Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 5th December, 2023.

I, SIMON COVENEY, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) (as amended by section 2 of the European Communities Act 2007 (No. 18 of 2007)) and for the purpose of giving full effect to Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019¹ and of giving further effect to Directive 2014/32/EU of the European Parliament and of the Council of 26 February 2014² , hereby make the following regulations:

1. (1) These Regulations may be cited as the Legal Metrology (European Conformity Assessment of Measuring Instruments) (Amendment) Regulations 2023.

(2) In these Regulations “2018 Regulations” means Legal Metrology (European Conformity Assessment of Measuring Instruments) Regulations 2018 ( S.I. No. 2 of 2018 ).

(3) These Regulations and the 2018 Regulations may be cited collectively as the Legal Metrology (European Conformity Assessment of Measuring Instruments) Regulations 2018 and 2023.

(4) References in the 2018 Regulations to “these Regulations” shall, unless the context otherwise requires, be deemed to encompass the 2018 Regulations and these Regulations.

(5) A word or expression that is used in these Regulations unless the context otherwise requires, has the same meaning that it has in the 2018 Regulations.

(6) A word or expression that is used in these Regulations or in the 2018 Regulations and is also used in Regulation (EU) 2019/1020 or the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in Regulation (EU) 2019/1020 and the Directive.

(7) References to Articles 16 to 29 of Regulation (EC) 765/2008 in the 2018 Regulations shall be construed as references to Regulation (EU) 2019/1020 and shall be read in accordance with the correlation table in Annex III to Regulation (EU) 2019/1020.

(8) Any reference to the entirety of Regulation (EC) 765/2008 in the 2018 Regulations shall, to the extent that it refers to Articles 16 to 29 of Regulation (EC) 765/2008, be construed as a reference to Regulation (EU) 2019/1020 and shall be read in accordance with the correlation table in Annex III to Regulation (EU) 2019/1020.

2. (1) Regulation 2(1) of the 2018 Regulations is amended by inserting the following—

‘Member State’ means a Member State of the European Union and, in so far as may be necessary to give effect to the obligations of the State pursuant to the Agreement on the European Economic Area signed in Oporto on 2 May 1992³ , shall be construed as including a reference to a State (not being a Member State of the European Union) which is a contracting party to that Agreement;

‘person in charge’ means, in relation to a place—

(a) the person under whose direction and control the activities at that place are being conducted, or

(b) the person whom the authorised officer has reasonable grounds for believing is the person referred to in subparagraph (a);

‘Regulation (EU) 2019/1020’ means Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No. 765/2008 and (EU) No. 305/2011;

‘market surveillance authority’ means–

(a) in the State, the Director, or

(b) in another Member State, any authority or body designated as market surveillance authority by that Member State for the purposes of the Directive;

(2) Regulation 2(3) of the 2018 Regulations is revoked.

3. Paragraph (2) of Regulation 4 of the 2018 Regulations is amended by substituting “complies with the Directive and Regulation (EU) 2019/1020” for “complies with the Directive”.

4. The 2018 Regulations are amended by the insertion in Part 2 before Regulation 7 of the following:

“PART 2

Obligations of economic operators and information society service providers

Obligations of economic operators and information society service providers”

6A. (1) An economic operator in respect of a measuring instrument, including a manufacturer, authorised representative, importer, distributor or fulfilment service provider, shall comply with the obligations set out in this Part 2 and in Articles 4 and 5 of Regulation (EU) 2019/1020.

(2) An economic operator shall comply with its obligation to cooperate with the market surveillance authority in the State as set out in Article 7(1) of Regulation (EU) 2019/1020.

(3) An information society service provider shall comply with its obligation to cooperate with the market surveillance authority in the State as set out in Article 7(2) of Regulation (EU) 2019/1020.

(4) A measuring instrument offered for sale online or through means of distance sales shall be deemed to be made available on the market if the offer is targeted at end users in a Member State. An offer for sale shall be considered to be targeted at end users in a Member State if the relevant economic operator directs, by any means, its activities to that Member State.”

5. The 2018 Regulations are amended by the insertion after Regulation 33 of the following:

“General

33A. (1) The Director may use, as part of an investigation to verify the compliance of a measuring instrument, evidence that has been used by a market surveillance authority in another Member State without further formal requirements.

(2) The Director may use any information, document, finding, statement or intelligence as evidence for the purpose of an investigation, irrespective of the format in which and medium on which it is stored.

Procedural rights

33B. (1) In this paragraph, a reference to “measure” refers to a measure, decision or notice issued by or under Regulation 30, 31, 32 or 33.

(2) A measure referred to in paragraph (1) shall—

(a) specify the exact grounds for the measure,

(b) specify every provision (including the particular paragraph and subparagraph of such provision as appropriate) upon which the measure is based,

(c) inform the person on whom the measure is served that he or she may appeal the notice to the District Court within 14 days in accordance with paragraph (5),

(d) state that if the person on whom the measure is served fails to comply with the measure within the time period specified in the measure, that person commits an offence,

(e) be signed and dated by the authorised officer or Director, and

(f) be communicated to the relevant person without delay.

