S.I. No. 197/1997 - European Communities (General Product Safety) Regulations, 1997.
S.I. No. 197 of 1997. | ||
EUROPEAN COMMUNITIES (GENERAL PRODUCT SAFETY) REGULATIONS, 1997. | ||
I, RICHARD BRUTON, T.D., Minister for Enterprise and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 92/59/EEC(1) of 29 June 1992, on general product safety, hereby make the following Regulations: | ||
(1)O.J. No. L228 of 11.8.92 p.24 | ||
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1 Citation | 1. These Regulations may be cited as the European Communities (General Product Safety) Regulations, 1997. | |
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2 Interpretation | 2. (1) In these Regulations— | |
"authorised officer" means a person appointed as an authorised officer under Regulation 13; | ||
"the Community" means the European Communities; | ||
"the Council Directive" means Council Directive 92/59/EEC of 29 June 1992, on general product safety; | ||
"dangerous product" means any product which does not meet the requirement of being a safe product; | ||
"the Director" means the Director of Consumer Affairs; | ||
"distributor" means any professional in the supply chain whose activity does not affect the safety properties of a product; | ||
"producer" means— | ||
( a ) the manufacturer of the product, when the manufacturer is established in the Community, and any other person presenting himself as the manufacturer by affixing to the product his name, trade mark or other distinctive mark, or the person who reconditions the product, or | ||
( b ) the manufacturer's representative, when the manufacturer is not established in the Community or, if there is no representative established in the Community, the importer of the product, or | ||
( c ) other professionals in the supply chain, in so far as their activities may affect the safety properties of a product placed on the market; | ||
"product" means any product intended for consumers or likely to be used by consumers, supplied whether for consideration or not in the course of a commercial activity and whether new, used or reconditioned; | ||
"safe product" means any product which, under normal or reasonably foreseeable conditions of use, including duration, does not present any risk or only the minimum risks compatible with the product's use considered as acceptable and consistent with a high level of protection for the safety and health of persons. | ||
(2) ( a ) A reference in these Regulations to a Regulation is to a Regulation of these Regulations, unless it is indicated that reference to some other Regulations is intended. | ||
( b ) A reference in these Regulations to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended. | ||
(3) A word or expression that is used in these Regulations, and is also used in the Council Directive, has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Council Directive. | ||
(4) In construing a provision of these Regulations, a court shall give to it a construction that will give effect to the Council Directive, and for this purpose a court shall have regard to the provisions of the Council Directive, including its preamble. | ||
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3 Application | 3. (1) These Regulations do not apply to second-hand products supplied as antiques or as products to be repaired or reconditioned prior to being used, provided that the supplier clearly informs the person to whom he supplies the product to that effect. | |
(2) These Regulations do not apply to any product where there are specific provisions in rules of Community law as governing all aspects of the safety of the product or any enactment or any regulation made under section 3 of the European Communities Act, 1972 , giving effect to any such rules: | ||
However, the requirements of these Regulations apply to a product which is the subject of provisions of Community law, or any enactment or regulation made under the said section 3 giving effect to such, in so far as those provisions do not make specific provision governing an aspect of the safety of the product. | ||
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4 Prohibition on producers placing dangerous products on the market | 4. (1) A producer shall not place or attempt to place on the market a product unless it is a safe product. | |
(2) In determining the safety of a product the following shall be taken into consideration: | ||
( a ) the characteristics of the product, including its composition, packaging, instructions for assembly and maintenance: | ||
( b ) the effect on other products, where it is reasonably foreseeable that it will be used with other products; | ||
( c ) the presentation of the product, the labelling, any instructions for its use and disposal and any other indication or information provided by the producer; and | ||
( d ) the categories of consumers at serious risk when using the product, in particular children: | ||
However, the feasibility of obtaining higher levels of safety or the availability of other products presenting a lesser degree of risk shall not constitute grounds for considering a product to be unsafe or dangerous. | ||
(3) A producer who contravenes this Regulation shall be guilty of an offence. | ||
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5 Duty of producers to give relevant information regarding hidden risks | 5. (1) A producer shall, in relation to any product placed on the market by the producer— | |
