The Energy Information Regulations 2011

Statutory Instruments

2011 No. 1524

Energy Conservation

The Energy Information Regulations 2011

Made

20th June 2011

Laid before Parliament

22nd June 2011

Coming into force

20th July 2011

The Secretary of State is a Minister designated(1) for the purposes of section 2(2) of the European Communities Act 1972(2) in relation to the environmental aspects of product design and makes these Regulations under the powers conferred by that section.

PART 1 Introductory

Citation and commencement

1.  These Regulations may be cited as the Energy Information Regulations 2011 and come into force on 20th July 2011.

Interpretation

2.—(1) In these Regulations—

“authorised person” means a person authorised by the market surveillance authority in accordance with regulation 5;

“the Directive” means Directive 2010/30/EU of the European Parliament and of the Council on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related products(3);

“EU measure” means, in relation to a product mentioned in column 1 of the table in Schedule 1, the corresponding EU measure referred to in column 2 of that table;

“local weights and measures authority” means in England, Wales and Scotland a local weights and measures authority within the meaning of section 69 of the Weights and Measures Act 1985(4);

“market surveillance authority” has the meaning given in regulation 4; and

“RAMS” means Regulation (EC) No 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93(5).

(2) Expressions not defined in paragraph (1) which are used in these Regulations and—

(a) in an EU measure;

(b) in the Directive; or

(c) in RAMS,

have the meaning they bear in that EU measure, Directive or RAMS.

Scope

3.—(1) These Regulations apply to energy-related products which have a significant direct or indirect impact on the consumption of energy and, where relevant, on other essential resources during use.

(2) These Regulations do not apply to—

(a) second-hand products;

(b) any means of transport for persons or goods;

(c) the rating plate or its equivalent affixed for safety purposes to products.

PART 2 Enforcement

Enforcement

4.—(1) The local weights and measures authority, and in relation to Northern Ireland the Department of Enterprise Trade and Investment, enforce regulation 8 (responsibilities of dealers), regulation 9 (information requirements) and RAMS.

(2) The Secretary of State enforces regulation 7 (responsibilities of suppliers), regulation 9, regulation 10 (misleading information) and RAMS.

(3) Each of these is referred to as a “market surveillance authority”.

Authorised persons

5.  A market surveillance authority may authorise in writing any person who appears suitable to act on its behalf to carry out any of its functions and to exercise any of the powers or duties conferred by these Regulations or RAMS.

Schedules

6.  The following have effect—

(a) Schedule 1 (EU measures);

(b) Schedule 2 (powers of entry and warrants);

(c) Schedule 3 (testing);

(d) Schedule 4 (civil sanctions).

PART 3 Responsibilities of suppliers and dealers

Responsibilities of suppliers

7.—(1) When placing on the market or putting into service products regulated by an EU measure, suppliers must—

(a) supply a label and a fiche which comply with these Regulations and the EU measure;

(b) produce technical documentation which is sufficient to enable the accuracy of the information contained in the label and the fiche to be assessed.

(2) The documentation in paragraph (1)(b) must include—

(a) a general description of the product;

(b) if relevant, the results of design calculations;

(c) if available, test reports including those carried out by the relevant notified organisations;

(d) if values are used for similar models, the references allowing identification of those models.

(3) Suppliers must—

(a) make the documentation available for inspection purposes for a period of at least 5 years beginning with the date the last product was manufactured;

(b) make available an electronic version of the documentation on request to the market surveillance authority and to the European Commission within 10 working days of receipt of a request by the market surveillance authority or the Commission;

(c) provide the labels free of charge to dealers;

(d) deliver labels promptly upon request from dealers;

(e) provide the fiche free of charge; and

(f) include a fiche in any product brochure.

(4) If the product brochures in paragraph (3)(f) are not provided by the supplier, the supplier must provide fiches in any literature provided with the product.

(5) A supplier must ensure that any information contained on any label or in any fiche is accurate.

(6) Suppliers are deemed to consent to the publication of the information provided on any label or fiche.

Responsibilities of dealers

8.—(1) Dealers must make the fiche available in the product brochure or any literature which accompanies the product when sold to end-users.

(2) When a product is displayed, dealers must attach the label in the clearly visible position specified in the EU measure.

PART 4 Information

Information requirements

9.—(1) Any person who offers any products regulated by an EU measure for sale, hire or hire-purchase or displays to end-users directly or indirectly by any means of distance selling, including the internet must bring to the attention of end-users information relating to the consumption of electric energy, and where relevant other essential resources during use, and any other supplementary information, by means of—

(a) the fiche; and

(b) the label related to the products,

in accordance with the EU measure.

(2) A person who builds in or installs a product must display such information if required by the EU measure.

(3) Any person who advertises a specific model of a product regulated by an EU measure must, when energy-related or price information is disclosed, include a reference to the energy efficiency class of the product as set out in the EU measure.

(4) Any person who provides technical promotional material to end-users which describes the specific technical parameters of a product regulated by an EU measure including technical manuals and manufacturers’ brochures whether printed or online must—

(a) provide end-users with information regarding the energy consumption of that product; or

(b) include a reference to the energy efficiency class of that product as set out in the EU measure.

