The Market Surveillance (Northern Ireland) Regulations 2021

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Market Surveillance (Northern Ireland) Regulations 2021 and come into force on 16th July 2021.

(2) These Regulations extend to Northern Ireland only.

Interpretation

2.—(1) In these Regulations, “MSC Regulation” means Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011(1) as it has effect in EU law as amended from time to time.

(2) Expressions used in these Regulations which appear in the MSC Regulation have the same meaning as in the MSC Regulation.

(3) In these Regulations—

“the 1978 Order” means the Health and Safety at Work (Northern Ireland) Order 1978(2);

“the 1987 Act” means the Consumer Protection Act 1987(3);

“the 2011 Regulations” means the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011(4);

“district council” means a district council within the meaning of the Local Government Act (Northern Ireland) 1972(5);

“enforcer” means—

(a)

a district council in Northern Ireland;

(b)

the Secretary of State;

(c)

the Health and Safety Executive for Northern Ireland;

(d)

the Department for the Economy in Northern Ireland;

(e)

the Department for Agriculture, Environment and Rural Affairs in Northern Ireland;

(f)

the Department for Infrastructure in Northern Ireland;

(g)

the Department for Health in Northern Ireland;

(h)

the Department of Justice in Northern Ireland;

(i)

the Utility Regulator;

(j)

the Chief Constable of the Police Service of Northern Ireland;

(k)

Ofcom;

“enforcer” includes—

(a)

an officer of an enforcer;

(b)

where the enforcer’s legislation makes provision for—

(i)

the appointment of an inspector, an inspector so appointed by the enforcer; or

(ii)

the appointment or authorisation of a person to exercise market surveillance powers on the enforcer’s behalf, the person so appointed or authorised by the enforcer;

(c)

an enforcer (A) who does not have a power or a duty to enforce the enforcer’s legislation in respect of a particular product but with whom the enforcer in respect of that product (B) has entered into an agreement such that A will carry out an enforcement duty that applies to B;

“enforcer’s legislation” means the legislation provisions of which are referred to in regulation 6 and which is referred to in regulation 7, and in relation to a particular enforcer means—

(a)

legislation which, by virtue of a provision listed in regulation 6, the enforcer has a duty or power to enforce; and

(b)

in relation to an enforcer listed in Column 1 of the table in regulation 7, the legislation in the corresponding entry in Column 2;

“officer”, in relation to an enforcer, means—

(a)

an inspector appointed by the enforcer to exercise powers under Schedule 1, or authorised to do so;

(b)

an officer of the enforcer appointed by the enforcer to exercise powers under this Schedule 1, or authorised to do so;

(c)

an employee of the enforcer (other than an inspector or officer) appointed by the enforcer to exercise powers under Schedule 1, or authorised to do so; or

(d)

a person (other than an inspector, officer or employee of the enforcer) authorised by the enforcer to exercise powers under Schedule 1;

but references in these Regulations to an officer in relation to a particular power only cover a person within sub-paragraphs (a) to (d) if and to the extent that the person has been appointed or authorised to exercise that power;

“non-compliance” means—

(a)

a contravention of an obligation placed on an economic operator by, or under, the MSC Regulation or the enforcer’s legislation; or

(b)

a product presenting a risk.

Application

3.—(1) Subject to paragraphs (2) and (3), these Regulations apply in respect of a product that is subject to the Union harmonisation legislation.

(2) These Regulations do not apply to a product that is the subject of—

(a) Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of-life vehicles(6);

(b) Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment(7);

(c) Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC(8);

(d) Directive 2014/90/EU of the European Parliament and of the Council of 23 July 2014 on marine equipment and repealing Council Directive 96/98/EC(9); and

(e) Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91(10).

(3) These Regulations do not apply to any product to which no other Union harmonisation legislation applies, solely by reason of the product being subject to Regulation 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel(11).

Designation of market surveillance authorities

4.  For the purposes of the MSC Regulation, an enforcer is deemed to be a market surveillance authority for those products in respect of which it enforces the enforcer’s legislation.

