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The Market Surveillance (Northern Ireland) Regulations 2021

Type Statutory-Instrument

Publication 2021-07-15

Last updated 2024-03-21

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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SCHEDULE 5 — Information Society Service Providers

Online interface notice

1

Where paragraph 2 applies, an enforcer may serve on an ISSP a notice (“an online interface notice”) requiring that ISSP to take such steps as are specified in the notice.

2

This paragraph applies where the enforcer considers that service of an online interface notice is appropriate in accordance with—

(a) Article 7(2) (obligation of ISSPs to cooperate with market surveillance authorities) of the MSC Regulation, or

(b) Article 14(4)(k)(ii) (restricting access to an online interface) of the MSC Regulation.

3

An online interface notice must specify only such steps as the enforcer considers appropriate—

(a) in connection with the supply of a product to which these Regulations apply, and

(b) in accordance with the requirements of Article 7(2) or 14(4)(k)(ii) of the MSC Regulation.

4

An ISSP must take the steps specified in an online interface notice when it is requested by an enforcer to do so.

5

The duty imposed by paragraph (4) is enforceable only—

(a) by way of an action for damages for breach of statutory duty against the ISSP on which the notice was served, and

(b) by a person supplied in Northern Ireland with the product to which the notice relates through the use of an online service provided by that ISSP.

6

For the purposes of this Schedule, “ISSP” means an information society service provider.

SCHEDULE 6 — Offences

Offences

1

(1) It is an offence for a person to place a product on the market in contravention of Article 4(1) of the MSC Regulation.

(2) It is an offence for an economic operator defined in Article 4(2) of the MSC Regulation to contravene a requirement of Article 4(3) of the MSC Regulation to perform a task.

(3) It is an offence for an economic operator defined in Article 4(2) of the MSC Regulation to fail to ensure that the information set out in Article 4(4) of the MSC Regulation is indicated on a product or its packaging, the parcel or an accompanying document, in contravention of Article 4(4).

(4) It is an offence for an authorised representative to contravene a requirement of Article 5(2) of the MSC Regulation to perform the tasks specified in its mandate or to provide a copy of the mandate to a market surveillance authority.

(5) It is an offence for an economic operator to contravene the requirement of Article 7(1) of the MSC Regulation to cooperate with market surveillance authorities.

(6) It is an offence for any person to contravene any requirement of a withdrawal or recall notice served on that person by an enforcer under these Regulations.

(7) Proceedings must not be commenced against a person under sub-paragraphs (1) to (6) if the person has been given a time period within which to comply or take action, and that time period has not expired.

(8) Sub-paragraphs (1) to (5) do not apply where the acts or omissions constituting a contravention of a provision of the MSC Regulation also constitute a contravention of or an offence pursuant to a provision of enforcer's legislation.

Penalties

2

A person guilty of an offence under paragraph 1 is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Defence of due diligence

3

(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 sub-paragraph (1) which involves a third party allegation unless P has—

(a) served notice in accordance with sub-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 the hearing of the proceedings.

(4) P may not rely on a defence under sub-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 paragraph, “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

4

(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 that 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 sub-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; or

Time limit for prosecution of offences

5

(1) Summary proceedings for an offence under these Regulations 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.

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

(3) For the purposes of this paragraph a certificate of the prosecutor as to the date on which such evidence as is referred to in sub-paragraph (1) came to their notice is conclusive evidence of that fact.

(4) This paragraph has effect subject to paragraph 2(2)(n) of Schedule 3 (extension of time for bringing summary proceedings).

Signed

Paul Scully — Parliamentary Under Secretary of State — 2021-07-15

Explanatory note

(This note is not part of the Regulations)

Footnotes

2018 c. 16, as amended by section 21 of the European Union (Withdrawal Agreement) Act 2020 (c. 1); there are other amendments not relevant to these Regulations.

OJ L 169, 25.06.2019, p. 1.

1978 No. 1039 (N.I. 9), to which there are amendments not relevant to these Regulations.

1987 c. 43.

S.R. 2011 No. 331, to which there are amendments not relevant to these Regulations.

1972 c. 9.

OJ L 269, 21.10.2000, p. 34.

OJ L 197, 24.7.2012, p. 38.

OJ L 127, 29 April 2014, p. 1.

OJ L 257, 28.8.2014, p. 146.

OJ L 212, 22.8.2018, p. 1.

OJ L 27, 30.01.2010, p. 1.

1968 c. 29. There are amendments to section 40 but none are relevant.

