Memorandum from the Department of Trade
COMMERCE (EC DIRECTIVE)
REGULATIONS 2002 (S.I. 2002/2013)
1. The Committee has requested a memorandum on the
(1) Explain the intended effect of regulation
3(2) and, in particular, the words "or in exercise of a power
to legislate after that date".
(2) Regulation 4(6) refers to new criminal offences
created by these Regulations. Identify the provisions which create
2. The intended effect of regulation 3(2) is that
the Regulations should not have prospective effect on future legislation.
The policy is that separate provision should be made for such
legislation. The Regulations refer specifically to "Acts
passed on or after the date these Regulations are made" in
order to ensure that future primary legislation is not affected.
It was considered that this was necessary, given that these Regulations
are made under section 2(2) of the European Communities Act 1972,
since, particularly in the light of the decision in Thoburn v.
Sunderland City Council  EWHC Admin 195, a reference to
"Acts" might be taken to include future Acts. Having
done so, it was then necessary to address the issue of subordinate
3. The words "or in exercise of a power to legislate
after that date" (which reflect the wording of paragraph
1(1)(c) of Schedule 2 to the European Communities Act 1972) are
intended to deal with enactments contained in statutory instruments
and other forms of subordinate legislation, including subordinate
legislation made after the making of the Regulations under an
Act existing at that date. The intention is to distinguish between
legislative acts and executive acts, such as the grant of licences.
4. The Department acknowledges that there is an error
in regulation 3(2) in that at present it is not grammatically
correct. The words "relation to the" are missing before
"exercise". The Department proposes to bring forward
amending regulations as soon as possible.
5. The provision which has, or may have, the effect
of creating new criminal offences is regulation 4(1). It has an
effect on existing criminal offences in other legislation by applying
the law of the United Kingdom to the activities of UKbased
service providers even if those activities would, apart from the
Directive and the Regulations, be regarded as being carried on
outside the UK and therefore not subject to UK law. Section 2(2)
of the European Communities Act 1972 does not permit the creation,
by secondary legislation, of a new offence which is subject to
a penalty in excess of those set out in regulation 4(6). Arguably,
the Regulations will result in the creation of "new"
offences. Regulation 4(6) is intended to avoid the creation of
criminal offences under the Regulations whose penalties exceed
those permitted under section 2(2).
4 November 2002