Enforcement powers giving effect to Article 14(4) of the MSC Regulation

5.—(1) For the purposes of enforcing the MSC Regulation, an enforcer, in relation to a product, is the person who enforces the enforcer’s legislation in respect of that product.

(2) For the purposes of enforcing the MSC Regulation and the enforcer’s legislation, and to the extent that there are no specific provisions with the same objective in the enforcer’s legislation, the following have effect—

(a) Schedule 1 (investigatory powers);

(b) Schedule 2 (enforcement powers under the 1987 Act);

(c) Schedule 3 (enforcement powers under the 1978 Order);

(d) Schedule 4 (notices); and

(e) Schedule 5 (online interface notices).

(3) When enforcing the MSC Regulation or the enforcer’s legislation, an enforcer must exercise its powers in a manner consistent with Article 18 of the MSC Regulation.

Enforcer’s legislation

6.  The duties and powers of an enforcer are those arising under any of the following provisions—

(a) section 40(1)(b) of the Trade Descriptions Act 1968(12) (including as applied by—

(i) regulation 8(3) of the Crystal Glass (Descriptions) Regulations 1973(13) and

(ii) regulation 10(2) of the Footwear (Indication of Composition) Labelling Regulations 1995(14));

(b) Article 39 of the Weights and Measures (Northern Ireland) Order 1981(15);

(c) section 27(1) of the 1987 Act;

(d) regulation 5C of the Motor Fuel (Composition and Content) Regulations 1999(16);

(e) paragraph 1 of Schedule 13 to the Noise Emission in the Environment by Equipment for use Outdoors Regulations 2001(17);

(f) regulation 61 of the Medical Devices Regulations 2002(18);

(g) regulation 11(1) of the EC Fertilisers Regulations (Northern Ireland) 2006(19);

(h) regulation 3(1)(b) of the Persistent Organic Pollutants Regulations 2007(20);

(i) regulation 3(1) of, and the table at Schedule 1 to, the REACH Enforcement Regulations 2008 as they apply in Northern Ireland(21);

(j) paragraphs 4 and 5 of Schedule 5 to the Supply of Machinery (Safety) Regulations 2008(22);

(k) regulation 8 of the Batteries and Accumulators (Placing on the Market) Regulations 2008(23);

(l) regulation 4(4) and 5 of the Detergents Regulations 2010(24);

(m) regulations 10 and 12 of the Ecodesign for Energy-Related Products Regulations 2010(25);

(n) regulation 28 of the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations (Northern Ireland) 2010(26);

(o) regulation 4 of the Energy Information Regulations 2011(27);

(p) regulation 7 of the Ozone-Depleting Substances (Qualifications) Regulations (Northern Ireland) 2011(28);

(q) regulation 10(1) of the 2011 Regulations;

(r) regulation 11 of the Textile Products (Labelling and Fibre Composition) Regulations 2012(29);

(s) regulation 6(1)(c) of, and Schedule 4 to, the Volatile Organic Compounds in Paints, Varnishes and Vehicle Refinishing Products Regulations 2012(30);

(t) regulation 36 of the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012(31);

(u) regulations 8 and 17 of the Biocidal Products and Chemicals (Appointment of Authorities and Enforcement) Regulations (Northern Ireland) 2013(32);

(v) regulation 6(1) of the Cosmetic Products Enforcement Regulations 2013(33);

(w) regulation 53 of the Pyrotechnic Articles (Safety) Regulations 2015(34);

(x) regulation 6 of the Explosives (Appointment of Authorities and Enforcement) Regulations (Northern Ireland) 2015(35);

(y) regulation 18 of the Fluorinated Greenhouse Gases Regulations (Northern Ireland) 2015(36);

(z) regulation 7(1)(b) of the Packaging (Essential Requirements) Regulations 2015(37);

(aa) regulation 52 of the Electromagnetic Compatibility Regulations 2016(38);

(bb) regulation 55 of the Simple Pressure Vessels (Safety) Regulations 2016(39);

(cc) regulation 61 of the Lifts Regulations 2016(40);

(dd) regulation 41 of the Electrical Equipment (Safety) Regulations 2016)(41);

(ee) regulation 67 of the Pressure Equipment (Safety) Regulations 2016(42);