( a ) provide consumers with all relevant information relating to the product to enable them to assess the risks inherent in the product throughout the normal or reasonably foreseeable period of its use, where such risks are not immediately obvious without adequate warnings, and to take precautions against those risks, and | ||
( b ) adopt measures commensurate with the characteristics of the product, to enable them to be informed of the risks which the product might present and to take appropriate action, including, if necessary, withdrawing the product in question from the market to avoid those risks. | ||
(2) Where the Director considers a producer has not given relevant information to consumers or taken appropriate action in relation to risks referred to in paragraph (1), he may by a direction to the producer require the producer to give to consumers such information or to take such action concerning the product as specified in the direction. | ||
(3) A producer who fails to comply with a direction under paragraph (2) shall be guilty of an offence. | ||
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6 Other duties of producers | 6. (1) A producer shall, in relation to any product the producer has placed on the market, where appropriate— | |
( a ) mark the product or product batches in such a way they can be identified, | ||
( b ) carry out sample testing of the product, | ||
( c ) investigate any complaints made about marketed products, and | ||
( d ) keep distributors informed about any risks in the product. | ||
(2) The Director may make a direction to a producer in relation to compliance with any of the matters referred to in paragraph (1). | ||
(3) A producer who fails to comply with a direction under paragraph (2) shall be guilty of an offence. | ||
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7 Duties of distributors | 7. (1) A distributor shall act with due care to ensure that any product he supplies is a safe product. | |
(2) A distributor shall not supply or attempt to supply a product which he knows or it is reasonable to presume that he should know is a dangerous product. | ||
(3) A distributor who contravenes paragraph (2) shall be guilty of an offence. | ||
(4) A distributor shall in relation to any product placed on the market which he supplies, monitor the product with regard to product safety, and shall inform the producer of the product and consumers as to any defects in it or risks it may pose to consumers that he becomes aware of in relation to it. | ||
(5) A distributor who, without reasonable excuse, fails to comply with paragraph (4) shall be guilty of an offence. | ||
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8 Products to be deemed safe in certain circumstances | 8. (1) A product shall be deemed to be a safe product if it conforms with any specific rules of the law of the State, drawn up in conformity with the Treaty of Rome and in particular Articles 30 and 36 thereof, laying down the health and safety requirements which the product must satisfy in order to be marketed. | |
(2) Where no specific rules as referred to in paragraph (1) exist, the conformity of a product to the general safety requirement shall be assessed taking into account— | ||
(i) voluntary national standards of the State giving effect to a European standard, or | ||
(ii) Community technical specifications, or | ||
(iii) if there are no such voluntary national standards of the State or Community technical specifications— | ||
( aa ) standards drawn up in the State, or | ||
( bb ) the codes of good practice in respect of health and safety in the product sector concerned, or | ||
( cc ) the state of the art and technology, and the safety which consumers may reasonably expect. | ||
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9 Directions relating to dangerous products | 9. (1) Notwithstanding Regulation 8, the Director may by a direction to a producer or distributor of a product— | |
( a ) prohibit or impose such restrictions as specified in the direction on the product or product batch being placed on the market, or | ||
( b ) require the withdrawal of the product or product batch from the market and, if necessary, its destruction under such conditions as may be specified in the direction by the producer or distributor, where there is evidence it is dangerous to the health and safety of consumers. | ||
(2) A direction made under this Regulation may be for a definite or indefinite period. | ||
(3) A producer or distributor who fails to comply with a direction made under this Regulation shall be guilty of an offence. | ||
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10 Directions relating to product safety | 10. (1) The Director may, in order to ensure product safety or that consumers who might be exposed to the risk of a product are informed in good time and in a suitable manner of the risk, may make a direction to a producer or distributor to— | |
( a ) affix to a product or to any packaging of the product such warnings as may be specified in the direction regarding the risks which the product may present, or | ||
( b ) publish, in such form and manner and on occasions specified in the direction, a warning about any risks in any product, | ||
placed on the market by the producer or supplied by the distributor. | ||
