The Market Surveillance (Northern Ireland) Regulations 2021

Regulation 5(2)(d)

SCHEDULE 4 N.I. Notices

Compliance Notice N.I.

1.—(1) An enforcer may serve a compliance notice on an economic operator in respect of a product to which these Regulations apply if the enforcer has reasonable grounds for believing that there is non-compliance.

(2) A compliance notice must—

(a) require the economic operator on which it is served to—

(i) end the non-compliance within such period as may be specified in the notice; or

(ii) provide evidence, within such period as may be specified in the notice, demonstrating to the satisfaction of the enforcer that the non-compliance has not in fact occurred; and

(b) warn the economic operator that, if the non-compliance persists or if satisfactory evidence has not been produced under paragraph (a) within the period specified in the notice, further action may be taken in respect of the non-compliance by the economic operator.

(3) A compliance notice may include—

(a) directions as to the measures to be taken by the economic operator to secure compliance, including different ways of securing compliance;

(b) a requirement, where no other means are available to eliminate a serious risk, for the economic operator to remove content referring to the product from an online interface or to display a warning to end users when they access an online interface.

(4) Subject to sub-paragraph (5), an enforcer may revoke or vary a compliance notice by serving a notification on the economic operator.

(5) An enforcer may not vary a compliance notice so as to make it more restrictive for the economic operator or more onerous for the economic operator to comply.

Commencement Information

I1 Sch. 4 para. 1 in force at 16.7.2021, see reg. 1(1)

Withdrawal Notice N.I.

2.—(1) An enforcer may serve a withdrawal notice on an economic operator in respect of a product to which these Regulations apply if the enforcer has reasonable grounds for believing that there is non-compliance.

(2) A withdrawal notice must prohibit the economic operator from making the product available on the market without the consent of the enforcer.

(3) A withdrawal notice may require the economic operator to take action to alert end users to any risk presented by the product.

(4) A withdrawal notice may require the economic operator to keep the enforcer informed of the whereabouts of any product referred to in the notice.

(5) A consent given by the enforcer pursuant to a withdrawal notice, may impose such conditions on the making available on the market as the enforcer considers appropriate.

(6) Subject to sub-paragraph (7), an enforcer may revoke or vary a withdrawal notice by serving a notification on the economic operator.

(7) An enforcer may not vary a withdrawal notice so as to make it more restrictive for the economic operator or more onerous for the economic operator to comply.

(8) A withdrawal notice has effect in Northern Ireland.

Commencement Information

I2 Sch. 4 para. 2 in force at 16.7.2021, see reg. 1(1)

Recall notice N.I.

3.—(1) The enforcer may serve a recall notice on an economic operator in respect of a product to which these Regulations apply if the enforcer has reasonable grounds for believing that there is non-compliance.

(2) A recall notice must require the economic operator to use reasonable endeavours to organise—

(i) where relevant, the dismantling and safe disposal of the product, or

(ii) the return of the product from end-users to the relevant economic operator or another person specified in the notice.

(3) A recall notice may—

(a) require the recall to be effected in accordance with a code of practice;

(b) require the economic operator to—

(i) contact end-users in order to inform them of the recall, to the extent that it is practicable to do so;

(ii) publish a notice in such form and such manner as is likely to bring to the attention of end-users any risk the product poses and the fact of the recall; or

(iii) make arrangements for the collection or return of the product from end-users or its disposal;

(c) impose such additional requirements on the economic operator as are reasonable and practicable with a view to achieving the dismantling and safe disposal of the product or the return of the product.

(4) In determining what requirements to include in a recall notice, the enforcer must take into consideration the need to encourage economic operators and end-users to contribute to its implementation.

(5) A recall notice may only be issued by the enforcer where—

(a) other action which it may require under these Regulations would not suffice to address the non-compliance;

(b) the action being undertaken by the economic operator is unsatisfactory or insufficient to address the non-compliance;

(c) the enforcer has given not less than 10 days' notice to the economic operator of its intention to serve such a notice; and

(d) the enforcer has taken account of any advice obtained under sub-paragraph (6).

(6) An economic operator which has received notice from the enforcer of an intention to serve a recall notice may at any time prior to the service of the recall notice require the enforcer to seek the advice of such person as the Institute determines on the questions of—

(a) whether there is non-compliance; and

(b) whether the issue of a recall notice would be proportionate.

(7) Sub-paragraphs (5)(b), (c) and (d) do not apply in the case of a product presenting a serious risk requiring, in the view of the enforcer, urgent action.

(8) Where an economic operator requires the enforcer to seek advice under sub-paragraph (6), that economic operator is to be responsible for the fees, costs and expenses of the Institute and of the person appointed by the Institute to advise the enforcer.

(9) In this paragraph, “Institute” means the charitable organisation with registered number 803725 and known as the Chartered Institute of Arbitrators.

(10) A recall notice served by the enforcer may require the economic operator to keep the authority informed of the whereabouts of a product to which the recall notice relates, so far as the economic operator is able to do so.

(11) Subject to sub-paragraph (12), an enforcer may revoke or vary a recall notice by serving a notification on the economic operator.

(12) An enforcer may not vary a recall notice so as to make it more restrictive for the economic operator or more onerous for the economic operator to comply.

(13) A recall notice has effect in Northern Ireland.

Commencement Information

I3 Sch. 4 para. 3 in force at 16.7.2021, see reg. 1(1)

Appeals against notices N.I.

4.—(1) An application for an order to vary or set aside the terms of a notice may be made to the appropriate court—

(a) by the economic operator on whom the notice has been served; and

(b) in the case of a notice other than a recall notice, by a person having an interest in the product in respect of which the notice has been served.

(2) An application must be made before the end of the period of 21 days beginning with the day on which the notice was served.

(3) The appropriate court may only make an order setting aside a notice if satisfied that no contravention of—

(a) the MSC Regulation; or

(b) the enforcer's legislation;

has occurred in relation to the product to which the notice relates.

(4) On an application to vary the terms of a notice, the appropriate court may vary the terms of the notice as it considers appropriate.

(5) In this paragraph—

(a) the “appropriate court” is to be determined in accordance with paragraph 5 (appropriate court for appeals against notices); and

(b) “notice” means any of the following—

(i) a prohibition notice given under the 1987 Act as applied by Schedule 2 (enforcement powers under the 1987 Act);

(ii) a notice to warn given under the 1987 Act as applied by Schedule 2;

(iii) a suspension notice given under the 1987 Act as applied by Schedule 2;

(iv) a compliance notice served in accordance with paragraph 1 (compliance notice);

(v) a withdrawal notice served in accordance with paragraph 2 (withdrawal notice);

(vi) a recall notice served in accordance with paragraph 3 (recall notice).

Commencement Information

I4 Sch. 4 para. 4 in force at 16.7.2021, see reg. 1(1)

Appropriate court for appeals against notices etc and further appeals N.I.

5.—(1) The appropriate court for the purposes of paragraph 4 is—

(a) the court in which proceedings have been brought for an offence under Schedule 6 (offences);

(b) an industrial tribunal seized of appeal proceedings against a notice which has been served under or by virtue of these Regulations; or

(c) in any other case, a magistrates' court in Northern Ireland.

(2) A person aggrieved by an order made by a magistrates' court in Northern Ireland, pursuant to an application under paragraph 4 of this Schedule, or by a decision of such a court not to make such an order, may appeal against that order or decision to the county court.

Commencement Information

I5 Sch. 4 para. 5 in force at 16.7.2021, see reg. 1(1)