Misleading information

10.  A person must not display any label, mark, symbol or inscription which does not comply with the requirements of the Directive, these Regulations or an EU measure if the display is likely to mislead or confuse end-users with respect to the consumption of energy or, where relevant, other essential resources during use.

PART 5 Offences and penalties

Offences and penalties

11.—(1) It is an offence for any person to contravene any of regulations 7 to 10.

(2) Any person guilty of an offence under paragraph (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

Obstruction etc.

12.—(1) It is an offence for any person—

(a) intentionally to fail to comply with any instruction given by an authorised person acting in pursuance of their powers or duties under these Regulations or RAMS;

(b) intentionally to obstruct an authorised person acting in pursuance of their powers or duties under these Regulations or RAMS;

(c) knowingly or recklessly to make a statement which is false or misleading in purported compliance with any requirement imposed under these Regulations or RAMS;

(d) without reasonable cause fail to give an authorised person any other assistance or information which that authorised person may reasonably require for the purposes of the exercise of their powers or duties under these Regulations or RAMS.

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

(3) In this regulation, “powers or duties” includes powers or duties exercisable by virtue of a warrant under Schedule 2.

Time limit for prosecution of offences

13.—(1) An offence under these Regulations may be tried by summary proceedings if—

(a) in England and Wales, the information is laid;

(b) in Northern Ireland, the complaint is made; or

(c) in Scotland, the proceedings are begun,

before the end of the period of 12 months beginning on the day after the date on which evidence which the market surveillance authority thinks is sufficient to justify the proceedings comes to the market surveillance authority’s knowledge.

(2) For the purposes of paragraph (1)—

(a) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to the market surveillance authority’s knowledge is to be conclusive evidence of that fact; and

(b) a certificate stating that matter and purporting to be so signed is to be treated as so signed unless the contrary is proved.

Bodies corporate

14.—(1) If an offence under these Regulations committed by a body corporate is proved—

(a) to have been committed with the consent or connivance of an officer, or

(b) to be attributable to any neglect on the part of the officer,

the officer, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) “Officer”, in relation to a body corporate, means—

(a) a director, manager, secretary or other similar officer of the body, or

(b) a person purporting to act in any such capacity.

(3) If the affairs of the body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as it applies to an officer of a body corporate.

(4) If an offence under these Regulations committed by a partnership in Scotland is proved—

(a) to have been committed with the consent or connivance of a partner, or

(b) to be attributable to any neglect on the part of the partner,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(5) In paragraph (4) “partner” includes a person purporting to act as a partner.

Recovery of expenses of enforcement

15.—(1) This regulation applies where a court convicts a person of an offence under these Regulations.

(2) The court may (in addition to any other order it may make as to costs or expenses) order the person convicted to reimburse the market surveillance authority for any expenditure which it or any authorised person has reasonably incurred in investigating the offence, including in purchasing, testing or examining any product, or any part of it, in respect of which the offence was committed.

PART 6 Revocations and review

Revocations

16.  The Regulations in column 1 of the table in Schedule 5 are revoked on the corresponding date in column 3 of that table.

Review

17.—(1) Before the end of each review period, the Secretary of State must—

(a) carry out a review of these Regulations;

(b) set out the conclusions of the review in a report; and

(c) publish the report.

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the Directive is implemented in other member States.

(3) The report must in particular—

(a) set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b) assess the extent to which those objectives are achieved; and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) In this regulation “review period” means—

(a) the period of 5 years beginning with the day on which these Regulations come into force; and

(b) subject to paragraph (5), each successive period of 5 years.

(5) If a report under this regulation is published before the last day of the review period to which it relates, the following review period begins with the day on which that report is published.

Henley

Parliamentary Under Secretary of State

Department for Environment, Food and Rural Affairs

20th June 2011

Regulation 6(a)

SCHEDULE 1 EU measures

1.  In relation to a product identified in column 1 of the following table, the requirements set out in the EU measure in column 2 apply from the date in column 3.

Column 1	Column 2	Column 3
Product	EU measure	Date from which EU measure applies
Tumble driers	Commission Directive 95/13/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household electric tumble driers(6)	20th July 2011
Household combined washer-driers	Commission Directive 96/60/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household combined washer-driers(7)	20th July 2011
Household lamps	Commission Directive 98/11/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household lamps(8)	20th July 2011
Household electric ovens	Commission Directive 2002/40/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household electric ovens(9)	20th July 2011
Air-conditioners	Commission Directive 2002/31/EC implementing Council Directive 92/75EEC with regard to the energy labelling of household air-conditioners(10)	20th July 2011
Household washing machines	Commission Directive 95/12/EEC implementing Council Directive 92/75/EEC with regard to energy labelling of household washing machines(11)	20th July 2011
	Commission Delegated Regulation (EU) No1061/2010 supplementing Directive 2010/30 of the European Parliament and of the Council with regard to energy labelling of household washing machines(12)	20th December 2011
Household dishwashers	Commission Directive 97/17/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household dishwashers(13)	20th July 2011
	Commission Delegated Regulation (EU) No 1059/2010 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of household dishwashers(14)	20th December 2011
Household refrigerators, freezers and their combinations	Commission Directive 94/2/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household refrigerators, freezers and their combinations(15)	20th July 2011
	Commission Delegated Regulation (EU) No 1060/2010 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of household refrigerating appliances(16)	30th November 2011
Televisions	Commission Delegated Regulation (EU) No 1062/2010 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of televisions(17)	30th November 2011

