The Gas Appliances (Enforcement) and Miscellaneous Amendments Regulations 2018

Made: 20th March 2018

Laid before Parliament: 21st March 2018

Coming into force: 21st April 2018

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 (“the 1972 Act”) in relation to measures relating to safety as regards appliances burning gaseous fuels.

These Regulations make provision for a purpose mentioned in section 2(2) of the 1972 Act and it appears to the Secretary of State that it is expedient for certain references to provisions of EU instruments to be construed as references to those provisions as amended from time to time.

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the 1972 Act.

PART 1 — Preliminary

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Gas Appliances (Enforcement) and Miscellaneous Amendments Regulations 2018 and come into force on 21st April 2018.

• (2) In these Regulations—

• “the 1974 Act” means the Health and Safety at Work etc. Act 1974 ;

• “the 1978 Order” means the Health and Safety at Work (Northern Ireland) Order 1978 ;

• “the 1987 Act” means the Consumer Protection Act 1987 ;

• “the 1995 Regulations” means the Gas Appliances (Safety) Regulations 1995 ;

• “district council” means a district council within the meaning of the Local Government Act (Northern Ireland) 1972 ;

• “EU Regulation 2016/426” means Regulation (EU) 2016/426 of the European Parliament and of the Council on appliances burning gaseous fuels, repealing Council Directive 2009/142/EC , as amended from time to time;

• Regulation 2016/426 (pre-exit)” means Regulation (EU) 2016/426 of the European Parliament and of the Council on appliances burning gaseous fuels and repealing Directive 2009/142/EC as it had effect immediately before exit day;

• “RAMS” means Regulation (EC) 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 , as amended from time to time;

• “risk” means a risk which may result in harm to the health or safety of persons, domestic animals or property, if an appliance or fitting is used in a normal and predictable manner; and

• “weights and measures authority” means a local weights and measures authority within the meaning set out in section 69 of the Weights and Measures Act 1985 .

• (3) In these Regulations (unless otherwise stated) a reference to—

• (a) a numbered regulation, paragraph or Schedule is a reference to the regulation, paragraph or Schedule as numbered in these Regulations unless otherwise stated;

• (b) an Article, paragraph of an Article , Chapter or Annex is a reference to the Article, paragraph of an Article , Chapter or Annex as numbered in EU Regulation 2016/426;

• (c) a “relevant economic operator” in relation to an appliance or fitting means an economic operator with obligations in respect of that appliance or fitting under EU Regulation 2016/426; and

• (d) an “enforcement authority” is to be construed in accordance with regulation 4.

• (4) Expressions and words used in these Regulations which are used in EU Regulation 2016/426 have the same meaning as in EU Regulation 2016/426 unless otherwise stated .

Application, transitional provisions, savings and revocation

2

• (1) These Regulations apply to appliances and fittings placed on the market on or after 21st April 2018.

• (2) These Regulations do not apply to—

• (a) appliances specifically designed for the uses and purposes specified in Article 1(3); or

• (b) appliances and fittings which fall within Article 1(4).

• (3) Nothing in these Regulations prevents the showing of appliances or fittings at trade fairs, exhibitions, demonstrations or the like, which are not in compliance with the provisions of EU Regulation 2016/426, provided that a visible sign clearly indicates that such appliances or fittings do not comply with those provisions and that they are not for sale until they are made compliant.

• (4) The Subject to the modifications made in paragraph (4A), the 1995 Regulations continue to apply, as if they had not been revoked, to appliances and fittings placed on the market before 21st April 2018, and in any such case the consequential amendments made by Schedule 5 do not apply.

• (4A) The modifications referred to in paragraph (4) are as follows—

• (a) any reference to the “Community” is to be read as including the United Kingdom;

• (b) any reference to “member State” is to be read as though the United Kingdom were a member State;

• (c) regulation 10(6) is to be read as if the words from “and, on request made by it” to the end were omitted;

• (d) regulation 13(2) is to be read as if sub-paragraph (b) were omitted;

• (e) regulation 15(2) is to be read as if sub-paragraph (b) were omitted.

• (5) The 1995 Regulations are revoked save to the extent required to give effect to paragraph (4).

PART 2 — Market Surveillance and Enforcement

Designation of market surveillance authorities

3

• (1) The market surveillance authority is—

• (a) in the case of appliances or fittings for private use or consumption (other than that referred to in paragraph (2)(b))—

• (i) in Great Britain, within its area, a weights and measures authority; and

• (ii) in Northern Ireland, within its area, a district council;

• (b) in the case of appliances or fittings for use or operation in the circumstances set out in paragraph (2)—

• (i) subject to paragraph (3), in Great Britain, the Health and Safety Executive; and

• (ii) in Northern Ireland, the Health and Safety Executive for Northern Ireland.

