The Construction Products Regulations 1991

• (1) The Secretary of State may revoke or vary a prohibition notice by serving on the supplier a notification stating that the notice is revoked or, as the case may be, is varied as specified in the notification.

• (2) The Secretary of State shall not vary a prohibition notice so as to make the effect of the notice more restrictive for the supplier.

• (3) The service of a notification under sub-paragraph (1) above shall be sufficient to satisfy the requirement of paragraph 4(2) above that the supplier shall be informed of the Secretary of State’s decision.

PART II — NOTICES TO WARN

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• (1) if the Secretary of State proposes to serve a notice to warn on any person in respect of any construction products, the Secretary of State, before he serves the notice, shall serve on that person a notification which–

• (a) contains a draft of the proposed notice;

• (b) states that the Secretary of State proposes to serve a notice in the form of the draft on that person;

• (c) states that the Secretary of State considers that the products described in the draft do not satisfy the relevant requirement in regulation 3;

• (d) sets out the reasons why the Secretary of State considers that the products do not satisfy that requirement; and

• (e) states that that person may make representations to the Secretary of State for the purpose of establishing that the products do satisfy the requirement if, before the end of the period the fourteen days beginning with the day on which the notification is served, he informs the Secretary of State–

• (i) of his intention to make representations; and

• (ii) whether the representations will be made only in writing or both in writing and orally.

• (2) Where the Secretary of State has served a notification containing a draft of a proposed notice to warn on any person, he shall not serve a notice to warn on that person in respect of the products to which the proposed notice relates unless–

• (a) the period of fouteen days beginning with the day on which the notification was served expires without the Secretary of State being informed as mentioned in sub-paragraph (1)(e) above;

• (b) the period of twenty-eight days beginning with that day expires without any written representations being made by that person to the Secretary of State about the proposed notice; or

• (c) the Secretary of State has considered a report about the proposed notice by a person appointed under paragraph 7(1) below.

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• (1) Where a person on whom a notification containing a draft of a proposed notice to warn has been served–

• (a) informs the Secretary of State as mentioned in paragraph 6(1)(e) above before the end of the period of fourteen days beginning with the day on which the notification was served; and

• (b) makes written representations to the Secretary of State about the proposed notice before the end of the period of twenty-eight days beginning with that day,

the Secretary of State shall appoint a person to consider those representations, any further representations made by that person about the draft notice and the statements of any witnesses examined under this Part of this Schedule.

• (2) Where–

• (a) the Secretary of State has appointed a person to consider representations about a notice to warn; and

• (b) the person whose representations are to be considered has informed the Secretary of State for the purposes of paragraph 6(1)(e) above that the representations he intends to make will include oral representations,

the Secretary of State shall inform the person intending to make the representations of the place and time at which oral representations may be made to the appointed person.

• (3) Where a person on whom a notification containing a draft of a proposed notice to warn has been served is informed of a time for the purposes of sub-paragraph (2) above, that time shall not be–

• (a) before the end of the period of twenty-eight days beginning with the day on which the notification was served; or

• (b) before the end of the period of seven days beginning with the day on which that person is informed of the time.

• (4) A person who has been informed of a place and time for the purposes of sub-paragraph (2) above or his representative may, at that place and time–

• (a) make oral representations to the appointed person for the purpose of establishing that the products to which the proposed notice relates satisfy the relevant requirement in regulation 3; and

• (b) call and examine witnesses in connection with the representations.

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• (1) Where a person is appointed to consider representations about a proposed notice to warn, it shall be his duty to consider–

• (a) any written representations made by the person on whom it is proposed to serve the notice; and

• (b) in a case where a place and time has been appointed under paragraph 7(2) above for oral representations to be made by that person or his representative, any representations so made and any statements made by witnesses in connection with those representations,

and, after considering those matters, to make a report (including recommendations) to the Secretary of State about the matters considered by him and the proposal to serve the notice.

• (2) It shall be the duty of the Secretary of State to consider any report made to him under subparagraph (1) above and, after considering the report, to inform the person on whom it was proposed that a notice to warn should be served of his decision with respect to the proposal.