Regulation 6(b)

SCHEDULE 2 Powers of entry and warrants

Power to enter premises

1.—(1) An authorised person may enter premises, except any premises used wholly or mainly as a private dwelling house, at any reasonable hour for the purpose of enforcing these Regulations and RAMS.

(2) An authorised person must, if requested to do so, produce a duly authenticated authorisation document.

(3) An authorised person may—

(a) be accompanied by—

(i) such other persons as the authorised person considers necessary,

(ii) any representative of the European Commission; and

(b) bring on to the premises such equipment as the authorised person considers necessary.

Power to inspect, seize and detain products etc.

2.—(1) An authorised person may—

(a) in order to ascertain if there has been a breach of these Regulations or of RAMS, inspect any products, goods, records, documents or information;

(b) in order to ascertain if there has been a breach of these Regulations or of RAMS, require any person carrying on or employed in connection with a business to produce any products, goods, records, documents or information and take copies of—

(i) any document or record; or

(ii) any entry in any document or record;

(c) in order to ascertain by testing or otherwise if there has been a breach of these Regulations or of RAMS, and reasonably suspecting such breach, seize and detain any products, goods, records, documents or information;

(d) seize and detain any products, goods, records, documents or information which may be required as evidence in any proceedings under these Regulations or RAMS;

(e) for the purposes of exercising any powers or duties under these Regulations or RAMS, but only if and to the extent reasonably necessary in order to secure that the provisions of these Regulations or RAMS are observed, require any person having authority to do so to break open any container and, if that person does not comply or if there is no person present having authority to open it, break it open using reasonable force.

(2) An authorised person may require information stored electronically to be made available in printed form.

(3) An authorised person entering any premises whether under a power of entry under paragraph 1 or under a warrant under paragraph 3 must, if the occupier is present, give to the occupier or, if the occupier is absent, leave in a prominent place a notice—

(a) summarising the authorised person’s powers of seizure and detention of products, goods, records, documents and information;

(b) disclosing at which office of the market surveillance authority and within which hours a copy of these Regulations is available to be consulted.

(4) An authorised person entering any premises which are unoccupied or from which the occupier is temporarily absent must leave them as effectively secured against unauthorised entry as they were before entry.

(5) An authorised person exercising any power of seizure and detention must—

(a) give to the person against whom the power has been exercised a written notice stating what has been seized and detained;

(b) detain those things only for as long as is necessary for the market surveillance authority to ascertain whether a breach of these Regulations or of RAMS has occurred and if required present the evidence at court.

Warrants

3.—(1) A justice of the peace may by signed warrant permit an authorised person or any other person to enter any premises in the exercise of the powers and duties under these Regulations or Article 19 of RAMS, if necessary by reasonable force, if the justice in England and Wales on sworn information in writing, in Northern Ireland on a complaint on oath, or in Scotland by evidence on oath is satisfied—

(a) that there are reasonable grounds to enter those premises for the purposes of enforcing these Regulations and RAMS; and

(b) that any of the conditions in paragraph 4 is met.

(2) Reference to a justice of the peace—

(a) in Scotland includes a sheriff;

(b) in Northern Ireland is a reference to a lay magistrate.

Conditions for warrants

4.  The conditions are—

(a) entry to the premises has been, or is likely to be, refused and notice of the intention to apply for a warrant has been given to the occupier;

(b) asking for admission to the premises, or giving such a notice, would defeat the object of the entry;

(c) entry is required urgently;

(d) the premises are unoccupied or the occupier is temporarily absent.

Duration of warrant

5.  A warrant under paragraph 3 is valid for one month.

Regulation 6(c)

SCHEDULE 3 Testing

Test purchases

1.  A market surveillance authority may, for the purpose of testing any product to ascertain whether any provision of these Regulations or RAMS has been breached, purchase, or authorise an officer of the market surveillance authority to purchase, any product.

2.—(1) If a product so tested fails to comply with an EU measure, the market surveillance authority may recover its testing costs from the person who placed it on the market for the first time.

(2) Costs include in particular—

(a) all the costs of purchasing and disposing of the product;

(b) all the administration and labour costs including third party testing costs throughout the testing period.

(3) The market surveillance authority is not entitled to recover any costs proven to have been incurred unnecessarily.

Notice of intent

3.—(1) If the market surveillance authority proposes to recover its testing costs it must serve a notice of what is proposed (a “notice of intent”) within 20 days of obtaining proof that the product has failed to comply with an EU measure.