• (2) The circumstances referred to in paragraphs (1)(b) are where the appliances or fittings are designed—

• (a) for use or operation, whether exclusively or not, by persons at work; or

• (b) for use, otherwise than at work, in non-domestic premises made available to persons at a place where they may use the appliances or fittings provided for their own use there.

• (3) In so far as these Regulations apply to appliances and fittings intended exclusively or primarily for use on relevant nuclear sites, the market surveillance authority is the Office for Nuclear Regulation.

• (4) In paragraph (3) “relevant nuclear site” means a site which is—

• (a) a GB nuclear site (within the meaning given in section 68 of the Energy Act 2013 );

• (b) an authorised defence site (within the meaning given in regulation 2(1) of the Health and Safety (Enforcing Authority) Regulations 1998 ); or

• (c) a new nuclear build site (within the meaning given in regulation 2A of those Regulations ).

Enforcement Authorities

4

• (1) Subject to paragraph (2), EU Regulation 2016/426, these Regulations and RAMS (in its application to appliances and fittings) must be enforced by the market surveillance authority.

• (2) Notwithstanding paragraph (1), the Secretary of State may enforce EU Regulation 2016/426, these Regulations and RAMS (in its application to appliances and fittings).

• (3) In Scotland only the Lord Advocate may commence proceedings for an offence under these Regulations.

Enforcement Powers

5

• (1) Schedule 1 makes provision for enforcement powers under the 1987 Act where the enforcement authority is—

• (a) a weights and measures authority;

• (b) a district council; or

• (c) the Secretary of State.

• (2) Schedule 2 makes provision for enforcement powers under the 1974 Act where the enforcement authority is the Health and Safety Executive or the Office for Nuclear Regulation.

• (3) Schedule 3 makes provision for enforcement powers under the 1978 Order where the enforcement authority is the Health and Safety Executive for Northern Ireland.

• (4) In addition to the powers available to an enforcement authority by virtue of paragraph (1), (2) or (3), as appropriate, the enforcement authority may use the powers in Schedule 4 (compliance, withdrawal and recall notices).

Notification to the Secretary of State of enforcement action etc

6

A market surveillance authority must immediately notify the Secretary of State of any action taken by it, evaluation made or other opinion formed by it, or other matter within its knowledge which is required by Article 37(4) to be communicated to the Commission or the other member States in accordance with Chapter 5 .

Offences

7

• (1) It is an offence for an economic operator to contravene the requirements and obligations set out in—

• (a) Article 7 (obligations of manufacturers);

• (b) Article 9 (obligations of importers);

• (c) Article 10 (obligations of distributors);

• (d) Article 12 (identification of economic operators);

• (e) Article 17 (rules and conditions for affixing the CE UK marking); and

• (f) Article 18 (inscriptions).

• (2) It is an offence for an economic operator to fail to—

• (a) cooperate with;

• (b) provide information to; and

• (c) comply with any of the requirements of, the market surveillance authority acting under Article 37.

• (3) It is an offence for an economic operator to fail to take the action required under—

• (a) Article 39 (compliant appliance or fitting which presents a risk); or

• (b) Article 40 (formal non-compliance).

• (4) It is an offence for a person—

• (a) to intentionally obstruct an enforcement authority acting in the execution or enforcement of EU Regulation 2016/426;

• (b) without reasonable cause, to fail to give such an enforcement authority any assistance or information which that authority may reasonably require for those purposes;

• (c) to knowingly or recklessly furnish to such an enforcement authority any information knowing it to be false or misleading in a material particular; or

• (d) to fail to produce a document or record for such an enforcement authority when required to do so.

• (5) Proceedings must not be commenced against an economic operator under paragraph (1), (2) or (3) if the economic operator has been given a time period within which to comply or take action, and that time period has not expired.

Penalties

8

• (1) Except for a person who falls within paragraph (3), a person guilty of an offence under these Regulations is liable—

• (a) on summary conviction—

• (i) in England and Wales, to a fine or imprisonment for a term not exceeding three months, or to both;

• (ii) in Scotland and Northern Ireland, to a fine not exceeding the statutory maximum or imprisonment for a term not exceeding three months, or to both;

• (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or to both.

• (2) A person who falls within paragraph (3) is liable on summary conviction—

• (a) in England and Wales, to a fine or imprisonment for a term not exceeding three months, or to both;

• (b) in Scotland and Northern Ireland, to a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding three months or to both.

