The Market Surveillance (Northern Ireland) Regulations 2021

Made: 15th July 2021

Coming into force: 16th July 2021

The Secretary of State makes these Regulations in exercise of the powers conferred by section 8C(1) of the European Union (Withdrawal) Act 2018 .

In accordance with paragraph 8F of Schedule 7 to that Act, a draft of this instrument has been laid before Parliament and approved by a resolution of each House.

Citation, commencement and extent

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• (1) These Regulations may be cited as the Market Surveillance (Northern Ireland) Regulations 2021 and come into force on 16th July 2021.

• (2) These Regulations extend to Northern Ireland only.

Interpretation

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• (1) In these Regulations, “MSC Regulation” means Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011 as it has effect in EU law as amended from time to time.

• (2) Expressions used in these Regulations which appear in the MSC Regulation have the same meaning as in the MSC Regulation.

• (3) In these Regulations—

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

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

• “the 2011 Regulations” means the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011 ;

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

• “enforcer” means—a district council in Northern Ireland;the Secretary of State;the Health and Safety Executive for Northern Ireland;the Department for the Economy in Northern Ireland;the Department for Agriculture, Environment and Rural Affairs in Northern Ireland;the Department for Infrastructure in Northern Ireland;the Department for Health in Northern Ireland;the Department of Justice in Northern Ireland;the Utility Regulator;the Chief Constable of the Police Service of Northern Ireland;Ofcom;

• “enforcer” includes—an officer of an enforcer;where the enforcer's legislation makes provision for—the appointment of an inspector, an inspector so appointed by the enforcer; orthe appointment or authorisation of a person to exercise market surveillance powers on the enforcer's behalf, the person so appointed or authorised by the enforcer;an enforcer (A) who does not have a power or a duty to enforce the enforcer's legislation in respect of a particular product but with whom the enforcer in respect of that product (B) has entered into an agreement such that A will carry out an enforcement duty that applies to B;

• “enforcer's legislation” means the legislation provisions of which are referred to in regulation 6 and which is referred to in regulation 7, and in relation to a particular enforcer means—legislation which, by virtue of a provision listed in regulation 6, the enforcer has a duty or power to enforce; andin relation to an enforcer listed in Column 1 of the table in regulation 7, the legislation in the corresponding entry in Column 2;

• “officer”, in relation to an enforcer, means—an inspector appointed by the enforcer to exercise powers under Schedule 1, or authorised to do so;an officer of the enforcer appointed by the enforcer to exercise powers under this Schedule 1, or authorised to do so;an employee of the enforcer (other than an inspector or officer) appointed by the enforcer to exercise powers under Schedule 1, or authorised to do so; ora person (other than an inspector, officer or employee of the enforcer) authorised by the enforcer to exercise powers under Schedule 1;but references in these Regulations to an officer in relation to a particular power only cover a person within sub-paragraphs (a) to (d) if and to the extent that the person has been appointed or authorised to exercise that power;

• “non-compliance” means—a contravention of an obligation placed on an economic operator by, or under, the MSC Regulation or the enforcer's legislation; ora product presenting a risk.

Application

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• (1) Subject to paragraphs (2) and (3), these Regulations apply in respect of a product that is subject to the Union harmonisation legislation.

• (2) These Regulations do not apply to a product that is the subject of—

• (a) Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of-life vehicles ;

• (b) Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment ;

• (c) Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC ;

• (d) Directive 2014/90/EU of the European Parliament and of the Council of 23 July 2014 on marine equipment and repealing Council Directive 96/98/EC ; and

• (e) Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 .

• (3) These Regulations do not apply to any product to which no other Union harmonisation legislation applies, solely by reason of the product being subject to Regulation 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel .

Designation of market surveillance authorities

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For the purposes of the MSC Regulation, an enforcer is deemed to be a market surveillance authority for those products in respect of which it enforces the enforcer's legislation.

Enforcement powers giving effect to Article 14(4) of the MSC Regulation

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• (1) For the purposes of enforcing the MSC Regulation, an enforcer, in relation to a product, is the person who enforces the enforcer's legislation in respect of that product.

• (2) For the purposes of enforcing the MSC Regulation and the enforcer's legislation, and to the extent that there are no specific provisions with the same objective in the enforcer's legislation, the following have effect—

• (a) Schedule 1 (investigatory powers);

• (b) Schedule 2 (enforcement powers under the 1987 Act);

• (c) Schedule 3 (enforcement powers under the 1978 Order);

• (d) Schedule 4 (notices); and

• (e) Schedule 5 (online interface notices).

