate, be accompanied by the distinctive letters used by the notified body issuing the EC-type examination certificate.

SCHEDULE 5 — MINIMUM CRITERIA FOR THE ASSESSMENT OF UNITED KINGDOM COMPETENT BODIES

The criteria (being the criteria for the assessment of the bodies to be notified listed in Annex II of the EMC Directive and the criteria which competent bodies are required by Article 1.5 of that Directive to meet) which a person is required to meet to be eligible for appointment as a United Kingdom competent body are as follows—

1 availability of personnel and of the necessary means and equipment;

2 technical competence and professional integrity of personnel;

3 independence, in carrying out the tests, preparing the reports, issuing the certificates and performing the verification function provided for in the EMC Directive, of staff and technical personnel in relation to all circles, groups or persons directly or indirectly concerned with the product in question;

4 maintenance of professional secrecy by personnel; and

5 possession of civil liability insurance unless such liability is covered by the government of the United Kingdom.

SCHEDULE 6 — DESCRIPTIONS OF RADIOCOMMUNICATION TRANSMISSION APPARATUS FOR WHICH UNITED KINGDOM NOTIFIED BODIES ARE AUTHORISED AND OF WIRELESS TELEGRAPHY APPARATUS FOR WHICH THE CAA IS THE ENFORCEMENT AUTHORITY

The descriptions of apparatus are as follows:—

1 the DRA is authorised (as a United Kingdom notified body) in relation to maritime radiodetermination, identification and position reporting apparatus of the following descriptions— radar systems harbour, port and coastal; ship-mounted; radar beacons (Racons); and Search and Rescue Transponders (SARTS); and non-radar systems hyperbolic navigation— Pulse 8; Decca Navigator; Omega; Loran; Satellite navigation; differential systems; and position reporting systems; and NDB (Non-directional Beacons); and emergency position indicating Radio Beacons.

2 the CAA is authorised (as a United Kingdom notified body and as an enforcement authority) in relation to aeronautical apparatus of the following descriptions— aeronautical mobile— associated ground communications; EPIRB/ELT (Emergency Position Indicating Radio Beacon/Emergency Locating Transmitter); ground and airborne equipment for primary and secondary radar for— the CAA; the Ministry of Defence; and private airfield operators; general communications— ground/air; ground/ground; and air/air; and aeronautical earth station equipment; radio navigation— radio altimeters; ILS (Instrument Landing System); and— aeronautical radiobeacons; satellite aeronautical mobile radio— EPIRB/ELT; and voice, medium speed data and low speed data in each case via INMARSAT (satellite operated by the International Maritime Satellite Organisation); aeronautical radionavigation— ILS/MLS (Microwave Landing System); ATC (Air Traffic Control) marker beacons for aircraft; radionavigation satellite equipment on board aircraft; hyperbolic navigation aids; NDB; VOR (VHF Omnidirectional Range); TACAN/DME (Tactical Air Navigation/Distance Measuring Equipment); and satellite navigation systems— ADS (Automatic Dependent Surveillance); and CIS (Co-operative Independent Surveillance); and radiolocation and radiodetermination— radar— primary; OTHR (Over the Horizon Radar); secondary; ground; and airborne; and

3 BABT is authorised (as a United Kingdom notified body) in respect of radiocommunication transmission apparatus which is telecommunications terminal equipment;

4 the RA is authorised (as a United Kingdom notified body) in relation to every description of radiocommunication transmission apparatus not provided for in paragraphs 1 to 3 above.

SCHEDULE 7 — PROHIBITION NOTICES

1

A prohibition notice in respect of any relevant apparatus shall—

• (a) state that the Secretary of State considers that—

• (i) where the notice is served on a manufacturer or supplier, the relevant apparatus does not comply with the protection requirements or the requirements of regulation 30 as the case may be; or

• (ii) where the notice is served on a user, the relevant apparatus did not so comply at the time when it was supplied;

• (b) set out the reasons why the Secretary of State so considers;

• (c) specify the day on which the notice is to come into force: and

• (d) state that the manufacturer, supplier or user as the case may be may at any time make representations in writing to the Secretary of State for the purpose of establishing that that apparatus so complies or did so comply, as the case may require.