S.I. 1973/1952. Regulation 8(3) was substituted by paragraph 2 of Schedule 2 to the Consumer Rights Act 2015 (Commencement No. 3, Transitional Provisions, Savings and Consequential Amendments) Order 2015/1630. The substitution has effect subject to transitional and saving provisions specified in article 8 of SI 2015/1630.

S.I. 1995/2489. Regulation 10(2) was substituted by paragraph 23 of Schedule 2 to the Consumer Rights Act 2015 (Commencement No. 3, Transitional Provisions, Savings and Consequential Amendments) Order 2015/1630. The substitution has effect subject to transitional and saving provisions specified in article 8 of SI 2015/1630.

S.I. 1981/231 (NI 10). Article 39 was amended by paragraph 1(3) of the Schedule to the Consumer Rights (Enforcement and Amendments) Order 2016 (S.I. 2016/1259).

S.I. 1999/3107; regulation 5C was inserted and regulations 5A-5C substituted for regulation 5A by regulation 7 of the Motor Fuel (Composition and Content) and Merchant Shipping (Prevention of Air Pollution from Ships) (Amendment) Regulations 2010/3035.

S.I. 2001/1701; paragraph 1 was amended by regulation 2(3) of the Noise Emission in the Environment by Equipment for use Outdoors (Amendment) Regulations 2015/98.

S.I. 2002/618; regulation 61 was replaced by section 41 of the Medicines and Medical Devices Act 2021 (c. 3). There are other amending instruments but none is relevant.

S.R. 2006 No. 503.

S.I. 2007/3106; as amended by S.I. 2018/1405, S.I. 2019/1099 and S.I. 2020/1358.

S.I. 2008/2852. Regulation 3(1) was amended in respect of Northern Ireland by regulations 4 and 15(5)(a) of of S.I. 2020/1577. Schedule 1 was amended in respect of Northern Ireland by S.I. 2013/2919, S.I. 2019/758 and S.I. 2020/1577.

S.I. 2008/1597.

S.I. 2008/2164.

S.I. 2010/740, regulation 4 was amended by regulation 5(4) of S.I. 2020/1617 as it applies in Northern Ireland.

S.I. 2010/2617, amended by S.I. 2019/539.

S.R. 2010 No. 160; regulation 28 was amended by S.R. 2020 No. 222.

S.I. 2011/1524; regulation 4 was amended by S.I. 2019/539 and S.I. 2018/255.

S. R. 2011 No. 240.

S.R. 2015 No. 236 as amended by S.R. 2021 No. 37.

S.R. 2015 No. 425; regulation 18 was amended by the Fluorinated Greenhouse Gases (Amendment) Regulations (Northern Ireland) 2018 (S.R. 2018 No. 206). There are other amending instruments but none is relevant.

S.I. 2015/1640, regulation 7 is amended by S.I. 2020/1647; there are other amending instruments but none is relevant.

S.I. 2016/1091. Amended by S.I. 2017/1206; there are other amending instruments but none is relevant.

S.I. 2016/1092, to which there are amendments not relevant to these Regulations.

S.I. 2016/1093, to which there are amendments not relevant to these Regulations.

S.I. 2016/1101, to which there are amendments not relevant to these Regulations.

S.I. 2016/1105, to which there are amendments not relevant to these Regulations.

S.I. 2016/1152, to which there are amendments not relevant to these Regulations.

S.I. 2016/1153, to which there are amendments not relevant to these Regulations.

S.R. 2016 No. 366, to which there are amendments not relevant to these Regulations.

S.I. 2017/737, to which there are amendments not relevant to these Regulations.

S.I. 2017/1200, to which there are amendments not relevant to these Regulations.

S.I. 2017/1206, to which there are amendments not relevant to these Regulations.

S.R. 2017 No. 90, to which there are amendments not relevant to these Regulations.

S.I. 2018/389, to which there are amendments not relevant to these Regulations.

S.I. 2018/390, to which there are amendments not relevant to these Regulations.

S.I. 2018/816, to which there are amendments not relevant to these Regulations.

S.I. 2020/1359.

S.I. 2020/1509.

S.I. 1977/932, amended by S.I. 2020/1460; there are other amending instruments but none is relevant.

S.I. 1988/186; revoked, subject to savings, by S.I. 2015/356 and relevant amending instruments are S.I. 2008/1267, S.I. 2015/1630. S.I. 1988/186 was made under section 2(2) of the European Communities Act 1972 and the relevant provisions are accordingly saved by virtue of section 2(2)(a) of the European Union (Withdrawal) Act 2018 (c. 16).