(3) Subject to paragraph (4), in the case of a measuring instrument which the authorised officer does not consider to present a serious risk requiring rapid intervention under Article 19 of Regulation (EU) 2019/1020, the intended recipient of a measure shall have the opportunity to make representations to the Director within 10 working days of first being advised of the authorised officer’s intention to serve a measure on that person.

(4) Where an opportunity to make representations referred to in paragraph (3) is not possible because of the urgency of the measure, as justified by grounds relating to public interests, the Director shall give the recipient of the notice the opportunity to be heard as soon as possible after the service of the measure on that person and the service of the measure shall be reviewed promptly thereafter.

(5) A person on whom a measure is served may, within 14 days beginning on the day on which the measure is served on him or her, appeal against the measure to a judge of the District Court in the District Court district in which the measure was served and in determining the appeal the judge may, if he or she considers it appropriate to do so, confirm, vary or cancel the measure.

(6) A person who appeals under paragraph (5) shall at the same time notify the Director of the appeal and the grounds for the appeal and the Director shall be entitled to appear, be heard and adduce evidence at the hearing of the appeal.

(7) Where a decision is made under paragraph (5), any person aggrieved may, within 14 days beginning on the day on which the decision was made, appeal it to the Circuit Court in the circuit in which the measure was served and in determining the appeal, the court may, if it considers it appropriate to do so, confirm the decision of the District Court, vary it or allow the appeal.

(8) A decision under paragraph (7) shall be final, save that, by leave of the High Court, an appeal from the decision shall lie to the High Court on a specified question of law.”

6. Regulation 34(1) is amended by substituting “these Regulations, the Directive and Regulation (EU) 2019/1020” for “these Regulations and the Directive”.

7. The 2018 Regulations are amended by inserting after Regulation 34 the following:

“(a) by inserting after Regulation 34 the following:

“Powers of authorised officers (Regulation (EU) 2019/1020)

34A. (1) Without prejudice to any power or powers under any other provision of these Regulations, an authorised officer shall, for the purposes of enforcement of Regulation (EU) 2019/1020 and these Regulations, have the power to do one or more of the following:

(a) subject to paragraphs (3) and (5), enter at any time without warrant any premises, land or means of transport that the economic operator in question uses for purposes related to the economic operator’s trade, business, craft or profession, in order to identify non-compliance and to obtain evidence;

(b) make inquiries in respect of, search, examine or inspect, as appropriate—

(i) any place, or any part of any place, referred to in subparagraph (a),

(ii) any activity, process, procedure, matter or thing at, or carried on at, a place referred to in subparagraph (a),

(iii) any measuring instrument or any record relating to such instrument to ascertain whether the Directive, Regulation (EU) 2019/1020 or these Regulations have been or are being complied with and, for that purpose, take with him or her and use any equipment or materials he or she considers necessary;

(c) require that a place referred to in subparagraph (a) and its contents remain undisturbed for as long as is reasonably necessary for the purposes of any inquiry, search, examination, investigation or inspection under the Directive, Regulation (EU) 2019/1020 or these Regulations;

(d) require any person in charge of, employed at or other relevant person at, a place referred to in subparagraph (a) to—

(i) produce to the authorised officer any measuring instrument or any partly completed measuring instrument in the possession or under the control of the person,

(ii) produce to the authorised officer any books, documents or records, and where such books, documents or records are kept in a non-legible form, reproduce them in a legible form, and

(iii) give to the authorised officer such information as the authorised officer may reasonably require in relation to any entries in the books, documents and records referred to in clause (ii);

(e) inspect and take copies of or extracts from any books, documents or records or any electronic information system at a place referred to in subparagraph (a), including in the case of information in a non-legible form, copies of or extracts from such information in a permanent legible form, or require that such copies or extracts be provided;

(f) require a person in charge of, employed at or other relevant person at a place referred to in subparagraph (a) by whom or on whose behalf a computer is or has been used to produce or store records or require any other person having control of, or otherwise concerned with, the operation of the computer, to afford the authorised officer access to the records on that computer and all reasonable assistance as the authorised officer may require in respect of accessing such records;

(g) remove from a place referred to in subparagraph (a) and detain any books, documents or records (including any information stored in a non-legible form) and any copies taken of such books, documents or records for such period as the authorised officer reasonably considers necessary for further examination or until the conclusion of any legal proceedings to which they relate;

(h) require that any books, documents or records at a place referred to in subparagraph (a) be maintained for such period as may be reasonable;

(i) require the person in charge of, employed at or other relevant person at a place referred to in subparagraph (a) to give the authorised officer such information as the authorised officer may reasonably require for the purposes of any inquiry, search, examination, investigation or inspection under the Directive, Regulation (EU) 2019/1020 or these Regulations;

(j) require the person in charge of, employed at or other relevant person at a place referred to in subparagraph (a) to give the authorised officer such assistance and facilities within the person’s power or control as are reasonably necessary to enable the authorised officer to exercise any of his or her powers under these Regulations;

(k) require any person (whether such person is at a place referred to in subparagraph (a) or otherwise) to produce to the authorised officer any records that the authorised officer may reasonably require that are under power or control of that person;

