"appliance" means an appliance to which these Regulations apply by virtue of regulation 3 (application);

(a) if its electricity consumption is less than or equal to Emax (the maximum allowable electricity consumption value for its category, as defined in Part I of this Schedule) plus 15%; and

(b) in any other case, if the arithmetic mean of the electricity consumption of a further three appliances, measured in accordance with Part I of this Schedule, is less than or equal to Emax plus 10%.

    (2) Where the arithmetic mean of the electricity consumption of the three further appliances referred to in paragraph (1)(b) exceeds Emax plus 10%, the appliance shall be judged not to conform to the electricity consumption requirements of these Regulations.

regulation 4(1) (suppliers' duties in respect of appliances);

regulation 4(5)(b) (suppliers' duty in respect of documents etc. accompanying appliances);

regulation 5(1) (duty to draw up the EC declaration of conformity);

regulation 5(2) (prohibition of false declaration of conformity);

regulation 5(3) (duty to keep declaration of conformity with technical documentation);

regulation 6(1) (duty to establish technical documentation);

regulation 6(4) (duty to keep technical documentation etc. available for inspection);

regulation 6(5) (duty to furnish technical documentation etc. on request by enforcement authority);

regulation 7(a) (prohibition on affixing EC mark to non-complying appliance);

regulation 7(b) (prohibition on affixing misleading marking to appliance);

regulation 7(c) (prohibition on affixing to appliance any object etc. which reduces the visibility or legibility of the EC mark);

paragraph 5(1)(a) of this Schedule (prohibition of obstruction of authorised officer);

paragraph 5(1)(b) of this Schedule (prohibition of failure to comply with proper requirement of authorised officer);

paragraph 5(1)(c) of this Schedule (prohibition of failure without reasonable cause to give assistance or information to authorised officer);

paragraph 5(2)(a) of this Schedule (prohibition on knowingly making false statement to authorised officer);

paragraph 5(2)(b) of this Schedule (prohibition on recklessly making false statement to authorised officer);

paragraph 11(8) of this Schedule (prohibition of purported search and seizure by unauthorised person);

paragraph 15(1) of this Schedule (restrictions on disclosure of information).

    (2) A person guilty of the offence of contravening paragraph 15(1) shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale applicable to offences triable only summarily or, on conviction on indictment, to a fine.

    (3) A person guilty of any other offence specified in sub-paragraph (1) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Prosecution of offences
     2.  - (1) Proceedings for an offence under these Regulations shall not be instituted - 

(a) in England and Wales, except by an enforcement authority; and

(b) in Northern Ireland, except by or on behalf of the enforcement authority or the Director of Public Prosecutions for Northern Ireland.

    (2) Proceedings for an offence under these Regulations, other than proceedings for an offence under paragraph 15(1), shall not be instituted - 

(a) unless there has been served on the person charged a notice in writing of the date and nature of the offence alleged and, where the proceedings are in respect of one or more appliances of the same model tested on the same occasion under paragraph 10(3) (testing of purchased or seized appliances), of the results of the tests of all those appliances; or

(b) unless the said notice was served before the expiration of the period of thirty days beginning with the date when evidence which the person proposing to institute the proceedings considers is sufficient to justify a prosecution for the offence came to his knowledge; or

(c) after the expiration of the period - 


(i) of twelve months beginning with the date mentioned in paragraph (a) above, or

(ii) of three months beginning with the date mentioned in paragraph (b) above,

whichever first occurs.

    (3) For the purposes of sub-paragraph (2) - 

(a) a certificate of a person who institutes proceedings for an offence mentioned in that sub-paragraph which states that evidence came to his knowledge on a particular date shall be conclusive of that fact;

(b) a document purporting to be a certificate of such a person and to be signed by him or on his behalf shall be presumed to be such a certificate unless the contrary is proved; and

(c) such a certificate shall not be received in evidence - 


(i) unless the party against whom it is to be given in evidence has been served with a copy thereof not less than seven clear days before the hearing; or

(ii) if that party has, not less than three clear days before the hearing, served on the other party a notice requiring the attendance of the person issuing the certificate.