S.R. 1989 No. 69. Regulation 4(5) was inserted by regulation 6 of the Weights and Measures (Specified Quantities) (Pre-packed Products) Regulations (Northern Ireland) 2010 to implement Directive 2007/45/EC of the European Parliament and of the Council of 5 September 2007 laying down rules on nominal quantities for prepacked products, repealing Council Directives 75/106/EEC and 80/232/EEC, and amending Council Directive 76/211/EEC (OJ L 247, 21.9.2007, p. 17–20), and was amended by the Weights and Measures (Food) (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/187).

S.R. 1989 No. 164, as amended by regulation 5 of the Weights and Measures (Specified Quantities) (Pre-packed Products) Regulations (Northern Ireland) 2010 (S.R. 2010 No. 203) to implement Directive 2007/45/EC.

S.R. 1989 No. 407, as amended by regulation 4 of the Weights and Measures (Specified Quantities) (Pre-packed Products) Regulations (Northern Ireland) 2010 (S.R. 2010 No. 203) to implement Directive 2007/45/EC.

S.R. 2001 No. 202.

S.I. 2009/2194.

S.I. 2009/2824, amended by S.I. 2020/1460; there are other amending instruments but none is relevant.

S.I. 2011/1881; relevant amending instruments are S.I. 2020/1112, 2020/1460.

S.I. 2018/235, amended by S.I. 2018/673.

S.I. 2018/236, amended by S.I. 2018/673.

S.I. 2018/764, to which there are amendments not relevant to these Regulations.

S.I. 2020/818, to which there are amendments not relevant to these Regulations.

2021 c. 3.

2015 c. 15.

S.I. 1979/1714 (N.I. 19), to which there are amendments not relevant to these Regulations.

S.I. 1989/1341 (N.I. 12); relevant amending instruments are S.I. 2007/288 (N.I. 2), and paragraph 22 of Schedule 9 to the Protection of Freedoms Act 2012 (c. 9).

S.I. 1981/1675 (N.I. 26), to which there are amendments not relevant to these Regulations.

Editorial notes

2018 c. 16, as amended by section 21 of the European Union (Withdrawal Agreement) Act 2020 (c. 1); there are other amendments not relevant to these Regulations.

OJ L 169, 25.06.2019, p. 1.

1978 No. 1039 (N.I. 9), to which there are amendments not relevant to these Regulations.

1987 c. 43.

S.R. 2011 No. 331, to which there are amendments not relevant to these Regulations.

1972 c. 9.

OJ L 269, 21.10.2000, p. 34.

OJ L 197, 24.7.2012, p. 38.

OJ L 127, 29 April 2014, p. 1.

OJ L 257, 28.8.2014, p. 146.

OJ L 212, 22.8.2018, p. 1.

OJ L 27, 30.01.2010, p. 1.

1968 c. 29. There are amendments to section 40 but none are relevant.

S.I. 1981/231 (NI 10). Article 39 was amended by paragraph 1(3) of the Schedule to the Consumer Rights (Enforcement and Amendments) Order 2016 (S.I. 2016/1259).

S.I. 2001/1701; paragraph 1 was amended by regulation 2(3) of the Noise Emission in the Environment by Equipment for use Outdoors (Amendment) Regulations 2015/98.

S.I. 2002/618; regulation 61 was replaced by section 41 of the Medicines and Medical Devices Act 2021 (c. 3). There are other amending instruments but none is relevant.

S.R. 2006 No. 503.

S.I. 2007/3106; as amended by S.I. 2018/1405, S.I. 2019/1099 and S.I. 2020/1358.

S.I. 2008/1597.

S.I. 2008/2164.

S.I. 2010/740, regulation 4 was amended by regulation 5(4) of S.I. 2020/1617 as it applies in Northern Ireland.

S.I. 2010/2617, amended by S.I. 2019/539.

100

S.R. 2010 No. 160; regulation 28 was amended by S.R. 2020 No. 222.

101

S.I. 2011/1524; regulation 4 was amended by S.I. 2019/539 and S.I. 2018/255.

102

S. R. 2011 No. 240.

103

S.I. 2012/1102.

104

S.I. 2012/1715.

105

S.I. 2012/3032.

106

S.R. 2013 No. 206.

107

S.I. 2013/1478.

108

S.I. 2015/1553.

109

S.R. 2015 No. 236 as amended by S.R. 2021 No. 37.

110

111

S.I. 2015/1640, regulation 7 is amended by S.I. 2020/1647; there are other amending instruments but none is relevant.