(l) examine any person (whether such person is at a place referred to in subparagraph (a) or otherwise) whom the authorised officer reasonably believes to be able to give to the authorised officer information relevant to any inquiry, search, examination, investigation or inspection under Regulation (EU) 2019/1020 or these Regulations and require the person to answer such questions as the authorised officer may ask relevant to the inquiry, search, examination, investigation or inspection and to sign a declaration of the truth of the answers;

(m) require that any procedure be followed for the purposes of any inquiry, search, examination, investigation or inspection under Regulation (EU) 2019/1020 or these Regulations;

(n) take any measurements or photographs or make any tape, electrical or other recordings that the authorised officer considers necessary for the purposes of any inquiry, search, examination, investigation or inspection under Regulation (EU) 2019/1020 or these Regulations;

(o) where appropriate, install, use and maintain at a place referred to in subparagraph (a) monitoring instruments, systems and seals for the purposes of Regulation (EU) 2019/1020 or these Regulations;

(p) cause any measuring instrument found at any place to be subjected, at the place it is found or any other location, to any testing, examination or analysis (but not so as to damage or destroy it unless this is necessary for the purposes of Regulation (EU) 2019/1020 or these Regulations) and where an authorised officer proposes to exercise the power conferred by this subparagraph and if so requested by the person in charge, cause anything that is to be done by virtue of this subparagraph to be done in the presence of the person in charge save that the person in charge is responsible for his or her own costs in attending at the exercise of any power under this subparagraph and cannot unreasonably delay the authorised officer in the exercise of those powers;

(q) For the purposes of exercising a power under subparagraph (p)—

(i) require the person in charge to supply to the authorised officer without charge any measuring instrument or samples thereof, and

(ii) where necessary, remove, or have removed, to another location any measuring instrument or samples thereof;

(r) remove and retain for such period as is necessary any measuring instrument found at a place for one or more of the following purposes:

(i) to examine or arrange for the examination, testing or analysis of such instrument in accordance with subparagraph (p);

(ii) to ensure that such instrument is not tampered with before the examination, testing or analysis of it under clause (i) is completed;

(iii) to ensure that such instrument is available for use as evidence in any proceedings;

(s) require an economic operator to provide any relevant document, technical specification, data or information on compliance and technical aspects of instruments, including providing access to embedded software in so far as such access is necessary for the purpose of assessing the compliance of any measuring instrument with these Regulations and the Directive, in any form or format and irrespective of the medium of storage or the place where such document, technical specification, data or information is stored;

(t) take or obtain copies of any document, technical specification, data or information referred to in subparagraph (s);

(u) require an economic operator to provide relevant information on the supply chain, on the details of the distribution network, on quantities of measuring instruments on the market and on other product models that have the same technical characteristics as the products in question, where relevant for compliance with the applicable requirements in these Regulations or the Directive;

(v) require an economic operator to provide relevant information required for the purpose of ascertaining the ownership of a website, where the information in question is related to the subject matter of an investigation;

(w) require an economic operator to provide any other information that is relevant for compliance;

(x) acquire product samples, including under a cover identity, to inspect those samples and to reverse engineer them in order to identify non-compliance and to obtain evidence;

(y) where no other effective means are available to eliminate a serious risk—

(i) require the removal of content referring to the relevant measuring instrument from an online interface or require the explicit display of a warning to end users when they access an online interface; or

(ii) where a request under clause (i) has not been complied with, require an information society service provider to restrict access to the online interface, including by requesting a relevant third party to implement such measures.

(2) Where a measuring instrument is found at a place referred to in paragraph (1)(p), and an inquiry is made by an authorised officer in the course of a search, examination, investigation or inspection as to the identity of the person who supplied the measuring instrument, the person in charge shall give the authorised officer the name and address of the supplier from whom such instrument was purchased or otherwise obtained.

(3) An authorised officer shall not enter a private dwelling other than—

(a) with the consent of the occupier, or

(b) in accordance with a warrant of the District Court issued under paragraph (6) authorising such entry.

(4) The Director may authorise such and so many other persons as he or she considers appropriate to accompany an authorised officer in the performance of his or her functions.

(5) Where an authorised officer is prevented from entering a place referred to in paragraph (1)(a), or in any other case where the authorised officer reasonably believes that entry to such a place will be prevented, the authorised officer may apply to a judge of the District Court in whose District Court district the place is situated for a warrant authorising entry of such place.

(6) Where an application is made under paragraph (5), if a judge of the District Court is satisfied by information on oath of an authorised officer that there are reasonable grounds for believing that—

(a) there is at any place any measuring instrument or any books, documents, records or information (including information stored in a non-legible form) relating to a measuring instrument that the authorised officer requires to inspect for the purposes of Regulation (EU) 2019/1020 or these Regulations,

or

(b) there is, or is likely to be, at a place referred to in subparagraph (a) evidence of a contravention of the Directive, Regulation (EU) 2019/1020 or these Regulations,

the judge may issue a warrant authorising an authorised officer, accompanied by such other authorised officers or such other competent persons as may be appropriate or members of the Garda Síochána as may be necessary, at any time or times, within one month from the date of issue of the warrant, on production of the warrant if requested, to enter the place specified in the warrant, if necessary by the use of reasonable force, and perform the functions conferred on an authorised officer by these Regulations.

