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

(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;

“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;

“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.

(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.

(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.

(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”.

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.

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).

(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.

(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.

(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.

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.

(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.

(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.

(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.

(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.

(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.

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

(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

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.

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.

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.

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