112

S.I. 2016/1091. Amended by S.I. 2017/1206; there are other amending instruments but none is relevant.

113

S.I. 2016/1092, to which there are amendments not relevant to these Regulations.

114

S.I. 2016/1093, to which there are amendments not relevant to these Regulations.

115

S.I. 2016/1101, to which there are amendments not relevant to these Regulations.

116

S.I. 2016/1105, to which there are amendments not relevant to these Regulations.

117

S.I. 2016/1152, to which there are amendments not relevant to these Regulations.

118

S.I. 2016/1153, to which there are amendments not relevant to these Regulations.

119

S.R. 2016 No. 366, to which there are amendments not relevant to these Regulations.

120

S.I. 2017/737, to which there are amendments not relevant to these Regulations.

121

S.I. 2017/1200, to which there are amendments not relevant to these Regulations.

122

S.I. 2017/1206, to which there are amendments not relevant to these Regulations.

123

S.R. 2017 No. 90, to which there are amendments not relevant to these Regulations.

124

S.I. 2018/389, to which there are amendments not relevant to these Regulations.

125

S.I. 2018/390, to which there are amendments not relevant to these Regulations.

126

S.I. 2018/816, to which there are amendments not relevant to these Regulations.

127

S.I. 2020/1359.

128

S.I. 2020/1509.

129

S.I. 1977/932, amended by S.I. 2020/1460; there are other amending instruments but none is relevant.

130

131

132

133

134

S.R. 2001 No. 202.

135

S.I. 2009/2194.

136

S.I. 2009/2824, amended by S.I. 2020/1460; there are other amending instruments but none is relevant.

137

S.I. 2011/1881; relevant amending instruments are S.I. 2020/1112, 2020/1460.

138

S.I. 2018/235, amended by S.I. 2018/673.

139

S.I. 2018/236, amended by S.I. 2018/673.

140

S.I. 2018/764, to which there are amendments not relevant to these Regulations.

141

S.I. 2020/818, to which there are amendments not relevant to these Regulations.

142

2021 c. 3.

143

2015 c. 15.

144

S.I. 1979/1714 (N.I. 19), to which there are amendments not relevant to these Regulations.

145

S.I. 1989/1341 (N.I. 12); relevant amending instruments are S.I. 2007/288 (N.I. 2), and paragraph 22 of Schedule 9 to the Protection of Freedoms Act 2012 (c. 9).

146

S.I. 1981/1675 (N.I. 26), to which there are amendments not relevant to these Regulations.

147

Reg. 1 in force at 16.7.2021, see reg. 1(1)

148

Reg. 2 in force at 16.7.2021, see reg. 1(1)

149

Reg. 3 in force at 16.7.2021, see reg. 1(1)

150

Reg. 4 in force at 16.7.2021, see reg. 1(1)

151

Reg. 5 in force at 16.7.2021, see reg. 1(1)

152

Reg. 6 in force at 16.7.2021, see reg. 1(1)

153

Reg. 7 in force at 16.7.2021, see reg. 1(1)

154

Reg. 8 in force at 16.7.2021, see reg. 1(1)

155

Reg. 9 in force at 16.7.2021, see reg. 1(1)

156

Sch. 1 para. 1 in force at 16.7.2021, see reg. 1(1)

157

Sch. 1 para. 2 in force at 16.7.2021, see reg. 1(1)

158

Sch. 1 para. 3 in force at 16.7.2021, see reg. 1(1)

159

Sch. 1 para. 4 in force at 16.7.2021, see reg. 1(1)

160

Sch. 1 para. 5 in force at 16.7.2021, see reg. 1(1)

161

Sch. 1 para. 6 in force at 16.7.2021, see reg. 1(1)

162

Sch. 1 para. 7 in force at 16.7.2021, see reg. 1(1)

163

Sch. 1 para. 8 in force at 16.7.2021, see reg. 1(1)

164

Sch. 1 para. 9 in force at 16.7.2021, see reg. 1(1)

165

Sch. 1 para. 10 in force at 16.7.2021, see reg. 1(1)

166

Sch. 1 para. 11 in force at 16.7.2021, see reg. 1(1)

167

Sch. 1 para. 12 in force at 16.7.2021, see reg. 1(1)

168

Sch. 1 para. 13 in force at 16.7.2021, see reg. 1(1)

169

Sch. 1 para. 14 in force at 16.7.2021, see reg. 1(1)

170

Sch. 1 para. 15 in force at 16.7.2021, see reg. 1(1)

171

Sch. 1 para. 16 in force at 16.7.2021, see reg. 1(1)