(7) Where an authorised officer has reasonable grounds for apprehending any serious obstruction in the performance of any of his or her functions or otherwise considers it necessary, he or she may be accompanied by a member or members of the Garda Síochána and by any other person or persons authorised by the Director, when performing any functions conferred on him or her by or under Regulation (EU) 2019/1020 or these Regulations.

(8) Where an authorised officer, upon reasonable grounds, believes that a person has committed an offence under these Regulations he or she may require the person to provide him or her with the person’s name and the address at which that person ordinarily resides.

(9) A statement or admission made by a person pursuant to a requirement under paragraph (1)(i) or (l) shall not be admissible in proceedings brought against that person for any offence other than an offence under Regulation 39(7) relating to a breach of, or failure to comply with, any obligation in the said paragraph (1)(i) or (l).

(10) In this Regulation, reference to a measuring instrument shall be deemed to include any article, device, part, component or constituent materials of a measuring instrument or which could be used to interfere with correct operation of a measuring instrument.

(11) In this regulation, reference to the purposes of enforcement of Regulation (EU) 2019/1020 includes reference to the enforcement of the Directive and these Regulations where Regulation EU 2019/1020 so requires it.

Contravention notice

34B. (1) Without prejudice to any power or powers under any other provision of these Regulations, an authorised officer who is of the opinion that an economic operator or information society service provider is contravening or has contravened any of the provisions of the Directive, Regulation (EU) 2019/1020 or these Regulations or that any measuring instrument does not comply with the Directive, Regulation (EU) 2019/1020 or these Regulations for the purposes of Article 28(2) of Regulation (EU) 2019/1020 may serve a contravention notice on the relevant economic operator or information society service provider.

(2) A contravention notice shall—

(a) state that the authorised officer is of the opinion referred to in paragraph (1),

(b) specify the exact grounds for the opinion,

(c) specify every provision (including the particular paragraph and subparagraph of such provision as appropriate) upon which the opinion is based,

(d) direct that the person, where required, do one or more of the following:

(i) remedy the contravention or the matters occasioning the contravention notice;

(ii) refrain from placing on the market the measuring instrument to which the notice relates;

(iii) refrain from making available on the market that instrument;

(iv) withdraw that instrument from the market;

(v) recall that instrument;

(vi) dispose of that instrument;

(vii) destroy that instrument;

(viii) by a date specified in the contravention notice that shall not be earlier than the expiration of the period within which an appeal may be made under Regulation 34C,

(ix) inform the person on whom the contravention notice is served that he or she may appeal the notice to the District Court within 14 days in accordance with Regulation 34C,

(x) state that if the person on whom the contravention notice is served fails to comply with the notice within the time period specified in the notice, that person commits an offence,

(xi) be signed and dated by the authorised officer, and

(xii) be communicated to the relevant person without delay

(3) A contravention notice may include—

(a) directions as to the measures to be taken to remedy any contravention or matter to which the contravention notice relates, or to otherwise comply with the notice,

(b) directions to bring the contravention notice to the attention of any person who may be affected by it or to the attention of the public generally,

and

(c) any other requirement that the authorised officer considers appropriate.

(4) Subject to Regulation 34C(5), the contravention notice shall take effect on the later of—

(a) the expiration of the period for making an appeal to the District Court, or

(b) the day specified in the contravention notice.

(5) A person on whom a contravention notice has been served under paragraph (1) shall comply with the notice.

(6) A person on whom a contravention notice has been served who is of the opinion that the notice has been complied with, shall confirm such compliance in writing to the authorised officer.

(7) Where a person on whom a contravention notice has been served confirms such compliance in accordance with paragraph (6), the authorised officer, on being satisfied that the person has complied with the notice, shall within one month of receipt of such confirmation, give notice to the person of compliance with the contravention notice.

(8) An authorised officer may—

(a) withdraw or amend a contravention notice at any time, or

(b) where no appeal is made or pending under Regulation 34C, extend the period specified under paragraph (2)(d) of this Regulation.

(9) Subject to paragraph (10), in the case of a measuring instrument which the authorised officer does not consider to present a serious risk requiring rapid intervention under Article 19 of Regulation (EU) 2019/1020, the intended recipient of a contravention notice shall have the opportunity to make representations to the Director within 10 working days of first being advised of the authorised officer’s intention to serve a contravention notice on that person.

(10) Where an opportunity to make representations referred to in paragraph (9) is not possible because of the urgency of the measure directed in the contravention notice as referred to in the said paragraph (9), as justified by grounds relating to public interests, the Director shall give the recipient of the notice the opportunity to be heard as soon as possible after the service of the notice on that person and the service of the notice shall be reviewed promptly thereafter.

Appeal against contravention notice

34C. (1) A person on whom a contravention notice is served may, within 14 days beginning on the day on which the notice is served on him or her, appeal against the notice to a judge of the District Court in the District Court district in which the notice was served and in determining the appeal the judge may, if he or she considers it appropriate to do so, confirm, vary or cancel the notice.