• (3) If at any time after serving a notification on a person under paragraph 6 above the Secretary of State decides not to serve on that person either the proposed notice to warn or that notice with modifications, the Secretary of State shall inform that person of the decision; and nothing done for the purposes of any of the preceding provisions of this Part of this Schedule before that person was so informed shall–

• (a) entitle the Secretary of State subsequently to serve the proposed notice or that notice with modifications; or

• (b) require the Secretary of State, or any person appointed to consider representations about the proposed notice, subsequently to do anything in respect of, or in consequence of, any such representations.

• (4) Where a notification containing a draft of a proposed notice to warn is served on a person in respect of any products, a notice to warn served on him in consequence of a decision made under sub-paragraph (2) above shall either be in the form of the draft or shall be less onerous than the draft.

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The Secretary of State may revoke a notice to warn by serving on the person on whom the notice was served a notification stating that the notice is revoked.

PART III — GENERAL

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• (1) Where in a notification served on any person under this Schedule the Secretary of State has appointed a time for the making of oral representations or the examination of witnesses, he may, by giving that person such notification as the Secretary of State considers appropriate, change the time to a later time or appoint further times at which further representations may be made or the examination of witnesses may be continued; and paragraphs 2(4), 3(4) and 7(4) above shall have effect accordingly.

• (2) For the purposes of this Schedule the Secretary of State may appoint a person (instead of the appointed person) to consider any representations or statements, if the person originally appointed, or last appointed under this sub-paragraph, to consider those representations or statements has died or appears to the Secretary of State to be otherwise unable to act.

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In this Schedule–

• “the appointed person”, in relation to a prohibition notice or a proposal to serve a notice to warn, means the person for the time being appointed under this Schedule to consider representations about the notice or, as the case may be, about the proposed notice;

• “notification” means a notification in writing;

• “supplier”, in relation to a prohibition notice, means the person on whom the notice is or was served.

Signed

Michael Heseltine — One of Her Majesty’s Principal Secretaries of State — 15th July 1991

Explanatory note

(This note is not part of the Regulations)

These Regulations implement Council Directive 89/106/EEC on the approximation of laws, regulations and administrative provisions of the member States relating to construction products “the Directive”. The Directive is based on the Council resolution of 7th May 1985 on a new approach to technical harmonisation and standards (OJ No. C136, 4.6.85, p. 1).

Regulation 3(1) requires construction products, except “minor part products” (this and other expressions are defined in regulation 2), to have such characteristics that the works in which they are incorporated can, if properly designed and built, satisfy essential requirements insofar as those requirements apply to the works. The essential requirements, which are expressed in terms of general objectives in Schedule 2, will be given concrete form in interpretive documents published in the Official Journal of the European Communities. The interpretative documents will in turn lead to the formulation of harmonised standards for construction products; these standards will be transposed into “relevant national standards”.

Regulation 4 provides that in the case of a construction product which bears the EC mark denoting conformity with the relevant technical specifications applicable to that product there shall be a presumption that the product satisfies the relevant requirement in regulation 3.

The EC mark may be affixed to a construction product which is not a minor part product by the manufacturer or his agent in the United Kingdom if the criteria set out in regulation 5(1) are satisfied. Those criteria involve the attestation, by means of an EC certificate or declaration of conformity, that the product complies with a relevant technical specification. The EC mark is to be accompanied by the information described in regulation 5(2). In the case of products bearing the EC mark, regulation 6 requires certain people to keep available and produce the EC certificate or declaration of conformity or a copy of it. Regulation 7 requires the supplier of a product which is not so marked to provide information about the product.

Regulation 5(3) makes it an offence to make an EC declaration of conformity in respect of, or to affix the EC mark to, a construction product otherwise than in accordance with the Regulations. Where the EC mark has been affixed otherwise than in accordance with the Directive, it is also an offence to supply a construction product on the first occasion when it is supplied in the Community.