(2) The notice of intent must include—

(a) a statement that the product has been tested and has failed to comply with an EU measure;

(b) details of the tests carried out;

(c) the amount to be paid;

(d) a detailed breakdown of the testing costs incurred; and

(e) information as to—

(i) the right to make representations and objections within 28 days beginning on the day on which the notice of intent was received;

(ii) the circumstances in which the market surveillance authority may not recover its costs.

Making representations and objections

4.  A person upon whom a notice of intent has been served may, within 28 days beginning on the day on which the notice was received, make written representations and objections to the market surveillance authority in relation to the proposed recovery of costs.

Final notice

5.—(1) Within 20 days following the end of the period for making representations and objections the market surveillance authority must decide whether to impose the requirements of the notice of intent with or without modifications.

(2) Where the market surveillance authority decides to impose a requirement, the notice imposing it (the “final notice”) must comply with paragraph 6.

Contents of final notice

6.  A final notice must include—

(a) a statement that the product has been tested and has failed to comply with an EU measure;

(b) details of the tests carried out;

(c) the amount to be paid and the period within which the payment must be made which must not be less than 28 days;

(d) a detailed breakdown of the testing costs incurred;

(e) information as to—

(i) how payment must be made;

(ii) the consequences of failing to comply with the notice within the specified period;

(iii) rights of appeal.

Appeal

7.—(1) Any appeal under this Schedule must be made to the First-tier Tribunal.

(2) The Tribunal must determine the standard of proof.

(3) A notice under this Schedule is suspended pending appeal.

(4) The Tribunal may, in relation to the imposition of a requirement or service of a notice—

(a) withdraw the notice;

(b) confirm the notice;

(c) vary the notice; or

(d) remit the decision whether to confirm the notice, or any matter relating to that decision, to the market surveillance authority.

Mode of recovery

8.  The market surveillance authority may recover the amount due under a final notice as if payable under a court order.

Guidance

9.—(1) The Secretary of State must publish guidance about the recovery of costs.

(2) The guidance must contain relevant information and the Secretary of State must update and revise the guidance where appropriate.

(3) The market surveillance authority must have regard to the guidance in exercising its functions.

(4) In this paragraph, relevant information is information about—

(a) the circumstances in which a final notice under this Schedule is likely to be imposed and when it is not likely to be imposed;

(b) how the costs of the test will be calculated;

(c) the matters likely to be taken into account by the market surveillance authority in determining the amount to be recovered; and

(d) the rights to make representations and objections and the rights of appeal.

Regulation 6(d)

SCHEDULE 4 Civil sanctions

PART 1 Power to impose civil sanctions

Market surveillance authority

1.  The market surveillance authority may impose a requirement upon a person to comply with a compliance notice, a stop notice, an enforcement undertaking or to pay a variable monetary penalty or non-compliance penalty (a “civil sanction”) as set out in this Schedule.

Non-compliant products

2.—(1) If the market surveillance authority ascertains that a product does not comply with all the relevant requirements set out in the Directive and the EU measure for the label and the fiche (the “relevant requirements”), the market surveillance authority must—

(a) require the supplier to make the product comply with the relevant requirements; and

(b) require the supplier to comply with any conditions imposed by the market surveillance authority.

(2) If the market surveillance authority has sufficient evidence that a product may not comply with the relevant requirements, the market surveillance authority must require the supplier to take steps aimed at ensuring compliance within a time frame to be specified by the market surveillance authority taking into account any damage caused.

(3) If a product continues to be non-compliant after the steps in sub-paragraph (1) or (2) have been taken, the market surveillance authority must—

(a) restrict or prohibit the placing of the product on the market or the putting of the product into service; or

(b) ensure the withdrawal of the product from the market.

Compliance notice

3.—(1) This paragraph applies where the market surveillance authority is satisfied beyond reasonable doubt that a person has committed an offence under regulation 11(1).

(2) The market surveillance authority may by notice (“a compliance notice”) impose on that person a requirement to take such steps as the market surveillance authority may specify, within such period as it may specify, to secure that the offence does not continue or recur.

(3) A compliance notice may not be imposed on more than one occasion in relation to the same offence.

Imposition of a variable monetary penalty

4.—(1) The market surveillance authority may by notice impose on any person in relation to an offence committed under regulation 11(1) a requirement to pay a monetary penalty to the market surveillance authority in such amount as it may determine (“a variable monetary penalty”).

(2) Before doing so the market surveillance authority must be satisfied beyond reasonable doubt that the person has committed the offence.

(3) A variable monetary penalty may not be imposed on more than one occasion in relation to the same act or omission.

(4) There is no limit to the amount of a variable monetary penalty.

(5) Before serving a notice relating to a variable monetary penalty the market surveillance authority may require the person on whom it is to be served to provide such information as is reasonable to establish the amount of any financial benefit arising as a result of the offence.

(6) The market surveillance authority may recover any variable monetary penalty imposed under this Schedule as if payable under order of the court.

