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Joint Committee on Statutory Instruments Twenty-First Report


Memorandum by the Department of Trade and Industry


1.  The Committee has requested a Memorandum from the Department on the following point:-

  "In the new regulation 26A (empowering service of compliance notices requiring remedial action, leading to enforcement action in respect of non-complying instruments) -

      (a)  paragraph (7) makes a person who fails to end the non-conformity specified in the notice subject to "such enforcement action as may be appropriate"; and

      (b)  paragraph (8) states that references to other "provisions of these Regulations include references to corresponding provisions under the laws of a member State other than the United Kingdom".

  Explain -

      (a)  as regards paragraph (7), what kinds of enforcement action would be available, identifying the (legal) provision making it available; and

      (b)  as regards paragraph (8) -

        (i)  explain its purpose and effect; and

        (ii)  if its intended effect is to empower the serving of a compliance notice (with liability to enforcement action for non-compliance) in respect of a breach of a corresponding law of (say) France or Greece, explain what authorises such a provision."

2.  In relation to the first part of the point raised by the Committee, regulation 26A, which these Regulations introduce into the Non-automatic Weighing Instruments (EEC Requirements) Regulations 1995[4] ("the 1995 Regulations"), is designed as a prelude to enforcement action being taken under the 1995 Regulations. The regulation implements Article 11 of Directive 90/384/EEC on the harmonisation of the laws of the member States relating to non-automatic weighing instruments ("the Directive").[5] That Article requires member States in certain circumstances to give a manufacturer or his authorised representative the opportunity to end an infringement before taking enforcement action. If the infringement in question continues after the compliances procedures in regulation 26A have been followed, enforcement action as is appropriate under the 1995 Regulations may be taken.

3.  Enforcement action may take one of various forms depending upon a number of possible ways in which non-conformity with the 1995 Regulations may arise. For example, the authorised person may perceive that the contravention in question relates to the use of an instrument in a manner which contravenes regulation 4 of the 1995 Regulations. If the contravention continues after the service of a compliance notice in accordance with regulation 26A the authorised person may take proceedings in respect of an offence under regulation 4, and in such a case forfeiture under that regulation and/or a fine under regulation 40 are possible enforcement measures. In other circumstances the authorised person may consider that enforcement action should consist of a suspension of the EC declaration of type conformity, making use of the powers found in regulation 16 of the 1995 Regulations, together with or instead of the imposition of a fine under regulation 40. There would be other examples depending upon the nature of the contravention.

4.  Given that the methods of enforcement referred to above are all contained within the 1995 Regulations and given that regulation 26A lays down a preliminary procedure in respect of such enforcement, it is not thought necessary to detail the means of enforcement which might be appropriate in any particular case. The view is that those responsible for enforcement action should be able to exercise the discretion vested in them without the need for detailed provisions on the face of the Regulations. Regulation 26A merely requires them to add into their enforcement activities a preliminary procedure before they move on to enforcement action of a type prescribed elsewhere in the 1995 Regulations.

5.  In relation to the second part of the point raised by the Committee, the Committee would have noted that these Regulations and the 1995 Regulations are made under section 2(2) of the European Communities Act 1972.[6] They implemented the provisions of the Directive. The purpose of the Directive is to promote free movement under the establishment of a single market in respect of such instruments and all member States are obliged to implement its provisions. In drafting the Regulations the Department has endeavoured to take an approach which preserves and enhances as far as possible the integrity of that single market. Regulation 26A deals with steps which in suitable circumstances are to be followed prior to enforcement action itself so thereby implementing a requirement of the Directive. It is possible that instruments produced elsewhere in the Community would be placed on the market in the United Kingdom. In practice, this does now occur. Article 11 of the Directive makes no distinction in respect of place of manufacture of an instrument. Paragraph (8) of regulation 26A makes provision for an authorised person to use the powers in that regulation in respect of an instrument placed on the market in the UK but which contravenes provisions in the implementing legislation of the member State of origin. This is considered necessary to properly implement the provisions of Article 11 of the Directive.

6.  The Regulations enable enforcement authorities to assist their counter-parts in other member States in ensuring compliance with the Directive by permitting them to draw attention to potential breaches of the relevant legislation of other member States. Thus it is envisaged that an authorised person may warn of non-conformity in respect of provisions in place in the other member States. Such non-conformity would be non-conformity with the provisions of the Directive. It is not, however, intended or envisaged that paragraph (8) of regulation 26A should or indeed could be used to enable an authorised person under the 1995 Regulations to take enforcement action itself in respect of the legislation of other member States.

26th January 1998

4   S.I. 1995/1907 Back

5   OJ No. L189, 20.7.90, p.1 as corrected by the corrigendum published in OJ No. L258, 22.9.90, p.35 as amended by Council Directive 93/68/EEC. Back

6   1972 c68. Back

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