(ff) regulation 62 of the Non-automatic Weighing Instruments Regulations 2016(43);

(gg) regulation 67 of the Measuring Instruments Regulations 2016(44);

(hh) regulation 44 of, and Schedule 2 to, the Making Available on the Market and Supervision of Transfers of Explosives Regulations (Northern Ireland) 2016(45);

(ii) regulation 66 of the Recreational Craft Regulations 2017(46);

(jj) regulation 5 and Part 3 (enforcement specific to Northern Ireland) of the Control of Mercury (Enforcement) Regulations 2017(47);

(kk) regulation 56 of the Radio Equipment Regulations 2017(48);

(ll) regulation 52 of the Equipment and Protective Systems Intended for Use in Potentially Explosive Atmospheres Regulations (Northern Ireland) 2017(49);

(mm) regulation 4 of the Gas Appliances (Enforcement) and Miscellaneous Amendments Regulations 2018(50);

(nn) regulation 4 of the Personal Protective Equipment (Enforcement) Regulations 2018(51);

(oo) regulation 22 of the Cableway Installation Regulations 2018(52);

(pp) paragraph 17 of Schedule 3 to the Construction Products (Amendment etc.) (EU Exit) Regulations 2020(53);

(qq) regulation 3 of the Motor Vehicle Tyres (Labelling) (Enforcement) (Amendment) (EU Exit) Regulations 2020(54).

Table of enforcer’s legislation

7.  The following table applies for the purposes of paragraph (b) of the definition of enforcer’s legislation.

Enforcer	Legislation
Department for the Economy in Northern Ireland	The Measuring Container Bottles (EEC Requirements) Regulations 1977(55)
Department for the Economy in Northern Ireland	The Measuring Instruments (EEC Requirements) Regulations 1988 (56)
Department for the Economy in Northern Ireland	The Weights and Measures (Miscellaneous Foods) Order (Northern Ireland) 1989(57)
Department for the Economy in Northern Ireland	The Weights and Measures (Intoxicating Liquor) Order (Northern Ireland) 1989(58)
Department for the Economy in Northern Ireland	The Weights and Measures (Knitting Yarns) Order (Northern Ireland) 1989(59)
Department for the Economy in Northern Ireland	The Non-automatic Weighing Instruments (Use for Trade) Regulations (Northern Ireland) 2001(60)
The Secretary of State	The Motor Vehicles (Refilling of Air Conditioning Systems by Service Providers) Regulations 2009(61)
The Secretary of State	The Aerosol Dispensers Regulations 2009(62)
The Secretary of State	The Toys (Safety) Regulations 2011(63)
The Secretary of State	The Motorcycles (Type-Approval) Regulations 2018(64)
The Secretary of State	The Agricultural and Forestry Vehicles (Type-Approval) Regulations 2018(65)
The Secretary of State	The Non-Road Mobile Machinery (Type-Approval and Emission of Gaseous and Particulate Pollutants) Regulations 2018(66)
The Secretary of State	The Road Vehicles (Approval) Regulations 2020(67)
The Secretary of State or a district council in Northern Ireland	Chapter 3 of Part 4 of the Medicines and Medical Devices Act 2021(68)

Offences

8.  Schedule 6 (offences) has effect.

Amendment of Schedule 5 to the Consumer Rights Act 2015

9.—(1) Schedule 5 (investigatory powers etc.) to the Consumer Rights Act 2015(69) is amended as follows.

(2) In paragraph 8 (interpretation of other terms), for the definition of “the Regulation on Accreditation and Market Surveillance”, substitute—

““the Market Surveillance Regulation” means Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011.”.

(3) In paragraphs 13(6), 19(4)(b) and 23(6)(d)—

(a) for “Article 2(18) of the Regulation on Accreditation and Market Surveillance”, substitute “Article 3(4) of the Market Surveillance Regulation”; and

(b) for “Article 2(17) of that Regulation”, substitute “Article 3(3) of that Regulation”.

Paul Scully

Parliamentary Under Secretary of State

Department for Business, Energy & Industrial Strategy

15th July 2021