Notice of intent

5.—(1) If the market surveillance authority proposes to serve a compliance notice or a variable monetary penalty under this Part, it must serve on that person a notice of what is proposed (a “notice of intent”).

(2) The notice of intent must include—

(a) the grounds for the proposed notice or penalty;

(b) the requirements of the notice and in the case of a penalty the amount to be paid;

(c) information as to—

(i) the right to make representations and objections within 28 days beginning with the day on which the notice of intent was received;

(ii) the circumstances in which the market surveillance authority may not impose the notice.

Making representations and objections

6.  A person on whom a notice of intent is served may within 28 days beginning with the day on which the notice was received make written representations and objections to the market surveillance authority in relation to the proposed imposition of a compliance notice or variable monetary penalty.

Third party undertakings

7.—(1) A person on whom a notice of intent is served may offer an undertaking as to action to be taken by that person (including the payment of a sum of money) to benefit any third party affected by the offence or non-compliance with an EU measure (“a third party undertaking”).

(2) The market surveillance authority may accept or reject such a third party undertaking.

(3) The market surveillance authority must take into account any third party undertaking that it accepts in its decision whether or not to serve a final notice and, if it serves a notice imposing a variable monetary penalty, the amount of the penalty.

Final notice

8.—(1) After the end of the period for making representations and objections, the market surveillance authority must decide whether to impose the requirements in the notice of intent, with or without modifications.

(2) Where the market surveillance authority decides to impose a requirement, the notice imposing it (the “final notice”) must comply with paragraph 9 or 10.

(3) The market surveillance authority may not impose a final notice on a person where the market surveillance authority is satisfied that the person would not, by reason of any defence, be liable to be convicted of the offence to which the notice relates.

Contents of final notice – compliance notice

9.  A final notice relating to a compliance notice must include information as to—

(a) the grounds for imposing the notice;

(b) what compliance is required and the period within which it must be completed;

(c) rights of appeal; and

(d) the consequences of failing to comply with the notice.

Contents of final notice - variable monetary penalty

10.  A final notice relating to a variable monetary penalty must include information as to—

(a) the grounds for imposing the penalty;

(b) the amount to be paid;

(c) how payment may be made;

(d) the period within which payment must be made which must be not less than 28 days;

(e) rights of appeal; and

(f) the consequences of failing to comply with the notice.

Appeals against a final notice

11.—(1) The person receiving the final notice may appeal against it.

(2) The grounds for appeal are—

(a) that the decision was based on an error of fact;

(b) that the decision was wrong in law;

(c) in the case of a variable monetary penalty, that the amount of the penalty is unreasonable;

(d) in the case of a non-monetary requirement, that the nature of the requirement is unreasonable;

(e) that the decision was unreasonable for any other reason;

(f) that the decision was wrong for any other reason.

Criminal proceedings

12.—(1) If—

(a) a compliance notice or variable monetary penalty is imposed on any person, or

(b) a third party undertaking is accepted from any person,

that person may not at any time be convicted of the offence under regulation 11(1) in respect of the act or omission giving rise to the compliance notice, variable monetary penalty or third party undertaking except in a case to which sub-paragraph (2) applies.

(2) This sub-paragraph applies to a case where in relation to an offence under regulation 11(1)—

(a) a compliance notice is imposed on a person or a third party undertaking is accepted from a person;

(b) no variable monetary penalty is imposed upon that person, and

(c) the person fails to comply with the compliance notice or third party undertaking.

(3) Criminal proceedings for offences triable summarily to which a compliance notice or third party undertaking in sub-paragraph (2) relate may be instituted at any time up to 6 months from the date when the market surveillance authority notifies the person that they have failed to comply with that compliance notice or third party undertaking.

PART 2 Stop notices

Stop notices

13.—(1) The market surveillance authority may serve a notice (a “stop notice”) on any person—

(a) in relation to an offence committed under regulation 11(1), prohibiting a person from carrying on an activity specified in the notice until the person has taken the steps specified in the notice;

(b) where the market surveillance authority is of the opinion that a person is likely to make available on the market a product which does not comply with an EU measure, a requirement to take such steps as the market surveillance authority may specify within such period as it may specify, to secure that its being made available on the market is prohibited or restricted.

(2) A stop notice may only be served where the person is—

(a) carrying on the activity, and

(b) the market surveillance authority reasonably believes that—

(i) the activity as carried on by that person involves or is likely to involve the commission of an offence under regulation 11(1); or

(ii) that person is likely to make available on the market a product which does not comply with an EU measure.

(3) The steps referred to in sub-paragraph (1)(a) and (b) must be steps to eliminate the risk of the offence being committed, or of products which do not comply with an EU measure being made available on the market.

Contents of a stop notice

14.  A stop notice must include information as to—

(a) the grounds for serving the stop notice and the activity which is prohibited;

(b) the steps the person must take to comply with the stop notice;

(c) the consequences of non-compliance;

(d) the period within which the activity must stop.

Appeals

15.—(1) The person on whom a stop notice is served may appeal against the decision to serve it.

