UK Offence Report

Misuse of the CE marking

regulation 49(2) of The Electromagnetic Compatibility Regulations 2006 (revoked)

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

2 Any person who issues an EC declaration of conformity in relation to apparatus in contravention of regulation

22 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 This is the text as originally made; later amendments are not shown here.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 person
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

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 person 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 states no defence, so the prosecution bears the burden on every element of the offence.

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

What would breach regulation 49(2)?

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. Doing the thing the provision prohibits under the Electromagnetic Compatibility Regulations 2006, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

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

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

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

The Ministry of Justice records offences under this instrument against offence code 19695 — 19695 - Summary offences under regulation 46, 49, 50(1) or 51 of Electromagnetic Compatibility Regulations 2006. That code may cover several provisions of the instrument, so a count against it is not a count of prosecutions under this provision alone.

No published per-offence figure was found for this provision. Offences created by statutory instrument very largely do not have their own code in the MoJ’s Outcomes by Offence data tool. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
18 December 2006
In force from
Not determined
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 implement Directive 2004/108/EC of the European Parliament and of the Council on the approximation of the laws of member States relating to electromagnetic compatibility and repealing Directive 89/336/EEC (“the EMC Directive”) (OJ No. L390, 31.12.04, p.24). They revoke and replace the Electromagnetic Compatibility Regulations 2005 (SI 2005/281) (“the 2005 Regulations”) which implemented the EMC Directive. Part I provides that the Regulations, with the exception of regulations 1, 3, 24 and 25 and Schedule 5, come into force on 20th July 2007. Those regulations come into force on 20th January 2007. Regulation 2 revokes the 2005 Regulations and provides for the disapplication of regulations made under Section 10 of the Wireless Telegraphy Act 1949 listed in Schedule 1 to the extent that these Regulations impose electromagnetic compatibility requirements (excluding radio frequency planning requirements) which must be complied with if apparatus to which the Regulations apply is to be supplied or taken into service and used for the purpose for which it was intended. Regulations 4 and 5 impose essential requirements concerning the electromagnetic compatibility of equipment (apparatus and fixed installations) which must be complied with if such equipment is to be placed on the market or put into service, or both. Part II provides for the application of the Regulations. The Regulations do not apply to a fixed installation put into service before 20th July 2007 unless it is modified after that date in a way that may affect its electromagnetic compatibility (regulation 6). Regulations 8 – 14 and Schedule 4 set out the exclusions to the application of the Regulations. Regulation 17 provides that the essential requirements do not apply to the placing on the market of apparatus and the putting into service of apparatus placed on the market before 20th July 2009 where a declaration of conformity has been issued in respect of such apparatus on or before 19th July 2007 in accordance with the provisions of Articles 10.1 or 10.2 of Directive 89/336/EEC as implemented in the UK. Part III sets out the general requirements relating to apparatus. Regulation 15 provides that apparatus may not be placed on the market unless the requirements set out in that regulation have been complied with. Regulation 16 provides that apparatus may not be put into service unless the essential requirements are complied with when it is properly installed, maintained and used for its intended purpose. Regulation 18 provides that compliance can be demonstrated by the internal production control procedure set out in regulation 19 or in addition through the appointment of a notified body pursuant to regulation 20. Regulation 21 sets out provisions relating to the CE marking including the requirements for properly affixing the CE marking. Regulation 22 sets out the provisions relating to the issue of an EC declaration of conformity. Regulation 23 provides for the retention of certain documents by the responsible person. Part IV sets out the provisions relating to the appointment and functions of United Kingdom notified bodies. Part V sets out the general requirements relating to the putting into service of fixed installations. These are specified in regulation 35. Regulation 34 provides for an exemption from compliance with the requirements set out in regulation 15, 16 and 23 for apparatus intended for incorporation into a fixed installation and otherwise not commercially available, subject to compliance with the provisions of that regulation. Regulation 36 relates to provision of evidence of compliance with the Regulations. Part VI sets out provisions relating to enforcement of the Regulations. These include the appointment of enforcement authorities (regulation 37) and their powers to make test purchases, search, seize and detain and require production of documents and information (regulations 38 to 45). Regulation 41 makes provision for appeals against detention of apparatus etc and regulation 44 makes provision in respect of appeals against suspension notices. Regulations 46 to 51 set out the offences under the Regulations. Regulation 52 provides for a defence of due diligence and regulation 54 provides for third party liability in certain circumstances. Regulation 54 extends the time limit in the Magistrates Courts Act 1980 and the Criminal Procedure (Scotland) Act 1995 for the commencement of summary proceedings. Regulations 56 to 60 set out the powers of the court including power to require a matter to be remedied, power of forfeiture and recovery of costs of enforcement. Part VII makes provision in respect of miscellaneous matters relating to service of documents (regulation 61), duty to inform the Secretary of State of certain actions (regulation 62) and savings for certain privileges and actions taken under other enactments (regulations 63 and 64). Regulation 65 amends The Enterprise Act 2002 (Part 9 Restrictions on Disclosure of Information) (Specification) Order 2004 to replace the reference to the 2005 Regulations with the reference to these Regulations in Schedule 1 of that Order. A Regulatory Impact Assessment (RIA) in respect of these Regulations is available and a copy can be obtained from SDRD 151 Buckingham Palace Road, London SW1 – 9SS or from the website at http://www.dti.gov.uk/innovation/strd/ecdirect/page12469.html. As these Regulations transpose the EMC Directive, a transposition note (TN) setting out how the Government has transposed the EMC Directive into United Kingdom law has been prepared. Copies of the RIA and TN are available from SDRD as above. Copies of these documents have been placed in the libraries of both Houses of Parliament.

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