(2) A person who appeals under paragraph (1) shall at the same time notify the Director of the appeal and the grounds for the appeal and the Director shall be entitled to appear, be heard and adduce evidence at the hearing of the appeal.

(3) Where a decision is made under paragraph (1), any person aggrieved may, within 14 days beginning on the day on which the decision was made, appeal it to the Circuit Court in the circuit in which the contravention notice was served and in determining the appeal, the court may, if it considers it appropriate to do so, confirm the decision of the District Court, vary it or allow the appeal.

(4) A decision under paragraph (3) shall be final, save that, by leave of the High Court, an appeal from the decision shall lie to the High Court on a specified question of law.

(5) Where an appeal is taken and the contravention notice is not withdrawn by the authorised officer, the notice shall take effect on the later of—

(a) the day next following the day on which the contravention notice is confirmed or varied on final appeal,

(b) the day next following the day on which the appeal is discontinued, or

(c) the day specified in the contravention notice.

Order of High Court to direct compliance with contravention notice

34D. (1) Where a person fails to comply with a contravention notice an authorised officer may apply ex parte to the High Court for an order directing immediate compliance with the notice.

(2) The High Court may, upon an application under this Regulation, if satisfied that the person on whom the contravention notice is served has failed to comply with the notice, grant the order referred to in paragraph (1).

Instrument presenting a serious risk

34E. (1) A decision taken by the Director as to whether or not any measuring instrument presents a serious risk shall be based on an appropriate risk assessment that takes account of the nature of the hazard and the likelihood of its occurrence.

(2) The feasibility of obtaining higher levels of safety and the availability of other products presenting a lesser degree of risk shall not constitute grounds for considering that a product presents a serious risk.

Prohibition notice — instrument presenting a serious risk

34F. (1) Without prejudice to any power or powers under any other provision of these Regulations, where an authorised officer is of the opinion that a measuring instrument presents, or is likely to present, a serious risk to the health or safety of persons, including a serious risk the effects of which are not immediate, the authorised officer may serve a prohibition notice on a person, regardless of whether or not there is or is likely to be a contravention of the Directive, Regulation (EU) 2019/1020 or these Regulations.

(2) For the avoidance of doubt, where any measuring instrument does not have any marking (on its packaging or otherwise) or document required under the Directive, Regulation (EU) 2019/1020 or these Regulations, an authorised officer may form an opinion referred to in paragraph (1).

(3) A prohibition notice may be served on any person the authorised officer has reasonable grounds for believing is in a position to take the measures specified in the notice.

(4) A prohibition notice shall—

(a) state that the authorised officer is of the opinion referred to in paragraph (1),

(b) specify the exact grounds for the opinion,

(c) where in the opinion of the authorised officer there is or is likely to be a contravention of any provision of the Directive, Regulation (EU) 2019/1020 or these Regulations, specify every such provision (including the particular paragraph and subparagraph of such provision as appropriate),

(d) prohibit any activity of the person on whom the prohibition notice is served that results in the measuring instrument referred to in paragraph (1) being placed on the market or made available on the market,

(e) inform the person on whom the prohibition notice is served that he or she may appeal the notice to the District Court within 7 days in accordance with Regulation 34G,

(f) state that if the person on whom the prohibition notice is served fails to comply with the notice, that person commits an offence,

(g) be signed and dated by the authorised officer,

(h) be communicated to the relevant person without delay.

(5) A prohibition notice may include—

(a) directions as to the measures to be taken by the relevant person to stop the activity referred to in paragraph (4)(d), to remedy any contravention of the Directive, Regulation (EU) 2019/1020 or these Regulations or any matter to which the prohibition notice relates, or to otherwise comply with the notice, including directions to do one or more of the following regarding the measuring instrument referred to in paragraph (1):

(i) refrain from placing on the market the measuring instrument;

(ii) refrain from making available on the market the measuring instrument;

(iii) withdraw the measuring instrument from the market;

(iv) recall the measuring instrument;

(v) dispose of the measuring instrument;

(vi) destroy the measuring instrument;

(b) directions to bring the prohibition notice to the attention of any person who may be affected by it, or to the attention of the public generally,

and

(c) any other requirement that the authorised officer considers appropriate.

(6) Subject to Regulation 34G(9), a prohibition notice shall take effect immediately at the time the notice is received by the person on whom it is served.

(7) A person on whom a prohibition notice has been served under paragraph (1) shall comply with the notice.

(8) A person on whom a prohibition notice has been served who is of the opinion that the notice has been complied with, shall confirm such compliance in writing to the authorised officer.

(9) Where a person on whom a prohibition notice has been served confirms such compliance in accordance with paragraph (8), the authorised officer, on being satisfied that the person has complied with the notice, shall within one month of receipt of such confirmation give notice to the person of compliance with the prohibition notice.

(10) An authorised officer may at any time withdraw a prohibition notice if—

(a) the authorised officer is satisfied that the measuring instrument to which the prohibition notice relates no longer gives rise to a serious risk to health or safety of persons, or

(b) the authorised officer is satisfied that the prohibition notice was issued in error or is incorrect in some material respect.