(2) The grounds for appeal are—

(a) that the decision was based on an error of fact;

(b) that the decision was wrong in law;

(c) that the decision was unreasonable;

(d) that any step specified in the notice is unreasonable;

(e) that the person has not committed the offence and would not have committed it had the stop notice not been served;

(f) that the person was not likely to make a product available on the market and would not have made it available on the market if the stop notice had not been served;

(g) that the person would not, by reason of any defence, have been liable to be convicted of the offence had the stop notice not been served;

(h) that the decision was wrong for any other reason.

Completion certificates

16.—(1) The market surveillance authority must issue a certificate (a “completion certificate”) if, after service of a stop notice, the market surveillance authority is satisfied that the person has taken the steps specified in the notice.

(2) A stop notice ceases to have effect on the issue of a completion certificate.

(3) A person on whom a stop notice is served may at any time apply for a completion certificate.

(4) The market surveillance authority must decide whether to issue a completion certificate within 14 days of the application.

(5) A person on whom the stop notice was served may appeal against a decision not to issue a completion certificate on the grounds that—

(a) the decision was based on an error of fact;

(b) the decision was wrong in law;

(c) the decision was unfair or unreasonable;

(d) the decision was wrong for any other reason.

Compensation

17.—(1) The market surveillance authority must compensate a person for loss suffered as the result of the service of the stop notice or the refusal of a completion certificate if a person has suffered loss as a result of the notice or refusal and—

(a) a stop notice is subsequently withdrawn or amended by the market surveillance authority because the decision to serve it was unreasonable or any step specified in the notice was unreasonable;

(b) a person successfully appeals against the stop notice and the First-tier Tribunal finds that the service of the notice was unreasonable; or

(c) a person successfully appeals against the refusal of a completion certificate and the Tribunal finds that the refusal was unreasonable.

(2) A person may appeal against a decision not to award compensation or the amount of compensation on the grounds that—

(a) the market surveillance authority’s decision was unreasonable;

(b) the amount offered was based on incorrect facts;

(c) the decision was wrong for any other reason.

Offences

18.  If a person on whom a stop notice is served does not comply with it within the time limit specified in the notice, the person is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

PART 3 Enforcement undertakings

Enforcement undertakings

19.  The market surveillance authority may accept a written undertaking (an “enforcement undertaking”) given by a person to the market surveillance authority to take such action as may be specified in the undertaking within such period as may be specified where the market surveillance authority has reasonable grounds to suspect that the person has committed an offence under regulation 11(1).

Contents of an enforcement undertaking

20.—(1) An enforcement undertaking must specify—

(a) action to be taken by the person to secure that the offence does not continue or recur;

(b) action to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed; or

(c) action (including the payment of a sum of money) to be taken by the person to benefit any person affected by the offence.

(2) It must specify the period within which the action must be completed.

(3) It must include—

(a) a statement that the undertaking is made in accordance with this Schedule;

(b) the terms of the undertaking;

(c) information as to how and when a person is considered to have discharged the undertaking.

(4) The enforcement undertaking may be varied, or the period within which the action must be completed may be extended, if both parties agree in writing.

Acceptance of an enforcement undertaking

21.  If the market surveillance authority has accepted an enforcement undertaking then, unless the person from whom the undertaking is accepted has failed to comply with the undertaking or any part of it—

(a) that person may not at any time be convicted of the offence in respect of the act or omission to which the undertaking relates; and

(b) the market surveillance authority may not impose on that person a compliance notice, stop notice or variable monetary penalty in respect of that act or omission.

Discharge of an enforcement undertaking

22.—(1) If the market surveillance authority is satisfied that an enforcement undertaking has been complied with it must issue a certificate to that effect.

(2) The market surveillance authority may require the person who has given the undertaking to provide sufficient information to determine that the undertaking has been complied with.

(3) The person who gave the undertaking may at any time apply for such a certificate.

(4) The market surveillance authority must decide whether to issue such a certificate, and give written notice of the decision to the applicant, within 14 days of such an application.

(5) The person to whom the notice is given may appeal against a decision not to issue a certificate on the grounds that the decision—

(a) was based on an error of fact;

(b) was wrong in law;

(c) was unfair or unreasonable;

(d) was wrong for any other reason.

Inaccurate, incomplete or misleading information

23.—(1) A person who has given inaccurate, misleading or incomplete information in relation to an enforcement undertaking is regarded as not having complied with it.

(2) The market surveillance authority may by notice in writing revoke a certificate issued under paragraph 22 if it was issued on the basis of inaccurate, incomplete or misleading information.

Non-compliance with an enforcement undertaking

24.—(1) If a person does not comply with an enforcement undertaking the market surveillance authority may in the case of an offence committed under regulation 11(1)—

(a) serve a compliance notice, non-compliance penalty, stop notice or variable monetary penalty; or

(b) bring criminal proceedings.

(2) If a person has complied partly but not fully with an undertaking, that partial compliance must be taken into account in the imposition of any criminal or other sanction on the person.

(3) Criminal proceedings for offences to which an enforcement undertaking relates may be instituted at any time up to 6 months from the date when the market surveillance authority notifies the person that they have failed to comply with that undertaking.

