UK Offence Report

Implementation of the CE Marking Directive

regulation 7 of The Telecommunications Terminal Equipment (Amendment and Extension) Regulations 1994

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

4 This regulation does not apply where it is found that terminal equipment bearing the CE marking and properly used in accordance with the purpose intended by the manufacturer does not comply with the relevant essential requirements, ; and

e for regulation 73, there shall be substituted the following regulation— Misuse of the CE marking etc 73

1 Any person who affixes the CE marking or the connection symbol, or the non-connection symbol, or any other inscription or marking in contravention of regulation 10(2) or 12(1) or (2) above, shall be guilty of an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a manufacturer
Conduct
selling or supplying something the instrument restricts
Fault element
Strict liability
Burden of proof
Legal burden on the defendant

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a manufacturer meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

4 This regulation does not apply where it is found that terminal equipment bearing the CE marking and properly used in accordance with the purpose intended by the manufacturer does not comply with the relevant essential requirements, ; and e for regulation 73, there shall be substituted the

What would breach regulation 7?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a manufacturer affixes the CE marking or the connection symbol, or the non-connection symbol, or any other inscription or marking in contravention of regulation 10(2) or 12(1) or (2) above.
  2. Selling the goods under the Telecommunications Terminal Equipment (Amendment and Extension) Regulations 1994 where the instrument prohibits the sale outright.
  3. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  4. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
7 December 1994
In force from
1 January 1995
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations amend and extend the application of the Telecommunications Terminal Equipment Regulations 1992 (S. I. No.2423; “the TTE Regulations”), which implemented Council Directive 91/263/EEC on the approximation of the laws of the Member States concerning telecommunications terminal equipment, including the mutual recognition of their conformity (“the TTE Directive”). Part II of these Regulations amends the TTE Regulations— a to make reference to their application to the European Economic Area (EEA) (regulation 3(c)); b to widen the definition of connection-capable equipment in regulation 4 of the TTE Regulations to effectively extend the application of regulation 12, which allows the CE mark to be affixed to equipment which is capable of, but not intended for, connection to the public telecommunications network, to all such equipment pursuant to Article 2 of the TTE Directive (regulation 4); and c to allow for the affixation of the rounded style CE mark as an alternative to the mark provided for in Schedule 2 to the TTE Regulations (regulation 5); and d to allow the Secretary of State to approve certain types of terminal equipment (regulation 6). Part III of these Regulations implements the provisions of Council Directive 93/68/EEC (the “CE Marking Directive”; which provides for the replacement of the CE mark with the CE marking) which amend the TTE Directive. Article 11 of the CE Marking Directive sets out the particular amendments to the TTE Directive; these are implemented by regulation 7. Article 14 provides for a transitional period until 1st January 1997 during which a manufacturer or his authorised representative may elect to apply either the CE marking or the CE mark; regulation 8 disapplies the amendments made by regulation 7 where the CE mark is applied. Part IV of these Regulations implements the provisions of Council Directive 93/97/EEC supplementing Directive 91/263/EEC in respect of satellite earth station equipment (the “SESE Directive”) except as described below. The TTE Regulations (as amended by Parts II and III of these Regulations, save that the transitional period during which the CE mark may be affixed does not apply) are extended with certain modifications to satellite earth station equipment. In extending the TTE Directive to such equipment, Article 4.4 of the SESE Directive provides for electromagnetic compatibility (EMC) requirements specific to such equipment to be imposed under Article 4(c) of the TTE Directive. Pursuant to Article 2.2 of Council Directive 89/336/EEC (the “EMC Directive”), the EMC Directive is therefore disapplied to such specific requirements. Regulation 6(2) of the Electromagnetic Campatibility (Amendment) Regulations 1994 (S. I. No.3080) substitutes a new regulation 27 of the Electromagnetic Compatibility Regulations 1992 (S. I. No.2372) disapplying the latter Regulations to these specific requirements. Article 8.3 of the SESE Directive (which disapplies the type approval procedure for radiocommunication transmission apparatus in Article 10.5 of the Council Directive 89/336/EEC in respect of satellite earth station equipment) is implemented by regulation 6(3) of S. I.1994/3080.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source