    (4) For the purposes of any proceedings for an offence in Scotland - 

(a) sub-paragraph (2) shall apply as if the word "instituted" read "brought";

(b) sub-paragraph (2)(b) shall apply as if the words "which the person proposing to institute the proceedings considers is sufficient to justify a prosecution for the offence came to his knowledge" read "sufficient in the opinion of the procurator fiscal to justify proceedings came to his knowledge";

(c) sub-paragraph (3)(a) shall apply as if the words "a person who institutes" read "the procurator fiscal who brings";

(d) sub-paragraph (3)(b) shall apply as if the words "such a person" read "the procurator fiscal"; and

(e) sub-paragraph (3)(c) shall apply as if the word "hearing" read "trial diet".

Defences
     3.  - (1) In proceedings against a person for an offence under these Regulations, it shall be a defence for that person to show that he believed that these Regulations did not apply and he had no reasonable grounds for believing that these Regulations might apply.

    (2) Subject to sub-paragraphs (3) to (5), in proceedings against a person for an offence under these Regulations it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence.

    (3) Where in any proceedings (which in Scotland include the trial diet) against any person for such an offence the defence provided for by sub-paragraph (2) involves an allegation that the commission of the offence was due - 

(a) to the act or default of another, or

(b) to reliance on information given by another,

that person shall not, without the leave of the court, be entitled to rely on the defence unless, not less than seven clear days before the hearing of the proceedings (or, in Scotland, the trial diet), he has served a notice under sub-paragraph (4) on the person bringing the proceedings.

    (4) A notice under this sub-paragraph shall give such information identifying or assisting in the identification of the person who is alleged to have committed the act or default or to have given the information as is in the possession of the person serving the notice at the time he serves it.

    (5) A person shall not be entitled to rely on the defence provided by sub-paragraph (2) by reason of his reliance on information supplied by another, unless he shows that it was reasonable in all the circumstances for him to have relied on the information, having regard in particular - 

(a) to whether he had any reason to disbelieve the information, and

(b) in the case of a supplier, to the steps which he took, and those which might reasonably have been taken, for the purpose of verifying the information.

Liability of a person other than the principal offender
     4.  - (1) Where the commission by any person of an offence under these Regulations is due to an act or default committed by some other person in the course of any business of his, that other person shall be guilty of the offence and may be proceeded against and punished by virtue of this sub-paragraph whether or not proceedings are taken against the first-mentioned person.

    (2) Where a body corporate is guilty of an offence under these Regulations (including where it is so guilty by virtue of sub-paragraph (1)) in respect of any act or default which is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

    (3) Where the affairs of a body corporate are managed by its members, sub-paragraph (2) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

    (4) Where a Scottish partnership is guilty of an offence under these Regulations (including where it is so guilty by virtue of sub-paragraph (1)) in respect of any act or default which is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner in the partnership, he, as well as the partnership, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(a) intentionally obstruct a duly authorised officer of an enforcement authority acting in pursuance of any provision of these Regulations; or

(b) intentionally fail to comply with any requirement properly made to him by such an officer under any provision of these Regulations; or

(c) without reasonable cause fail to give any such officer of an enforcement authority who is so acting any other assistance or information which he may reasonably require of him for the purposes of the exercise of the officer's functions under any provision of these Regulations.

    (2) A person shall not, in giving any information which is required of him by virtue of sub-paragraph (1)(c) - 

(a) make any statement which he knows is false in a material particular; or

(b) recklessly make a statement which is false in a material particular.

Explanation of suggested remedial action
     6.  - (1) Subject to paragraph 8 (application of paragraphs 6 and 7 to other interested persons), where a duly authorised officer of an enforcement authority expresses to any person any opinion as to what remedial action should be taken by that person in respect of a contravention of these Regulations, then, if that person so requests, the officer - 

(a) shall as soon as practicable give to him a written notice which satisfies the requirements of sub-paragraph (2); and

(b) shall not take any enforcement action against him until after the end of the period of 21 days beginning with the giving to him of the notice.