(2) A producer or distributor who fails to comply with a direction made under this Regulation shall be guilty of an offence. | ||
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11 Procedure in relation to Directions of Director | 11. (1) Where it is feasible, the Director shall give the opportunity to any person to whom he is considering making a direction under these Regulations to submit his views on the proposed direction to the Director before the adoption of the measure. If this opportunity is not given because of the urgency of the measures to be taken, such opportunity shall be given by the Director in due course after the direction takes effect. | |
(2) A direction made by the Director under these Regulations to a producer or distributor shall be in writing, state the appropriate reasons on which it is based and be addressed to the producer or distributor concerned and, as soon as possible, sent or given in any of the following ways— | ||
( a ) by delivering it to the producer or distributor, | ||
( b ) by leaving it at the address at which the producer or distributor carries on business, | ||
( c ) by sending it by prepaid registered post to the person at the address at which the producer or distributor carries on business, | ||
( d ) where there is the facility for receiving a facsimile of the direction by electronic means at the address at which the producer or distributor carries on business, by transmitting a facsimile of the direction by such means to such address, provided the direction is also delivered in any of the other ways referred to in this paragraph. | ||
(3) A direction made under these Regulations may require that the measures to be taken in the direction be undertaken— | ||
( a ) immediately because of the urgency of the measures to be taken, or | ||
( b ) from a specified date, or | ||
( c ) by a specified date, or | ||
( d ) between specified dates. | ||
(4) A direction made by the Director under these Regulations shall, subject to Regulation 12(2), take effect on the date specified therein and shall indicate the appeal procedure under Regulation 12. | ||
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12 Appeals against Directions of Director | 12. (1) Any person aggrieved by a direction made by the Director under these Regulations, may, within 21 days of receipt of the direction, appeal to the judge of the Circuit Court in whose Circuit the person carries on business. | |
(2) Where an appeal is made under paragraph (1) the appellant may make an application to the Court that the direction shall stand suspended until the appeal is determined or withdrawn. | ||
(3) On hearing of an appeal under paragraph (1) the Court may either confirm or vary the direction, or allow the appeal. | ||
(4) A decision of the Circuit Court on an appeal under paragraph (1) shall be final, save that, by leave of the Court, an appeal from the decision shall lie to the High Court on a specified question of law. | ||
(5) The determination of any appeal under this Regulation or any application under paragraph (2) is without prejudice to the destruction of any product under Regulation 9(l)(b). | ||
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13 Appointment and powers of Authorised Officers | 13. (1) The Director may appoint such and so many officers as he thinks fit to be authorised officers for the purposes of ensuring compliance with these Regulations and the Council Directive. | |
(2) An authorised officer shall be furnished with a warrant of the officer's appointment and, when exercising any power conferred on an authorised officer under these Regulations, shall, if requested by any person affected, produce the warrant to that person. | ||
(3) An authorised officer may for the purpose of ensuring that these Regulations and the Council Directive are being complied with, without prejudice to the generality of paragraph (1)— | ||
( a ) at all reasonable times enter any premises, at which there are reasonable grounds to believe that a product to which these Regulations apply is being or has been manufactured, distributed, supplied or placed on the market or that records relating to the aforesaid are kept, and search and inspect the premises and any product or records found therein, | ||
( b ) secure for later inspection any premises or any part of a premises in which such product or records are kept or there are reasonable grounds for believing that such product or records are kept, | ||
( c ) require any person in charge thereof or so employed therein, to produce to the officer such records and in the case of such information in a non-legible form to reproduce it in a legible form or to give to the officer such information as the officer may reasonably require in relation to any entries in such records, | ||
( d ) inspect and take copies of or extracts from any such records (including in the case of information in non-legible form a copy of or extract from such information in a permanent legible form), | ||
( e ) remove and retain, where the officer has reasonable cause to suspect that there has been a contravention of these Regulations, the said product or records for such period as may be reasonable for further examination or until the conclusion of any legal proceedings, | ||