172

Sch. 1 para. 17 in force at 16.7.2021, see reg. 1(1)

173

Sch. 1 para. 18 in force at 16.7.2021, see reg. 1(1)

174

Sch. 1 para. 19 in force at 16.7.2021, see reg. 1(1)

175

Sch. 1 para. 20 in force at 16.7.2021, see reg. 1(1)

176

Sch. 1 para. 21 in force at 16.7.2021, see reg. 1(1)

177

Sch. 1 para. 22 in force at 16.7.2021, see reg. 1(1)

178

Sch. 1 para. 23 in force at 16.7.2021, see reg. 1(1)

179

Sch. 1 para. 24 in force at 16.7.2021, see reg. 1(1)

180

Sch. 1 para. 25 in force at 16.7.2021, see reg. 1(1)

181

Sch. 1 para. 26 in force at 16.7.2021, see reg. 1(1)

182

Sch. 1 para. 27 in force at 16.7.2021, see reg. 1(1)

183

Sch. 1 para. 28 in force at 16.7.2021, see reg. 1(1)

184

Sch. 1 para. 29 in force at 16.7.2021, see reg. 1(1)

185

Sch. 2 para. 1 in force at 16.7.2021, see reg. 1(1)

186

Sch. 2 para. 2 in force at 16.7.2021, see reg. 1(1)

187

Sch. 3 para. 1 in force at 16.7.2021, see reg. 1(1)

188

Sch. 3 para. 2 in force at 16.7.2021, see reg. 1(1)

189

Sch. 3 para. 3 in force at 16.7.2021, see reg. 1(1)

190

Sch. 4 para. 1 in force at 16.7.2021, see reg. 1(1)

191

Sch. 4 para. 2 in force at 16.7.2021, see reg. 1(1)

192

Sch. 4 para. 3 in force at 16.7.2021, see reg. 1(1)

193

Sch. 4 para. 4 in force at 16.7.2021, see reg. 1(1)

194

Sch. 4 para. 5 in force at 16.7.2021, see reg. 1(1)

195

Sch. 5 para. 1 in force at 16.7.2021, see reg. 1(1)

196

Sch. 5 para. 2 in force at 16.7.2021, see reg. 1(1)

197

Sch. 5 para. 3 in force at 16.7.2021, see reg. 1(1)

198

Sch. 5 para. 4 in force at 16.7.2021, see reg. 1(1)

199

Sch. 5 para. 5 in force at 16.7.2021, see reg. 1(1)

200

Sch. 5 para. 6 in force at 16.7.2021, see reg. 1(1)

201

Sch. 6 para. 1 in force at 16.7.2021, see reg. 1(1)

202

Sch. 6 para. 2 in force at 16.7.2021, see reg. 1(1)

203

Sch. 6 para. 3 in force at 16.7.2021, see reg. 1(1)

204

Sch. 6 para. 4 in force at 16.7.2021, see reg. 1(1)

205

Sch. 6 para. 5 in force at 16.7.2021, see reg. 1(1)

206

Reg. 6(rr) inserted (27.7.2021) by The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(2)

207

Words in Sch. 1 para. 1 inserted (27.7.2021) by The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(3)(a)

208

Words in Sch. 1 para. 16(1) substituted (27.7.2021) by The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(3)(b)(i)

209

Word in Sch. 1 para. 16(3)(a)(ii) omitted (27.7.2021) by virtue of The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(3)(b)(iii)

210

Sch. 1 para. 16(3)(a)(iii)(iv) inserted (27.7.2021) by The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(3)(b)(iv)

211

Words in Sch. 1 para. 1 inserted (21.3.2024) by The Medical Devices (In Vitro Diagnostic Devices etc.) (Amendment) Regulations 2024 (S.I. 2024/221), regs. 1(2), 26(a)

212

Sch. 1 para. 16(2) substituted (21.3.2024) by The Medical Devices (In Vitro Diagnostic Devices etc.) (Amendment) Regulations 2024 (S.I. 2024/221), regs. 1(2), 26(b)(i)

213

Word in Sch. 1 para. 16(3)(a)(iv) omitted (21.3.2024) by virtue of The Medical Devices (In Vitro Diagnostic Devices etc.) (Amendment) Regulations 2024 (S.I. 2024/221), regs. 1(2), 26(b)(ii)

214

Sch. 1 para. 16(3)(a)(v) inserted (21.3.2024) by The Medical Devices (In Vitro Diagnostic Devices etc.) (Amendment) Regulations 2024 (S.I. 2024/221), regs. 1(2), 26(b)(ii)

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