    (2) A notice satisfies the requirements of this sub-paragraph if it - 

(a) explains what constitutes the failure to observe these Regulations;

(b) states the nature of the remedial action which in the officer's opinion should be taken, and explains why and within what period; and

(c) states the nature of the enforcement action which could be taken and states whether there is a right to make representations before, or a right of appeal against, the taking of such action.

Right to make representations
     7.  - (1) This paragraph shall not apply to the making of an application to a justice of the peace or, in Scotland, a sheriff for a warrant of entry under paragraph 11(4) (application for warrant of entry to premises) or to the entering of premises by authority of a warrant granted in pursuance of such an application.

    (2) Subject to sub-paragraph (1) and to paragraph 8 (application of paragraphs 6 and 7 to other interested persons), before taking any enforcement action under these Regulations against any person, an enforcement authority or, as the case may be, a duly authorised officer of an enforcement authority - 

(a) shall give to the person a written notice stating - 


(i) that the authority or the officer is considering taking the action and the reasons why it or he is considering it; and

(ii) that the person may, within the period of not less than 14 clear days following the date of giving to him of the notice, make written representations to that officer or another duly authorised officer of the authority or, if he so requests, make oral representations to the officer or another duly authorised officer of the authority in the presence of an independent third person who shall be appointed by the authority; and



(b) shall consider any representations which are duly made and not withdrawn.

Application of paragraphs 6 and 7 to other interested persons
     8.  - (1) Where - 

(a) a third person will or may be required to meet or make a significant contribution towards the cost of observing the restriction or complying with the requirement or condition; or

(b) the enforcement action which may be or has been taken specifically relates to any appliance or record which is to be or has been supplied by a third person,

paragraphs 6 and 7 shall apply also in relation to that person.

Power of enforcement authority to require technical documentation etc.
     9. Where an enforcement authority has reason to suspect that the EC mark has been improperly affixed to the appliance or that the appliance fails to satisfy the requirements of these Regulations, the authority may require the supplier of the appliance to furnish to the authority such technical documentation or copy EC declaration of conformity within the meaning of regulations 5 (the EC declaration of conformity) and 6 (duties in respect of technical documentation etc.) as the authority considers appropriate.

Test purchases
     10.  - (1) An enforcement authority shall have power, for the purpose of ascertaining whether any provision of these Regulations has been contravened, to purchase, or to authorise an officer of the authority to purchase, any appliance.

    (2) Where - 

(a) an appliance purchased under this paragraph by or on behalf of an enforcement authority is submitted to a test; and

(b) the test leads to the bringing of proceedings in respect of an offence under these Regulations; and

(c) the authority is requested to do so and it is practicable for the authority to comply with the request,

the authority shall allow the person from whom the appliance was purchased or any person who is a party to the proceedings or has an interest in the appliance to have the appliance tested.

    (3) A test of an appliance purchased under this paragraph, or seized and detained under paragraph 11 (power to enter premises and inspect, seize and detain appliances etc.), shall be carried out in accordance with Part II of Schedule 1.

Power to enter premises and inspect, seize and detain appliances etc.
     11.  - (1) A duly authorised officer of an enforcement authority may, at all reasonable hours and on - 

(a) identifying himself and producing authority in writing from the enforcement authority which appointed him for the exercise by him of powers conferred on the authority by these Regulations, and

(b) stating the purpose of his actions and his grounds for undertaking them,

exercise any of the powers set out in sub-paragraph (2).

    (2) The powers referred to in sub-paragraph (1) are - 

(a) he may, for the purpose of ascertaining whether an offence under these Regulations has been committed, inspect any appliance and enter any premises other than premises used only as a dwelling;

(b) if he has reasonable cause to suspect that an offence under these Regulations has been committed, he may, for the purpose of ascertaining whether it has been committed, require any person carrying on or employed in connection with a business to produce any records relating to the appliance or appliances in question and he may take copies of, or of any entry in, the same;

(c) if he has reasonable cause to suspect that an offence under these Regulations has been committed, he may seize and detain any appliances for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed;

(d) he may seize and detain any appliances or records which he has reason to believe may be required as evidence in proceedings for an offence under these Regulations;

(e) he may, for the purpose of exercising his powers of seizure under this sub-paragraph, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of these Regulations are duly observed, require any person having authority to do so to break open any container and, if that person does not comply with the requirement or if there is no person present having authority to open it, he may do so himself.

