The Energy Information Regulations 2011

In these Regulations—

• F1“Article” means, except in Schedules 1 and 2, an Article in the EU Energy Labelling Regulation;

• “authorised person” means a person authorised by the market surveillance authority in accordance with regulation 5;

• F2“the EU Energy Labelling Regulation” means Regulation (EU) 2017/1369 of the European Parliament and of the Council setting a framework for energy labelling and repealing Directive 2010/30/EU;

• F3... 

• “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^f1;

• “market surveillance authority” has the meaning given in regulation 4; F4...

• F5“product-specific measure” means in relation to a product mentioned in column 1 of the table in Schedule 1, the corresponding measure referred to in column 2 of that table; 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^f2.

Expressions not defined in paragraph (1) which are used in these Regulations and—

These Regulations apply to energy-related products.

These Regulations do not apply to—

The local weights and measures authority, and in relation to Northern Ireland the Department for the Economy, enforce—

The Secretary of State enforces—

Each of these is referred to as a “market surveillance authority”.

The Secretary of State may delegate to the Director of Public Prosecutions functions in relation to the prosecution of an offence under these Regulations.

Schedule 1 (F1product-specific measures);

Schedule 2 (powers of entry and warrants);

Schedule 3 (testing);

Schedule 4 (civil sanctions).

It is an offence for—

Any person guilty of an offence under paragraph (1) is liable—

It is an offence for any person—

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.

In this regulation, “powers or duties” includes powers or duties exercisable by virtue of a warrant under Schedule 2.

An offence under these Regulations may be tried by summary proceedings if—

For the purposes of paragraph (1)—

If an offence under these Regulations committed by a body corporate is proved—

“Officer”, in relation to a body corporate, means—

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.

If an offence under these Regulations committed by a partnership in Scotland is proved—

In paragraph (4) “partner” includes a person purporting to act as a partner.

This regulation applies where a court convicts a person of an offence under these Regulations.

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.

Before the end of each review period, the Secretary of State must—

In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how F1the EU Energy Labelling Regulation is implemented in other member States.

The report must in particular—

In this regulation “review period” means—

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.

In the table in paragraph 1, in Column 2 of the row relating to household combined washer-driers, the reference to Commission Directive 96/60/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household combined washer-driers, is to be read as a reference to that Commission Directive as it had effect immediately before IP completion day, and subject to the modifications in subparagraph (2).

The modifications referred to in subparagraph (1) are that the Commission Directive is to be read as if—

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 F1these Regulations, the EU Energy Labelling Regulation and RAMS.

An authorised person must, if requested to do so, produce a duly authenticated authorisation document.

An authorised person may—

An authorised person may—

An authorised person may require information stored electronically to be made available in printed form.

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—

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.

An authorised person exercising any power of seizure and detention must—

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 F1these Regulations, the EU Energy Labelling Regulation 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—

Reference to a justice of the peace—

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;

asking for admission to the premises, or giving such a notice, would defeat the object of the entry;

entry is required urgently;

the premises are unoccupied or the occupier is temporarily absent.

If a product so tested fails to comply with F1a product-specific measure, the market surveillance authority may recover its testing costs from the person who placed it on the market for the first time.

Costs include in particular—

The market surveillance authority is not entitled to recover any costs proven to have been incurred unnecessarily.

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 F1a product-specific measure.

The notice of intent must include—

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.

Where the market surveillance authority decides to impose a requirement, the notice imposing it (the “final notice”) must comply with paragraph 6.

a statement that the product has been tested and has failed to comply with F1a product-specific measure;

details of the tests carried out;

the amount to be paid and the period within which the payment must be made which must not be less than 28 days;

a detailed breakdown of the testing costs incurred;

information as to—

Any appeal under this Schedule must be made to the First-tier Tribunal.

The Tribunal must determine the standard of proof.

A notice under this Schedule is suspended pending appeal.

The Tribunal may, in relation to the imposition of a requirement or service of a notice—

The Secretary of State must publish guidance about the recovery of costs.

The guidance must contain relevant information and the Secretary of State must update and revise the guidance where appropriate.