In the case of minor part products the Regulations require that they shall have been, and declared to have been, manufactured in accordance with the acknowledged rule of technology (regulation 3(3)).

Regulation 8 makes it an offence to supply a construction product which does not satisfy the requirement in regulation 3.

Regulations 9 to 14, which are similar in form to sections 13 to 18 of the Consumer Protection Act 1987 (c. 43) “the 1987 Act”, enable action to be taken to remove from the market construction products which do not satisfy the requirements of the Regulations. The Secretary of State may serve a notice prohibiting a person from supplying a product (a prohibition notice), requiring him to publish a warning about products supplied (a notice to warn), or requiring him to provide information to enable the Secretary of State to decide whether to exercise these powers. Failure to comply with such a notice is an offence. Enforcement authorities may apply to the court for an order that products be forfeited.

Parts III and IV are similar to Parts IV and V of the 1987 Act. Regulations 16 to 18 confer powers on officers of enforcement authorities to make test purchases, search premises and examine, seize and detain products and records, and regulation 19 permits a customs officer to seize and detain imported products. Regulation 20 creates offences of obstructing an officer with enforcement powers, failing to comply with any requirement made under the Regulations by such an officer, failing to provide information and making false statements to such an officer. Regulation 21 confers a right of appeal against the detention of a product and regulation 22 provides for compensation to be payable in certain circumstances in respect of loss or damage resulting from the seizure and detention of products. Regulation 23 provides that where a court convicts a person of an offence under Part II or makes an order for forfeiture of any products it may order the person concerned to reimburse the enforcement authority’s expenses of seizing and detaining or forfeiting the products.

Regulation 24 permits the Commissioners of Customs and Excise to disclose information relating to imported products to enforcement authorities and their officers. Regulation 25 imposes restrictions on the disclosure of information obtained in the exercise of the powers conferred by the Regulations. Regulation 26 applies a defence of due diligence to certain offences under the Regulations. Regulation 27 provides for the liability of persons whose act or default leads to the commission of an offence by others. Regulations 28 to 31 contain miscellaneous provisions relating to the service of documents, savings for certain privileges, notifications to the Secretary of State and the commencement of proceedings for certain offences.

Regulation 32 provides that it is unlawful for public and certain other bodies to make, impose or enforce any rules or conditions relating to matters covered by the essential requirements which would have the effect of restricting the supply or use of products, which satisfy the relevant requirement in regulation 3.

Regulation 33 makes provision in respect of certain cases where there may be an overlap between the Regulations and the health and safety at work legislation.

Footnotes

[^f00001]: S.I. 1989/2393.

[^f00002]: 1972 c. 68.

[^f00003]: OJ No. L40, 11.2.89, p. 12.

[^f00004]: S.I. 1981/1675 (N.I. 26).

[^f00005]: 1950 c. 27.

[^f00006]: 1937 c. 8 (N.I.).

[^f00007]: 1980 c. 43.

[^f00008]: S.I. 1981/1675 (N.I. 26).

[^f00009]: 1975 c. 21; section 310 was amended by the Criminal Justice (Scotland) Act 1980 (c. 62), Schedule 7, paragraph 53, and Schedule 8.

[^f00010]: Section 452 was substituted by the Criminal Justice (Scotland) Act 1980, Schedule 3, paragraph 11.

[^f00011]: 1979 c. 2.

[^f00012]: 1971 c. 80.

[^f00013]: 1980 c. 43.

[^f00014]: S.I. 1981/1675 (N.I. 26).

[^f00015]: 1950 c. 27.

[^f00016]: 1937 c. 8 (N.I.).

[^f00017]: 1978 c. 30.

[^f00018]: 1974 c. 37.

[^f00019]: S.I. 1978/1039 (N.I. 9).

[^f00020]: Section 22 was amended by the Consumer Protection Act 1987 (c. 43), section 36 and Schedule 3, paragraph 2.

[^f00021]: Relevant amending instruments are S.I. 1984/1159 (N.I. 9) and 1987/2049 (N.I. 20).