    (3) For the purposes of paragraphs (b) and (d) of sub-paragraph (2), the officer may require information stored electronically to be made available to him in printed form.

    (4) If a justice of the peace is satisfied by any written information on oath - 

(a) that there are reasonable grounds for believing either - 


(i) that any appliances or records, which a duly authorised officer has power under this paragraph to inspect, copy, seize or require to be produced, are on any premises and that their inspection, copying, seizure or production is likely to disclose evidence of the commission of an offence under these Regulations; or

(ii) that any offence under these Regulations has been, is being or is about to be committed on any premises; and



(b) either - 



(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this sub-paragraph has been given to the occupier; or

(ii) that an application for admission, or the giving of such a notice, would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await his return,

the justice may by warrant under his hand, which shall continue in force for a period of one month, authorise an officer of an enforcement authority to enter the premises, if need be by force.

    (5) An officer entering any premises by authority of a warrant granted under sub-paragraph (4) shall, if the occupier is present, give to the occupier or, if the occupier is temporarily absent, leave in a prominent place on the premises or appropriate part of the premises a notice in writing - 

(a) summarising the officer's powers of seizure and detention of appliances and records under this paragraph;

(b) explaining that compensation may be payable for damage caused in entering premises and seizing and removing appliances and records therefrom, and giving the address to which an application for compensation should be directed; and

(c) indicating at which office of the enforcement authority and within which hours a copy of these Regulations is available to be consulted.

    (6) An officer entering any premises by virtue of this paragraph may take with him such other persons and such equipment as may appear to him necessary; and on leaving any premises which he has entered by virtue of a warrant he shall, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured against trespassers as he found them.

    (7) An officer exercising any power of seizure and detention under this paragraph shall as soon as practicable give to the person, against whom the power has been exercised, a written notice - 

(a) stating precisely what has been so seized and detained; and

(b) explaining where, within what period and on what grounds an appeal against such detention may be brought under paragraph 12 (appeals against detention of appliances etc.), and whether the things detained would be released while an appeal were pending.

    (8) A person who is not a duly authorised officer of an enforcement authority shall not purport to act as such under this paragraph.

    (9) In the application of this paragraph to Scotland, the reference in sub-paragraph (4) to a justice of the peace shall include a reference to a sheriff and the references to written information on oath shall be construed as references to evidence on oath.

    (10) In the application of this paragraph to Northern Ireland, the references in sub-paragraph (4) to any information on oath shall be construed as references to any complaint on oath.

Appeals against detention of appliances etc.
     12.  - (1) Any person having an interest in any appliances or records which are for the time being detained under paragraph 11 (power to enter premises and inspect, seize and detain appliances etc.) by an enforcement authority or by a duly authorised officer of an enforcement authority may apply for an order requiring the appliances or records to be released to him or to another person.

    (2) An application under this paragraph may be made - 

(a) to any magistrates' court in which proceedings have been brought in England and Wales or Northern Ireland for an offence in respect of a contravention of any provision of these Regulations in relation to the appliances or records;

(b) where no such proceedings have been so brought, by way of complaint to a magistrates' court; or

(c) in Scotland, by summary application to the sheriff.

    (3) A magistrates' court or the sheriff shall not make an order under sub-paragraph (1) unless the court or sheriff is satisfied - 

(a) that proceedings have not been brought for an offence in respect of a contravention of any provision of these Regulations in relation to the appliances or records; and

(b) where no such proceedings have been brought, that more than twelve months have elapsed since the seizure was carried out.

    (4) Any person aggrieved by an order made under this paragraph by a magistrates' court in England and Wales or Northern Ireland, or by decision of such a court not to make such an order, may appeal against that order or decision - 

(a) which was obtained by him in consequence of its being given to any person in compliance with any requirement imposed by these Regulations; or

(b) which consists in a secret manufacturing process or trade secret and was obtained by him in consequence of the exercise by any person of any power or duty conferred by these Regulations.

    (2) Sub-paragraph (1) shall not apply to a disclosure of information if the information is publicised information or the disclosure is made -