• (3) When enforcing the MSC Regulation or the enforcer's legislation, an enforcer must exercise its powers in a manner consistent with Article 18 of the MSC Regulation.

Enforcer's legislation

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The duties and powers of an enforcer are those arising under any of the following provisions—

• (a) section 40(1)(b) of the Trade Descriptions Act 1968 (including as applied by—

• (i) regulation 8(3) of the Crystal Glass (Descriptions) Regulations 1973 and

• (ii) regulation 10(2) of the Footwear (Indication of Composition) Labelling Regulations 1995 );

• (b) Article 39 of the Weights and Measures (Northern Ireland) Order 1981 ;

• (c) section 27(1) of the 1987 Act;

• (d) regulation 5C of the Motor Fuel (Composition and Content) Regulations 1999 ;

• (e) paragraph 1 of Schedule 13 to the Noise Emission in the Environment by Equipment for use Outdoors Regulations 2001 ;

• (f) regulation 61 of the Medical Devices Regulations 2002 ;

• (g) regulation 11(1) of the EC Fertilisers Regulations (Northern Ireland) 2006 ;

• (h) regulation 3(1)(b) of the Persistent Organic Pollutants Regulations 2007 ;

• (i) regulation 3(1) of, and the table at Schedule 1 to, the REACH Enforcement Regulations 2008 as they apply in Northern Ireland ;

• (j) paragraphs 4 and 5 of Schedule 5 to the Supply of Machinery (Safety) Regulations 2008 ;

• (k) regulation 8 of the Batteries and Accumulators (Placing on the Market) Regulations 2008 ;

• (l) regulation 4(4) and 5 of the Detergents Regulations 2010 ;

• (m) regulations 10 and 12 of the Ecodesign for Energy-Related Products Regulations 2010 ;

• (n) regulation 28 of the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations (Northern Ireland) 2010 ;

• (o) regulation 4 of the Energy Information Regulations 2011 ;

• (p) regulation 7 of the Ozone-Depleting Substances (Qualifications) Regulations (Northern Ireland) 2011 ;

• (q) regulation 10(1) of the 2011 Regulations;

• (r) regulation 11 of the Textile Products (Labelling and Fibre Composition) Regulations 2012 ;

• (s) regulation 6(1)(c) of, and Schedule 4 to, the Volatile Organic Compounds in Paints, Varnishes and Vehicle Refinishing Products Regulations 2012 ;

• (t) regulation 36 of the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012 ;

• (u) regulations 8 and 17 of the Biocidal Products and Chemicals (Appointment of Authorities and Enforcement) Regulations (Northern Ireland) 2013 ;

• (v) regulation 6(1) of the Cosmetic Products Enforcement Regulations 2013 ;

• (w) regulation 53 of the Pyrotechnic Articles (Safety) Regulations 2015 ;

• (x) regulation 6 of the Explosives (Appointment of Authorities and Enforcement) Regulations (Northern Ireland) 2015 ;

• (y) regulation 18 of the Fluorinated Greenhouse Gases Regulations (Northern Ireland) 2015 ;

• (z) regulation 7(1)(b) of the Packaging (Essential Requirements) Regulations 2015 ;

• (aa) regulation 52 of the Electromagnetic Compatibility Regulations 2016 ;

• (bb) regulation 55 of the Simple Pressure Vessels (Safety) Regulations 2016 ;

• (cc) regulation 61 of the Lifts Regulations 2016 ;

• (dd) regulation 41 of the Electrical Equipment (Safety) Regulations 2016) ;

• (ee) regulation 67 of the Pressure Equipment (Safety) Regulations 2016 ;

• (ff) regulation 62 of the Non-automatic Weighing Instruments Regulations 2016 ;

• (gg) regulation 67 of the Measuring Instruments Regulations 2016 ;

• (hh) regulation 44 of, and Schedule 2 to, the Making Available on the Market and Supervision of Transfers of Explosives Regulations (Northern Ireland) 2016 ;

• (ii) regulation 66 of the Recreational Craft Regulations 2017 ;

• (jj) regulation 5 and Part 3 (enforcement specific to Northern Ireland) of the Control of Mercury (Enforcement) Regulations 2017 ;

• (kk) regulation 56 of the Radio Equipment Regulations 2017 ;