2

• (1) If representations in writing about a prohibition notice are made by the manufacturer, supplier or user to the Secretary of State, it shall be the duty of the Secretary of State to consider whether to revoke the notice and—

• (a) if he decides to revoke it, to do so;

• (b) in any other case, to appoint a person to consider those representations, any further representations made (whether in writing or orally) by the notified person about the notice and the statements of any witnesses examined under this Schedule.

• (2) Where the Secretary of State has appointed a person to consider representations about a prohibition notice, he shall serve a notification on the notified person which—

• (a) states that the notified person may make oral representations to the appointed person for the purpose of establishing that the relevant apparatus to which the notice relates complies or did comply as the case may require with the protection requirements or regulation 30 as the case may be; and

• (b) specifies the place and time at which the oral representations may be made.

• (3) The time specified in a notification served under sub-paragraph (2) above shall not be before the end of the period of twenty-one days beginning with the day on which the notification is served, unless the notified person otherwise agrees.

• (4) A person on whom a notification has been served under sub-paragraph (2) above or his representative may, at the place and time specified in the notification—

• (a) make oral representations to the appointed person for the purpose of establishing that the apparatus in question complies or did so comply as the case may require; and

• (b) call and examine witnesses in connection with the representations.

3

• (1) Where representations in writing about a prohibition notice are made by the notified person to the Secretary of State at any time after a person has been appointed to consider representations about that notice, then, whether or not the appointed person has made a report to the Secretary of State, the following provisions of this paragraph shall apply instead of paragraph 2 above.

• (2) The Secretary of State shall, before the end of the period of one month beginning with the day on which he receives the representations, serve a notification on the notified person which states—

• (a) that the Secretary of State has decided to revoke the notice, has decided to vary it or, as the case may be, has decided neither to revoke nor to vary it: or

• (b) that, a person having been appointed to consider representations about the notice, the notified person may, at a place and time specified in the notification, make oral representations to the appointed person for the purpose of establishing that the apparatus to which the notice relates complies or did so comply as the case may require with the protection requirements or regulation 30 as the case may be.

• (3) The time specified in a notification served for the purposes of sub-paragraph (2)(b) above shall not be before the end of the period of twenty-one days beginning with the day on which the notification is served, unless the notified person otherwise agrees or the time is the time already specified for the purposes of paragraph 2(2)(b) above.

• (4) A person on whom a notification has been served for the purposes of sub-paragraph (2)(b) above or his representative may, at the place and time specified in the notification—

• (a) make oral representations to the appointed person for the purpose of establishing that the apparatus in question complies or did so comply as the case may require; and

• (b) call and examine witnesses in connection with the representations.

4

• (1) Where a person is appointed to consider representations about a prohibition notice, it shall be his duty to consider—

• (a) any written representations made by the notified person about the notice, other than those in respect of which a notification is served under paragraph 3(2)(a) above;

• (b) any oral representations made under paragraph 2(4) or 3(4) above; and

• (c) any statements made by witnesses in connection with the oral representations;

and, after considering any matters under this paragraph, to make a report (including recommendations) to the Secretary of State about the matters considered by him and the notice.

• (2) It shall be the duty of the Secretary of State to consider any report made to him under sub-paragraph (1) above and, after considering the report, to inform the notified person of his decision with respect to the prohibition notice to which the report relates.

5

• (1) The Secretary of State may revoke or vary a prohibition notice by serving on the notified person a notification stating that the notice is revoked or, as the case may be, is varied as specified in the notification.

• (2) The Secretary of State shall not vary a prohibition notice so as to make the effect of the notice more restrictive for the notified person.

• (3) The service of a notification under sub-paragraph (1) above shall be sufficient to satisfy the requirement of paragraph 4(2) above that the notified person shall be informed of the Secretary of State’s decision.

6

• (1) Where in a notification served on any person under this Schedule the Secretary of State has appointed a time for the making of oral representations or the examination of witnesses, he may, by giving that person such notification as the Secretary of State considers appropriate, change that time to a later time or appoint further times at which further representations may be made or the examination of witnesses may be continued; and paragraphs 2(4) and 3(4) above shall have effect accordingly.

• (2) For the purposes of this Schedule the Secretary of State may appoint a person (instead of the appointed person) to consider any representations or statements, if the person originally appointed, or last appointed under this sub-paragraph, to consider those representations or statements has died or appears to the Secretary of State to be otherwise unable to act.

7

In this Schedule—