• (3) A person falls within this paragraph, if that person is guilty of an offence under—

• (a) regulation 7(1)(a) by contravening the requirement in Article 7(3) (failing to keep the technical documentation and the EU declaration of conformity for 10 years); or

• (b) regulation 7(1)(b) by contravening the requirement in Article 9(8) (failing to keep a copy of the EU declaration of conformity for 10 years and failing to make that document and the technical documentation available to the market surveillance authority on request).

Defence of due diligence

9

• (1) In proceedings for an offence under these Regulations, it is a defence for a person (“P”) to show that P took all reasonable steps and exercised all due diligence to avoid committing the offence.

• (2) P may not rely on a defence under paragraph (1) which involves a third party allegation unless P has—

• (a) served notice in accordance with paragraph (3); or

• (b) obtained leave of the court.

• (3) The notice must—

• (a) give any information in the possession of P which identifies or assists in identifying the person who—

• (i) is alleged to have committed the act or default; or

• (ii) supplied the information on which P relies; and

• (b) be served on the person bringing the proceedings not less than seven clear days before—

• (i) the hearing of the proceedings in England, Wales and Northern Ireland;

• (ii) the trial date in Scotland.

• (4) P may not rely on a defence under paragraph (1) which involves an allegation that the commission of the offence was due to reliance on information supplied by another person unless it was reasonable in all the circumstances to have relied on the information, having regard in particular to—

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

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

• (5) In this regulation, “third party allegation” means an allegation that the commission of the offence was due to—

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

• (b) reliance on information supplied by another person.

Liability of persons other than the principal offender

10

• (1) Where the commission by a person (“P”) of an offence under these Regulations is due to anything which another person (“S”) did or failed to do in the course of business, S is guilty of the offence and may be proceeded against and punished, whether or not proceedings are taken against P.

• (2) Where a body corporate commits an offence under these Regulations, a relevant person is also guilty of the offence where the offence was committed by the body corporate—

• (a) with the consent or connivance of a relevant person; or

• (b) as a result of the negligence of a relevant person.

• (3) In paragraph (2) a “relevant person” means —

• (a) a director, manager, secretary or other similar officer of the body corporate;

• (b) in relation to a body corporate managed by its members, a member of that body performing managerial functions;

• (c) a partner in relation to a Scottish partnership; or

• (d) a person purporting to act as a person described in subparagraphs (a), (b) or (c).

Time limit for prosecution of offences

11

• (1) In England and Wales an information relating to an offence under these Regulations that is triable by a magistrates' court may be so tried if it is laid within 12 months after the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to the knowledge of the prosecutor.

• (2) In Scotland—

• (a) summary proceedings for an offence may only be commenced within 12 months after the date on which evidence sufficient in the Lord Advocate's opinion to justify the proceedings came to the Lord Advocate's knowledge, and

• (b) section 136(3) of the Criminal Procedure (Scotland) Act 1995 (time limit for certain offences) applies for the purpose of this paragraph as it applies for the purpose of that section.

• (3) In Northern Ireland summary proceedings for an offence may be instituted within 12 months after the date on which evidence sufficient in the opinion of the prosecutor to justify proceedings comes to the knowledge of the prosecutor.

• (4) No proceedings are to be brought more than three years after the commission of the offence.

• (5) For the purposes of this regulation a certificate of the prosecutor (or in Scotland, the Lord Advocate) as to the date on which such evidence as is referred to above came to their notice is conclusive evidence of that fact.

• (6) This regulation has effect subject to paragraph (1)(n) of Schedule 2 (enforcement powers of the Health and Safety Executive and the Office for Nuclear Regulation under the 1974 Act) and to paragraph (1)(n) of Schedule 3 (enforcement powers of the Health and Safety Executive for Northern Ireland under the 1978 Order).

Written notice under Article 37 and service of documents

12

• (1) In a case falling within Article 37 (procedure at national level for dealing with appliances or fittings presenting a risk), a market surveillance authority must provide notice when requiring the relevant economic operator to, within a reasonable period—

• (a) take appropriate corrective action;

• (b) withdraw the appliance or fitting from the market in Northern Ireland ; or

• (c) recall the appliance or fitting.

• (2) The notice given under paragraph (1) must—

• (a) give reasons for the action required;

• (b) provide a time limit for compliance; and

• (c) be served in accordance with paragraphs (3) to (6).

• (3) Any document required or authorised by EU Regulation 2016/426 or these Regulations to be served on a person may be served by—

• (i) delivering it to that person in person;

• (ii) leaving it at the person's proper address; or

• (iii) sending it by post or electronic means to that person's proper address.

• (4) In the case of a body corporate, a document may be served on a director of that body.