(f) as regards any product or any article or substance used in the manufacture of a product the officer finds at or in a premises, require any person in charge thereof or any person who appears to the officer to be in possession of the product or the article or substance, to supply without payment, for test, examination or analysis sufficient samples thereof, | ||
( g ) cause any product or any article or substance used in the manufacture of a product found at or in any premises which appears to the officer to have caused or to be likely to cause danger to safety or health, to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is in the circumstances necessary for the purposes of these Regulations) and where an authorised officer proposes to exercise this power in the case of a product or an article or substance used in the manufacture of a product found at or in any premises, the officer shall, if so requested by a person who at the time is present at or in and has responsibilities in relation to that premises, cause anything which is to be done by virtue of that power to be done in the presence of that person, | ||
( h ) in relation to any product or any article or substance used in the manufacture of a product found at a premises in accordance with subparagraph (g), take possession of it and detain if for so long as is necessary for all or any of the following purposes, namely— | ||
(i) to examine or arrange for the examination of it and do to it anything which he has power to under subparagraph (g), | ||
(ii) to ensure that it is not tampered with before the examination of it is completed, | ||
(iii) to ensure that it is available for use as evidence in any proceedings, | ||
(i) require any person to afford the officer such facilities and assistance within his or her control or responsibilities as are reasonably necessary to enable the officer to exercise any of the powers conferred on an authorised officer under this Regulation, | ||
( j ) examine any procedure connected with the manufacture of a product, and | ||
( k ) exercise such other powers as may be necessary to ensure that these Regulations and the Council Directive are being complied with. | ||
(4) Before exercising the power conferred by paragraph (3)(g) in the case of any product, article or substance, and authorised officer shall, in so far as it is reasonably practicable to so, consult such persons as appear to him to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under that power. | ||
(5) Where under the power conferred by paragraph (3)(h) an authorised officer takes possession of any product, article or substance found at or in any premises, the officer shall if it is practicable for him to do so, take a sample thereof and give to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it. | ||
(6) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he has obtained a warrant from the District Court under paragraph (9) authorising such entry. | ||
(7) Where an authorised officer in the exercise of the officer's powers under this Regulation is prevented from entering any premises an application may be made to the District Court under paragraph (9) for a warrant authorising such entry. | ||
(8) An authorised officer where he considers it necessary, may be accompanied by a member of the Garda Síochána when performing any powers conferred on an authorised officer under this Regulation or seizing any product under a forfeiture order made under Regulation 15. | ||
(9) If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that there is information required by an authorised officer under this Regulation held on any premises or any part of any premises or there is a product which an authorised officer requires to inspect for purposes of these Regulations or the Council Directive or that such inspection is likely to disclose evidence of a contravention of these Regulations, the judge may issue a warrant authorising an authorised officer, accompanied by other authorised officers or members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter, if need be by reasonable force, the premises and exercise all or any of the powers conferred on an authorised officer under this Regulation. | ||
(10) An application under paragraph (9) shall be made to the judge of the District Court in whose district court district the premises is situated. | ||
(11) A person who— | ||
( a ) obstructs or interferes with an authorised officer in the exercise of the officer's powers under this Regulation, or | ||
( b ) fails to comply with a request from an authorised officer under this Regulation, or | ||
( c ) makes a statement to such officer which the person knows is false or misleading, | ||
shall be guilty of an offence. | ||
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14 Injunctions, etc | 14. Where a person fails to comply with a direction of the Director under these Regulations, the Director may, in lieu of any summary proceedings against such person under Regulation 9(3) or 10(2), institute in the High Court proceedings for an order requiring the person to comply with the terms of the direction. | |
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15 Forfeiture Orders | 15. (1) The Director may apply under this Regulation for an order ("forfeiture order") for the forfeiture to the Director of any product to which these Regulations apply on the grounds that the product is a dangerous product. | |