• (ll) regulation 52 of the Equipment and Protective Systems Intended for Use in Potentially Explosive Atmospheres Regulations (Northern Ireland) 2017 ;

• (mm) regulation 4 of the Gas Appliances (Enforcement) and Miscellaneous Amendments Regulations 2018 ;

• (nn) regulation 4 of the Personal Protective Equipment (Enforcement) Regulations 2018 ;

• (oo) regulation 22 of the Cableway Installation Regulations 2018 ;

• (pp) paragraph 17 of Schedule 3 to the Construction Products (Amendment etc.) (EU Exit) Regulations 2020 ;

• (qq) regulation 3 of the Motor Vehicle Tyres (Labelling) (Enforcement) (Amendment) (EU Exit) Regulations 2020 .

• (rr) regulation 26 of the Medical Devices (Northern Ireland Protocol) Regulations 2021.

Table of enforcer's legislation

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The following table applies for the purposes of paragraph (b) of the definition of enforcer's legislation.

Offences

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Schedule 6 (offences) has effect.

Amendment of Schedule 5 to the Consumer Rights Act 2015

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• (1) Schedule 5 (investigatory powers etc.) to the Consumer Rights Act 2015 is amended as follows.

• (2) In paragraph 8 (interpretation of other terms), for the definition of “the Regulation on Accreditation and Market Surveillance”, substitute—

“the Market Surveillance Regulation” means Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011.

• (3) In paragraphs 13(6), 19(4)(b) and 23(6)(d)—

• (a) for “Article 2(18) of the Regulation on Accreditation and Market Surveillance”, substitute “ Article 3(4) of the Market Surveillance Regulation ”; and

• (b) for “Article 2(17) of that Regulation”, substitute “ Article 3(3) of that Regulation ”.

SCHEDULE 1 — Investigatory powers

Interpretation of terms used in this Schedule

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In this Schedule—

• “premises” includes any trading stall, vehicle, vessel or aircraft;

• “proceedings” may include an application for forfeiture.

• “Regulation (EU) 2017/745 on medical devices” means Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical devices, amending Directive 2001/83/EC, Regulation (EC) No 178/2002 and Regulation (EC) No 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC.

• “Regulation (EU) 2017/746 on in vitro diagnostic medical devices” means Regulation (EU) 2017/746 of the European Parliament and of the Council of 5 April 2017 on in vitro diagnostic medical devices and repealing Directive 98/79/EC and Commission Decision 2010/227/EU.

Power to require the production of information

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• (1) An enforcer or an officer of an enforcer may give notice to a person requiring the person to provide the enforcer with the information specified in the notice.

• (2) The information may include information of the kinds specified in Article 14(4)(a) to (c) of the MSC Regulation.

• (3) An enforcer may exercise the powers in this paragraph for the purpose of ascertaining whether there is, or has been, any non-compliance.

Procedure for notice under paragraph 2

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• (1) A notice under paragraph 2 must be in writing and specify the purpose for which the information is required.

• (2) If the purpose is to enable a person to exercise or to consider whether to exercise a function, the notice must specify the function concerned.

• (3) The notice may specify—

• (a) the time within which and the manner in which the person to whom it is given must comply with it;

• (b) the form in which information must be provided.

• (4) The notice may require—

• (a) the creation of documents, or documents of a description, specified in the notice, and

• (b) the provision of those documents to the enforcer or an officer of the enforcer.

• (5) A requirement to provide information or create a document is a requirement to do so in a legible form.

• (6) A notice under paragraph 2 does not require a person to provide any information or create any documents which the person would be entitled to refuse to provide or produce in proceedings in the High Court on the grounds of legal professional privilege.

Enforcement of notice under paragraph 2

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• (1) If a person fails to comply with a notice under paragraph 2, the enforcer or an officer of the enforcer may make an application under this paragraph to the court.

• (2) If it appears to the court that the person has failed to comply with the notice, it may make an order under this paragraph.

• (3) An order under this paragraph is an order requiring the person to do anything that the court thinks it is reasonable for the person to do, for any of the purposes for which the notice was given, to ensure that the notice is complied with.

• (4) An order under this paragraph may require the person to meet the costs or expenses of the application.

• (5) If the person is a company, partnership or unincorporated association, the court in acting under sub-paragraph (4) may require an official who is responsible for the failure to meet the costs or expenses.

• (6) In this paragraph, “the court” means—

• (a) the High Court; or

• (b) a county court;