The market surveillance authority must have regard to the guidance in exercising its functions.

In this paragraph, relevant information is information about—

This paragraph applies where the market surveillance authority is satisfied beyond reasonable doubt that a person has committed an offence under regulation 11(1).

The market surveillance authority may by notice (“a compliance notice”) impose on that person a requirement to take such steps as the market surveillance authority may specify, within such period as it may specify, to secure that the offence does not continue or recur.

A compliance notice may not be imposed on more than one occasion in relation to the same offence.

The market surveillance authority may by notice impose on any person in relation to an offence committed under regulation 11(1) a requirement to pay a monetary penalty to the market surveillance authority in such amount as it may determine (“a variable monetary penalty”).

Before doing so the market surveillance authority must be satisfied beyond reasonable doubt that the person has committed the offence.

A variable monetary penalty may not be imposed on more than one occasion in relation to the same act or omission.

There is no limit to the amount of a variable monetary penalty.

Before serving a notice relating to a variable monetary penalty the market surveillance authority may require the person on whom it is to be served to provide such information as is reasonable to establish the amount of any financial benefit arising as a result of the offence.

The market surveillance authority may recover any variable monetary penalty imposed under this Schedule as if payable under order of the court.

If the market surveillance authority proposes to serve a compliance notice or a variable monetary penalty under this Part, it must serve on that person a notice of what is proposed (a “notice of intent”).

The notice of intent must include—

A person on whom a notice of intent is served may offer an undertaking as to action to be taken by that person (including the payment of a sum of money) to benefit any third party affected by the offence or non-compliance with F1a product-specific measure (“a third party undertaking”).

The market surveillance authority may accept or reject such a third party undertaking.

The market surveillance authority must take into account any third party undertaking that it accepts in its decision whether or not to serve a final notice and, if it serves a notice imposing a variable monetary penalty, the amount of the penalty.

After the end of the period for making representations and objections, the market surveillance authority must decide whether to impose the requirements in the notice of intent, with or without modifications.

Where the market surveillance authority decides to impose a requirement, the notice imposing it (the “final notice”) must comply with paragraph 9 or 10.

The market surveillance authority may not impose a final notice on a person where the market surveillance authority is satisfied that the person would not, by reason of any defence, be liable to be convicted of the offence to which the notice relates.

the grounds for imposing the notice;

what compliance is required and the period within which it must be completed;

rights of appeal; and

the consequences of failing to comply with the notice.

the grounds for imposing the penalty;

the amount to be paid;

how payment may be made;

the period within which payment must be made which must be not less than 28 days;

rights of appeal; and

the consequences of failing to comply with the notice.

The person receiving the final notice may appeal against it.

The grounds for appeal are—

If—

This sub-paragraph applies to a case where in relation to an offence under regulation 11(1)—

Criminal proceedings for offences triable summarily to which a compliance notice or third party undertaking in sub-paragraph (2) relate may be instituted at any time up to 6 months from the date when the market surveillance authority notifies the person that they have failed to comply with that compliance notice or third party undertaking.

The market surveillance authority may serve a notice (a “stop notice”) on any person—

A stop notice may only be served where the person is—

The steps referred to in sub-paragraph (1)(a) and (b) must be steps to eliminate the risk of the offence being committed, or of products which do not comply with F3a product-specific measure being made available on the market.

the grounds for serving the stop notice and the activity which is prohibited;

the steps the person must take to comply with the stop notice;

the consequences of non-compliance;

the period within which the activity must stop.

The person on whom a stop notice is served may appeal against the decision to serve it.

The grounds for appeal are—

The market surveillance authority must issue a certificate (a “completion certificate”) if, after service of a stop notice, the market surveillance authority is satisfied that the person has taken the steps specified in the notice.

A stop notice ceases to have effect on the issue of a completion certificate.

A person on whom a stop notice is served may at any time apply for a completion certificate.

The market surveillance authority must decide whether to issue a completion certificate within 14 days of the application.