(11) The Director shall give the recipient of a prohibition notice an opportunity to make representations as soon as possible after the service of the notice on that person and the service of the notice shall be reviewed promptly thereafter.

Appeal against prohibition notice

34G. (1) A person on whom a prohibition notice is served may, within 7 days beginning on the day on which the notice is served on him or her, appeal against the notice to a judge of the District Court in the District Court district in which the notice was served and in determining the appeal the judge may, if he or she considers it appropriate to do so, confirm, vary or cancel the notice.

(2) A person who appeals under paragraph (1) shall at the same time notify the Director of the appeal and the grounds for the appeal and the Director shall be entitled to appear, be heard and adduce evidence at the hearing of the appeal.

(3) Where a decision is made under paragraph (1), any person aggrieved by that decision may, within 7 days beginning on the day on which the decision was made, appeal it to the Circuit Court in the circuit in which the prohibition notice was served and in determining the appeal, the court may, if it considers it appropriate to do so, confirm the decision of the District Court, vary it or allow the appeal.

(4) A decision under paragraph (3) shall be final, save that, by leave of the High Court, an appeal from the decision shall lie to the High Court on a specified question of law.

(5) Subject to paragraph (6), the bringing of an appeal against a prohibition notice shall not have the effect of suspending the operation of the notice.

(6) Where a person brings an appeal under this Regulation, the appellant may apply to the court determining the appeal (being the District Court, Circuit Court or High Court) to have the operation of the prohibition notice suspended until the determination or discontinuation of the appeal before that court and, on such application, the court may, if it thinks proper to do so, grant the application.

(7) Where, on the hearing of an appeal under this Regulation, a prohibition notice is not cancelled, notwithstanding paragraph (6), the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case the judge considers appropriate.

(8) A person who applies for the suspension of the operation of a prohibition notice shall at the same time notify the Director of the application and the grounds for the application.

(9) Where an appeal is brought under this Regulation and the court (being the District Court, Circuit Court or High Court) has granted a suspension on the operation of the prohibition notice, the prohibition notice shall take effect on the later of—

(a) the day next following the day on which the notice is confirmed or varied on final appeal,

(b) the day next following the day on which the appeal is discontinued, or

(c) the day next following the expiration of the period of final suspension.

Order of High Court to direct compliance with prohibition notice

34H. (1) Where a person fails to comply with a prohibition notice an authorised officer may apply ex parte to the High Court for an order directing immediate compliance with the notice.

(2) The High Court may, upon an application under this Regulation, if satisfied that the person on whom the prohibition notice is served has failed to comply with the notice, grant an order referred to in paragraph (1).

Seizure notice — seizure and disposal of instrument presenting a serious risk

34I. (1) Without prejudice to any power or powers under any other provision of these Regulations, where an authorised officer is of the opinion that a measuring instrument presents a serious risk, the authorised officer or any person directed by the authorised officer, may seize and destroy or dispose of the measuring instrument in such manner and such time and place as the authorised officer may direct.

(2) The authorised officer may require the economic operator relating to the measuring instrument referred to in paragraph (1), where known, to reimburse the cost or any portion of the cost of any measure taken under that paragraph.

(3) An authorised officer who has seized, or intends to seize, any measuring instrument under paragraph (1) shall serve a seizure notice on the economic operator relating to the measuring instrument, which seizure notice shall—

(a) state that the measuring instrument has been or is intended to be seized and that it is intended to destroy or dispose of the measuring instrument,

(b) specify the exact grounds for the seizure and intended destruction or disposal of the measuring instrument,

(c) where in the opinion of the authorised officer there is or is likely to be a contravention of any provision of the Directive, Regulation (EU) 2019/1020 or these Regulations, specify every such provision (including the particular paragraph and subparagraph of such provision as appropriate),

(d) inform the person on whom the seizure notice is served that he or she may appeal the notice to the District Court within 21 days in accordance with this Regulation,

and

(e) be signed and dated by the authorised officer.

(4) A person on whom a seizure notice is served may, within 21 days beginning on the day on which the seizure notice is served on him or her, appeal against the notice to the appropriate court (as defined in paragraph (17)) and in determining the appeal, the court may, if it considers it appropriate to do so, confirm, vary or cancel the notice or make any other order as it considers appropriate.

(5) An appeal under paragraph (4) shall state the grounds on which the appeal is made and shall be made by written notice, which notice shall be lodged with the office of the appropriate court.

(6) A person who appeals under paragraph (4) shall at the same time furnish a copy of the notice referred to in paragraph (5) to the Director and the Director shall be entitled to appear, be heard and adduce evidence at the hearing of the appeal.

(7) If, during the hearing of an appeal under paragraph (4) to the District Court, that court forms the opinion that the value of the measuring instruments the subject of the appeal exceeds that court’s jurisdiction in tort, it may, if it so thinks fit, transfer the appeal to the Circuit Court or the High Court, whichever it considers appropriate having regard to its opinion of the value of the measuring instruments.