(2) An application under this Regulation shall be made to the judge of the District Court in whose district court district the person against who the forfeiture order is sought resides or carries on business. | ||
(3) Any product the subject of a forfeiture order may be seized on behalf of the Director by an authorised officer. | ||
(4) Any person aggrieved by the making of a forfeiture order or by a decision of the District Court not to make such an order, may appeal against that order or decision to the judge of the Circuit Court in whose Circuit a forfeiture order has been made or refused. | ||
(5) Where the District Court makes a forfeiture order, the order so made may contain such provision as appears to the Court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal. | ||
(6) Subject to paragraph (7), where any product is forfeited under a forfeiture order it shall be destroyed in accordance with such directions as the District Court may give. | ||
(7) On making a forfeiture order the District Court may, if is considers it appropriate to do so, direct that the product to which the order relates shall (instead of being destroyed) be released, to such person on such conditions as the Court may specify. | ||
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16 Orders for the release of goods | 16. (1) Any person having an interest in any product which is for the time being detained under Regulation 13 may apply for an order requiring the product to be released to him or to another person. | |
(2) An application under this Regulation may be made— | ||
( a ) to any District Court in which proceedings have been brought— | ||
(i) for an offence in respect of a contravention of, or failure to comply with a direction under, these Regulations in relation to the product concerned, or | ||
(ii) for the forfeiture of the product under Regulation 15, or | ||
( b ) where no such proceedings have been brought, to the judge of the District Court in whose district court district the person resides or carries on business or where the product was seized. | ||
(3) Any person aggrieved by an order made under this Regulation by a District Court or by a decision of such Court not to make such an order, may appeal against that order or decision to the judge of the Circuit Court in whose Circuit the order was made or refused. | ||
(4) Where the District Court makes an order under this Regulation, the order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal. | ||
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17 Prohibition on disclosure of information | 17. A person who discloses information obtained for the purposes of these Regulations or the Council Directive which by its nature is confidential, other than information relating to the safety properties of any product in order to protect the safety and health of consumers, shall be guilty of an offence. | |
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18 Prosecutions | 18. An offence under this Act may be prosecuted summarily by the Director. | |
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19 Cost of Prosecutions | 19. Where an person is convicted of an offence under these Regulations the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Director the costs and expenses, measured by the court, incurred in relation to the investigation, detention and prosecution of the offence and, where appropriate, any seizure or detention. | |
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20 Penalties | 20. (1) A person guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 3 months or to both. | |
(2) Where a person, after conviction for an offence under these Regulations, continues to contravene the provision concerned, the person shall be guilty of an offence on every day on which the contravention continues and for each such offence shall be liable on summary conviction to a fine not exceeding £250. | ||
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21 Forfeiture of product upon conviction of certain offences | 21. (1) Where a person is convicted of an offence under Regulation 4(3), 7(3), 9(3) or 10(2), the court by or before which he is convicted may order any product in respect of which the offence was committed to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine. | |
(2) An order made under this Regulation may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal. | ||
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22 Offence by body corporate | 22. Where an offence under these Regulations is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of any director, manager, secretary or any other officer of such body or a person who was purporting to act in any such capacity, such person shall also be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence. | |
GIVEN under my Official Seal, this 25th day of April, 1997. | ||
RICHARD BRUTON, | ||
Minister for Enterprise and Employment. | ||
EXPLANATORY NOTE. | ||
These Regulations which come into operation on the making thereof, implement Council Directive 92/59/EEC of 29th June 1992, on General Product Safety. These Regulations make it an offence to place unsafe products onto the market. They specify the duties of producers and distributors in relation to placing safe products on the market place. The Director of Consumer Affairs is given the authority to ensure that only safe products as specified in these Regulations are placed on the market. |