PART 4 Non-compliance penalties

Non-compliance penalties

25.—(1) If a person fails to comply with a compliance notice, stop notice, third party undertaking or enforcement undertaking, irrespective of whether a variable monetary penalty was also imposed, the market surveillance authority may serve a notice on that person imposing a monetary penalty (“a non-compliance penalty”).

(2) The amount of the non-compliance penalty must be determined by the market surveillance authority, and must be a percentage of the costs of fulfilling the remaining requirements of the notice, third party undertaking or enforcement undertaking.

(3) The percentage must be determined by the market surveillance authority having regard to all the circumstances of the case and may, if appropriate, be 100%.

(4) The notice must include information as to—

(a) the grounds for imposing the non-compliance penalty;

(b) the amount to be paid;

(c) how payment must be made;

(d) the period in which payment must be made, which must not be less than 28 days;

(e) rights of appeal;

(f) the consequences of failure to make payment in the specified period;

(g) any circumstances in which the market surveillance authority may reduce the amount of the penalty.

(5) If the requirements of the compliance notice, stop notice, third party undertaking or enforcement undertaking are fulfilled before the time set for payment of the non-compliance penalty, the penalty is not payable.

(6) The person on whom the notice imposing the non-compliance penalty is served may appeal against it.

(7) The grounds of appeal are—

(a) that the decision to serve the notice was based on an error of fact;

(b) that the decision was wrong in law;

(c) that the decision was unfair or unreasonable for any reason;

(d) that the amount of the penalty was unreasonable;

(e) that the decision was wrong for any other reason.

PART 5 Withdrawal and amendment

Withdrawing or amending a notice

26.  The market surveillance authority may at any time in writing—

(a) withdraw a notice imposing a variable monetary penalty or a notice imposing a non-compliance penalty notice or reduce the amount specified in the notice;

(b) withdraw a compliance notice or stop notice or amend the steps in order to reduce the amount of work necessary to comply with the notice.

PART 6 Appeals

Appeals

27.—(1) Any appeal under this Schedule must be made to the First-tier Tribunal.

(2) An appeal must be brought within 28 days of the date on which the notice or decision is received.

(3) In any appeal (except in relation to a stop notice) where the commission of an offence is an issue requiring determination, the market surveillance authority must prove that offence according to the same burden and standard of proof as in a criminal prosecution.

(4) In any other case the Tribunal must determine the standard of proof.

(5) All notices (other than stop notices) are suspended pending appeal.

(6) The Tribunal may, in relation to the imposition of a requirement or service of a notice—

(a) withdraw the requirement or notice;

(b) confirm the requirement or notice;

(c) vary the requirement or notice;

(d) take such steps as the market surveillance authority could take in relation to the act or omission giving rise to the requirement or notice;

(e) remit the decision whether to confirm the requirement or notice, or any matter relating to that decision, to the market surveillance authority.

PART 7 Guidance and publicity

Guidance as to use of civil sanctions

28.—(1) The market surveillance authority must publish guidance about its use of civil sanctions.

(2) The market surveillance authority must revise and update the guidance where appropriate.

(3) The market surveillance authority must have regard to the guidance or revised and updated guidance in exercising its functions.

(4) In the case of guidance about compliance notices, stop notices, variable monetary penalties and non-compliance penalties the guidance must contain information as to—

(a) the circumstances in which the civil sanction is likely to be imposed; and

(b) the circumstances in which it is not likely to be imposed.

(5) In the case of guidance about variable monetary penalties and non-compliance penalties, the guidance must contain information about—

(a) the matters likely to be taken into account by the market surveillance authority in determining the amount of the penalty (including voluntary reporting by a person of their own non-compliance); and

(b) rights to make representations and objections and rights of appeal.

(6) In the case of guidance about enforcement undertakings the guidance must contain information as to—

(a) the circumstances in which the market surveillance authority is likely to accept an enforcement undertaking; and

(b) the circumstances in which the market surveillance authority is not likely to accept an enforcement undertaking.

Consultation on guidance

29.  The market surveillance authority must consult such persons as it considers appropriate before publishing any guidance or revised guidance.

Publication of enforcement action

30.—(1) The market surveillance authority must from time to time publish—

(a) the cases in which civil sanctions have been imposed;

(b) where the civil sanction is a compliance notice, stop notice or variable monetary penalty, the cases in which a third party undertaking has been accepted;

(c) cases in which an enforcement undertaking has been entered into.

(2) In sub-paragraph (1)(a) the reference to cases in which civil sanctions have been imposed does not include cases where the sanction has been imposed but overturned on appeal.

(3) This paragraph does not apply in cases where the market surveillance authority considers that publication would be inappropriate.