(8) If, during the hearing of an appeal under paragraph (4) to the Circuit Court, that court forms the opinion that the value of the measuring instruments the subject of the appeal, exceeds that court’s jurisdiction in tort, it may, if it so thinks fit, transfer the appeal to the High Court.

(9) Paragraphs (7) and (8) are without prejudice to the jurisdiction of a court (being either the District Court or the Circuit Court) to determine an appeal under paragraph (4) in relation to which it was, at the time of the hearing of the appeal, the appropriate court.

(10) Where a decision is made under paragraph (4), any person aggrieved may, within 21 days beginning on the day on which the decision was made, appeal the decision to the following court:

(a) where the decision under paragraph (4) was made by the District Court, the Circuit Court;

(b) where the decision under paragraph (4) was made by the Circuit Court, the High Court;

(c) where the decision under paragraph (4) was made by the High Court, the Court of Appeal.

(11) On hearing an appeal under paragraph (10), the court may, if it considers it appropriate to do so, confirm the decision of the appropriate court, vary it or allow the appeal.

(12) A decision under paragraph (11) of the Circuit Court shall be final, save that, by leave of the High Court, an appeal from the decision shall lie to the High Court on a specified question of law.

(13) A decision under paragraph (11) of the High Court shall be final, save that, by leave of the Court of Appeal, an appeal from the decision shall lie to the Court of Appeal on a specified question of law.

(14) An appeal under paragraph (4) to the District Court shall be determined by a judge of the District Court for the District Court district in which the measuring instruments the subject of the appeal were placed on the market or the appellant ordinarily resides.

(15) An appeal under this Regulation (whether under paragraph (4) or (10)) to the Circuit Court shall be determined by a judge of the Circuit Court for the circuit in which the measuring instruments the subject of the appeal were placed on the market or the appellant ordinarily resides.

(16) Where an appeal is made under paragraph (4), the measuring instruments the subject of the appeal shall not be destroyed or disposed of until at least the day following the determination or discontinuation of the final appeal.

(17) In this Regulation “appropriate court” means—

(a) in any case where the estimated value of the measuring instruments the subject of the appeal does not exceed €15,000, or such other amount as may stand specified for the time being by law as that Court’s jurisdiction in tort, the District Court,

(b) in any case where the estimated value of the measuring instruments referred to in subparagraph (a) exceeds the jurisdiction of the District Court in tort but does not exceed €75,000, or such other amount as may stand specified for the time being by law as that Court’s jurisdiction in tort, the Circuit Court,

and

(c) in any case not coming within subparagraph (a) or (b), the High Court.

(18) In this Regulation “dispose” includes any manner of disposal which in the opinion of the authorised officer will least endanger the public and includes surrender of the measuring instruments to a member of the Garda Síochána or to any other competent agency or organisation for its destruction, or the certified return of the measuring instruments to the economic operator relating to the measuring instruments, in order to remove them from the market, at the expense of the economic operator, manager, or person having lawful possession of the measuring instruments at the time of seizure, where known.

(19) The Director shall give the recipient of a seizure notice an opportunity to make representations as soon as possible after the service of the notice on that person and the service of the notice shall be reviewed promptly thereafter.

Forfeiture order

34J. (1) Without prejudice to any power or powers under any other provision of these Regulations, the Director may apply for an order for the forfeiture to the Director of any measuring instrument on the grounds that the measuring instrument does not comply with the Directive or these Regulations or, when properly maintained and used for its intended purpose or otherwise used under conditions which can be reasonably foreseen, is liable to be a risk to the health or safety of persons.

(2) An application under paragraph (1) shall be made to the appropriate court and the proceedings shall be served on the person against whom a forfeiture order is sought without delay.

(3) Upon hearing an application under paragraph (1), the appropriate court may, if it considers it appropriate to do so, grant a forfeiture order.

(4) The appropriate court may order that the person against whom a forfeiture order is granted pay the costs of seizure and destruction or disposal of the measuring instrument the subject of the order.

(5) A forfeiture order granted under paragraph (3) 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) If, during the hearing of an application under paragraph (1) to the District Court, that court forms the opinion that the value of the measuring instruments the subject of the appeal exceeds that court’s jurisdiction in tort, it may, if it so thinks fit, transfer the appeal to the Circuit Court or the High Court, whichever it considers appropriate having regard to its opinion of the value of the measuring instruments.

(7) If, during the hearing of an application under paragraph (1) to the Circuit Court, that court forms the opinion that the value of the measuring instruments the subject of the appeal, exceeds that court’s jurisdiction in tort, it may, if it so thinks fit, transfer the appeal to the High Court.

(8) Paragraphs (6) and (7) are without prejudice to the jurisdiction of a court (being either the District Court or the Circuit Court) to determine an application under paragraph (1) in relation to which it was, at the time of the hearing of the application, the appropriate court.

(9) Where a decision is made under paragraph (3), any person aggrieved may, within 21 days beginning on the day the decision was made, appeal the decision to the following court:

(a) where the decision under paragraph (3) was made by the District Court, the Circuit Court;

(b) where the decision under paragraph (3) was made by the Circuit Court, the High Court;

(c) where the decision under paragraph (3) was made by the High Court, the Court of Appeal.