A person on whom the stop notice was served may appeal against a decision not to issue a completion certificate on the grounds that—

The market surveillance authority must compensate a person for loss suffered as the result of the service of the stop notice or the refusal of a completion certificate if a person has suffered loss as a result of the notice or refusal and—

A person may appeal against a decision not to award compensation or the amount of compensation on the grounds that—

An enforcement undertaking must specify—

It must specify the period within which the action must be completed.

It must include—

The enforcement undertaking may be varied, or the period within which the action must be completed may be extended, if both parties agree in writing.

that person may not at any time be convicted of the offence in respect of the act or omission to which the undertaking relates; and

the market surveillance authority may not impose on that person a compliance notice, stop notice or variable monetary penalty in respect of that act or omission.

If the market surveillance authority is satisfied that an enforcement undertaking has been complied with it must issue a certificate to that effect.

The market surveillance authority may require the person who has given the undertaking to provide sufficient information to determine that the undertaking has been complied with.

The person who gave the undertaking may at any time apply for such a certificate.

The market surveillance authority must decide whether to issue such a certificate, and give written notice of the decision to the applicant, within 14 days of such an application.

The person to whom the notice is given may appeal against a decision not to issue a certificate on the grounds that the decision—

A person who has given inaccurate, misleading or incomplete information in relation to an enforcement undertaking is regarded as not having complied with it.

The market surveillance authority may by notice in writing revoke a certificate issued under paragraph 22 if it was issued on the basis of inaccurate, incomplete or misleading information.

If a person does not comply with an enforcement undertaking the market surveillance authority may in the case of an offence committed under regulation 11(1)—

If a person has complied partly but not fully with an undertaking, that partial compliance must be taken into account in the imposition of any criminal or other sanction on the person.

Criminal proceedings for offences to which an enforcement undertaking relates may be instituted at any time up to 6 months from the date when the market surveillance authority notifies the person that they have failed to comply with that undertaking.

If a person fails to comply with a compliance notice, stop notice, third party undertaking or enforcement undertaking, irrespective of whether a variable monetary penalty was also imposed, the market surveillance authority may serve a notice on that person imposing a monetary penalty (“a non-compliance penalty”).

The amount of the non-compliance penalty must be determined by the market surveillance authority, and must be a percentage of the costs of fulfilling the remaining requirements of the notice, third party undertaking or enforcement undertaking.

The percentage must be determined by the market surveillance authority having regard to all the circumstances of the case and may, if appropriate, be 100%.

The notice must include information as to—

If the requirements of the compliance notice, stop notice, third party undertaking or enforcement undertaking are fulfilled before the time set for payment of the non-compliance penalty, the penalty is not payable.

The person on whom the notice imposing the non-compliance penalty is served may appeal against it.

The grounds of appeal are—

withdraw a notice imposing a variable monetary penalty or a notice imposing a non-compliance penalty notice or reduce the amount specified in the notice;

withdraw a compliance notice or stop notice or amend the steps in order to reduce the amount of work necessary to comply with the notice.

Any appeal under this Schedule must be made to the First-tier Tribunal.

An appeal must be brought within 28 days of the date on which the notice or decision is received.

In any appeal (except in relation to a stop notice) where the commission of an offence is an issue requiring determination, the market surveillance authority must prove that offence according to the same burden and standard of proof as in a criminal prosecution.

In any other case the Tribunal must determine the standard of proof.

All notices (other than stop notices) are suspended pending appeal.

The Tribunal may, in relation to the imposition of a requirement or service of a notice—

The market surveillance authority must publish guidance about its use of civil sanctions.

The market surveillance authority must revise and update the guidance where appropriate.

The market surveillance authority must have regard to the guidance or revised and updated guidance in exercising its functions.

In the case of guidance about compliance notices, stop notices, variable monetary penalties and non-compliance penalties the guidance must contain information as to—

In the case of guidance about variable monetary penalties and non-compliance penalties, the guidance must contain information about—

In the case of guidance about enforcement undertakings the guidance must contain information as to—

The market surveillance authority must from time to time publish—

In sub-paragraph (1)(a) the reference to cases in which civil sanctions have been imposed does not include cases where the sanction has been imposed but overturned on appeal.

This paragraph does not apply in cases where the market surveillance authority considers that publication would be inappropriate.