Memorandum by the Department of the Environment, Transport
and the Regions
REGULATIONS 1997 (S.I. 1997/2389)
1. By a letter from its Clerk dated 12 November 1997 the
Committee requested a memorandum on the following points:
(1) In regulation 2(1), in the definition of "supplier
of groundhandling services", ought not the reference to regulation
27(1)(b) to be one to regulation 26(1)(b)?
2. The Department acknowledges that the reference should
be to regulation 26(1)(b). Regulation 26(1)(b) does not have any
practical effect until 1 January 1999 (see regulation 1(4)). The
Department undertakes to make a timely amendment to regulation
2(1) to rectify this error.
(2) Regulation 2(3) states that these Regulations
are to have effect for the purpose of making such provision as
is necessary to comply with the Directive and shall be construed
accordingly. Explain the purpose of each proposition, indicating,
as to the second, what this adds to paragraph (2) of this regulation
(expressions used in the Directive and these Regulations).
3. The first proposition is to inform the reader of the purpose
of making the Regulations. It is declaratory but looks forward
to the second proposition, which is intended to ensure that, in
the event of any dispute as to the meaning of the Regulations,
such dispute should be resolved by reference to the Directive.
4. The Department included this wording to state explicitly
the principle of consistent interpretation with the Directive.
The Department noted that a similar provision was used in section
1(1) of the Consumer Protection Act 1987. In a recent case the
European Court of Justice was asked to consider whether a provision
had been correctly implemented in that Act and the Court noted
both that there was no evidence that courts in the UK would interpret
the provision in question in a way which was not consistent with
the Directive and also that the wording of section 1(1) expressly
obliged them to do so.
5. Regulation 2(2) applies to expressions in the Regulations
which also appear in the Directive. Regulation 2(3) is intended
to apply to the Regulations as a whole including expressions in
the Regulations which do not appear in the Directive.
6. On reflection the Department acknowledges that regulation
2(3) is unnecessary.
(3) Regulation 12 (6) requires the invitation to tender
for supplying groundhandling services to specify (b) "the
deadline for the submission of tenders (which shall be no earlier
than one month from the date on which the invitation to tender
is published beginning on that date.". Are not the
bold words unnecessary?
7. The Department does not consider the bold words to be
unnecessary as they make it clear that "from" includes
the date of publication. The Department acknowledges, however,
that regulation 12(6)(b) could have been drafted more clearly
(4) Regulation 24(2) makes an offence under regulation
22(3) an offence triable only summarily. Ought not the maximum
amount of the fine to be in terms, not of the statutory maximum,
but of level 5 on the standard scale (having regard to the operation
of section 46 of the Criminal Justice Act 1982 in relation to
offences created under section 2(2) of the European Communities
8. The Department acknowledges that the maximum amount of
the fine should be in terms, not of the statutory maximum, but
of level 5 on the standard scale. Regulation 24(2) has no practical
effect until 1 January 1999, when regulation 17 comes into force
in relation to certain airports (see regulation 1(4)). The Department
undertakes to make a timely amendment to regulation 24(2) to rectify
(5) In Schedule 1, paragraph 1(a) is made "subject
to paragraph 3 below". Explain this reference.
9. The Department acknowledges that the reference to paragraph
3 is incorrect. The intention was to refer to paragraph 2 of that
Schedule. On reflection, however, the Department considers that
the qualification to which the Committee refers should be omitted
because paragraph 2 does not "reduce" the second requirement
in paragraph 1. The Department undertakes to make the necessary
amendment at the next suitable opportunity.
10. The Department very much regrets the errors referred
17th November 1997
3 Commission v United Kingdom. Case No. C300/95.
Decided 29 May 1997. Not yet reported in full. Back