Regulation 16

SCHEDULE 5 Revocations

	Column 1	Column 2	Column 3
	Regulations revoked	References	Date of revocation
1	Energy Information (Tumble Driers) Regulations1996	S.I. 1996/601	20th July 2011
2	Energy Information (Combined Washer-driers) Regulations 1997	S.I. 1997/1624	20th July 2011
3	Energy Information (Lamps) Regulations 1999	S.I. 1999/1517	20th July 2011
4	Energy Information (Household Electric Ovens) Regulations 2003	S.I. 2003/751	20th July 2011
5	Energy Information (Household Air Conditioners) (No 2) Regulations 2005	S.I. 2005/1726	20th July 2011
6	Energy Information (Washing Machines) Regulations 1996	S.I. 1996/600	20th December 2011
7	Energy Information (Washing Machines) (Amendment) Regulations 1997	S.I. 1997/803	20th December 2011
8	Energy Information (Dishwashers) Regulations 1999	S.I. 1999/1676	20th December 2011
9	Energy Information (Household Refrigerators and Freezers) Regulations 2004	S.I. 2004/1468	30th November 2011
10	Energy Information (Miscellaneous Amendment) Regulations 2001	S.I. 2001/3142	20th December 2011
11	Energy Information (Miscellaneous Amendment) Regulations 2009	S.I. 2009/2559	20th December 2011

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement the requirements of Directive 2010/30/EU of the European Parliament and of the Council on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related products (OJ L 153, 18.6.2010, p1). They also implement elements of the market surveillance Regulation (EC) No 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (“RAMS”) (OJ L 128 13.8.2008, p 30). They give effect to any EU measures which are made pursuant to the Directive.

Regulation 3 provides that the Regulations apply to energy-related products which have a significant direct or indirect impact on the consumption of energy and other resources. Regulation 4 provides for enforcement. Regulation 5 provides that the market surveillance authority may authorise any suitable person to act for it.

Regulation 7 sets out the requirements which must be met by a supplier when supplying a product. Regulation 8 sets out the responsibilities of dealers when selling a product.

Regulation 9 provides that when products are offered for sale or hire directly or indirectly information about the energy consumption of a product must be brought to the attention of the end-user and made available as required by the EU measure set out in Schedule 1.

Regulation 10 prohibits the display of labels, marks, symbols or inscriptions which do not comply with these Regulations which would mislead or confuse end-users about the consumption of energy or other resources during use. Regulations 11 to 15 set out offences, penalties and related matters.

Regulation 17 requires the Secretary of State to review the operation and effect of these Regulations and publish a report within 5 years after they come into force and within every 5 years after that. Following a review it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke the Regulations or to amend them.

Schedule 2 provides for powers of entry, search and seizure and the procedure for obtaining a warrant. Schedule 3 provides that the market surveillance authority may buy and test products to ensure compliance and recover the costs of testing non-compliant products from suppliers. Schedule 4 provides for civil sanctions which the market surveillance authority may impose in relation to an offence committed under regulation 11.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available at the Department for Business Innovation & Skills, 1 Victoria Street, London, SW1H 0ET and is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk

(1)

S.I.2010/1522.

(2)

1972 c. 68.

(3)

OJ No L 153, 18.6.2010, p 1.

(4)

1985. c. 72.

(5)

OJ No L 218, 13.8.2008, p 30.

(6)

OJ No L 136, 21.06. 1995, p 28.

(7)

OJ No L 266, 18.10. 1996, p 1.

(8)

OJ No L 71, 10.03.1998, p 1.

(9)

OJ No L 128, 15.05.2002, p 45.

(10)

OJ No L 86 03.04.2002, p 26.

(11)

OJ No L 136, 21.06.1995, p1, as last amended by Commission Directive 96/89/EC of 17 December 1996 of the European Parliament and of the Council (OJ No L 338, 28.12.1996, p 85). Commission Directive 95/12 EEC of 23 May 1995 is prospectively repealed on 20 December 2011 by Commission Delegated Regulation (EU) No 1061/2010, supplementing Directive 2010/30 of the European Parliament and of the Council, with regard to the energy labelling of household washing machines.

(12)

OJ No L 314, 30.11.2010, p 47.

(13)

OJ No L 118, 07/05/1997, p 1, as last amended by Commission Directive 1999/9/EC of the European Parliament and of the Council (OJ No L 56, 04.03.1999, p 46). Commission Directive 97/17/EC of 16 April 1997 prospectively repealed on 20 December 2011 by Commission Delegated Regulation (EU) No 1059/2010, supplementing Directive 2010/30/EU of the European Parliament and of the Council, with regard to the energy labelling of household dishwashers.

(14)

OJ No L 314, 30.11.2010, p 1.

(15)

OJ No L 45, 17.2.1994, p 1, as last amended by Commission Directive 2003/66/EC of the European Parliament and of the Council (OJ No L 170, 9.7.2003, p10). Commission Directive 94/2/EC of 21 January 1994 is prospectively repealed on 30 November 2011 by Commission Delegated Regulation (EU) 1060/2010, supplementing Directive 2010/30 EU of the European Parliament and of the Council, with regard to the energy labelling of household refrigerating appliances.

(16)

OJ No L 314, 30.11.2010, p 17.

(17)

OJ No L 314, 30.11.2010, p 64.