(10) On hearing an appeal under paragraph (9), the court may, if it considers it appropriate to do so, confirm the decision of the appropriate court, vary it or allow the appeal.

(11) A decision under paragraph (10) of the Circuit Court shall be final, save that, by leave of the High Court, an appeal from the decision shall lie to the High Court on a specified question of law.

(12) A decision under paragraph (10) of the High Court shall be final, save that, by leave of the Court of Appeal, an appeal from the decision shall lie to the Court of Appeal on a specified question of law.

(13) An application under paragraph (1) to the District Court shall be determined by a judge of the District Court for the District Court district in which the measuring instrument the subject of the order sought was placed on the market or the person against whom the order is sought ordinarily resides.

(14) An application under paragraph (1) to the Circuit Court and any appeal under paragraph (9) to the Circuit Court shall be determined in the circuit in which the measuring instrument the subject of the application under paragraph (1) was placed on the market or the person against whom the order was sought in an application under paragraph (1) ordinarily resides.

(15) Where a forfeiture order is granted and there is no stay on the coming into force of the order, the measuring instrument the subject of the forfeiture order may be seized on behalf of the Director by an authorised officer and destroyed, disposed of or released as the authorised officer considers appropriate.

(16) In this Regulation—

(a) “appropriate court” has the meaning assigned to it under Regulation 34I(17); and

(b) “dispose” has the meaning assigned to it under Regulation 34I(18).

Information notice

34K. (1) The Director, or an authorised officer, may serve an information notice on a person which may require the person to give to the Director or the authorised officer, within such period and in such form as may be specified in the notice, any information specified in the notice that the Director or the authorised officer may reasonably require for the proper performance of any functions under Regulation (EU) 2019/1020 or these Regulations.

(2) An information notice shall—

(a) state the exact grounds on which the requirement for information is based and shall inform the person on whom the information notice is served that he or she may appeal the notice to the District Court within 7 days in accordance with this Regulation,

(b) state that if the person on whom the information notice is served fails to comply with the notice, that person commits an offence, and

(c) be signed and dated by the authorised officer.

(3) The period specified in the information notice referred to in paragraph (1) may be extended at the discretion of the Director or authorised officer on the written application of the person on whom the notice is served or at the volition of the Director or authorised officer issuing the notice.

(4) A person on whom an information notice is served may, within 7 days beginning on the day on which the notice is served on him or her, appeal against the notice to a judge of the District Court in the District Court district in which the notice was served and in determining the appeal the judge may, if he or she considers it appropriate to do so, confirm, vary or cancel the notice.

(5) A person who appeals under paragraph (4) shall at the same time notify the Director of the appeal and the grounds for the appeal and the Director shall be entitled to appear, be heard and adduce evidence at the hearing of the appeal.

(6) Where a decision is made under paragraph (4), any person aggrieved by that decision may, within 7 days beginning on the day on which the decision was made, appeal it to the Circuit Court in the circuit in which the information notice was served and in determining the appeal, the court may, if it considers it appropriate to do so, confirm the decision of the District Court, vary it or allow the appeal.

(7) A decision under paragraph (6) shall be final, save that, by leave of the High Court, an appeal from the decision shall lie to the High Court on a specified question of law.

(8) Where, upon the hearing of an appeal under this Regulation (whether under paragraph (4), (6) or (7)), an information notice is not cancelled by the court, the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the information notice for such period as in the circumstances of the case the judge considers appropriate.

(9) Subject to paragraph (10), a person on whom an information notice is served shall comply with the notice before the later of—

(a) the expiration of the period to comply specified in the information notice, or

(b) where the period referred to in subparagraph (a) is extended under paragraph (3), the expiration of that extended period.

(10) Where an appeal is brought under this Regulation, the person on whom the information notice is served shall comply with the notice before—

(a) the day next following the day on which the information notice is confirmed or varied on final appeal,

(b) the day next following the day on which the appeal is discontinued,

(c) the expiration of the period to comply specified in the information notice,

or

(d) where the operation of the information notice has been suspended, the expiration of the period of final suspension,

whichever occurs latest.

(11) Subject to paragraph (12), in the case of a measuring instrument which the authorised officer does not consider to present a serious risk requiring rapid intervention under Article 19 of Regulation (EU) 2019/1020, the intended recipient of an information notice shall have the opportunity to make representations to the Director within 10 working days of first being advised of the authorised officer’s intention to serve an information notice on that person.

(12) Where an opportunity to make representations referred to in paragraph (11) is not possible because of the urgency of requirement to obtain the information, as justified by grounds relating to public interests, the Director shall give the recipient of the information notice the opportunity to be heard as soon as possible after the service of the notice on that person and the service of the notice shall be reviewed promptly thereafter.

Publication of information

34L. (1) The Director may, in the interest of the protection of health or safety and in consultation, where appropriate, with a market surveillance authority of another Member State, take such measures as it considers appropriate to bring to the attention of the public matters giving rise to any contravention notice served under Regulation 34B, prohibition notice served under Regulation 34F, seizure notice served under Regulation 34I or forfeiture order granted under Regulation 34J.

(2) The Director may, in the interest of the protection of health or safety, take such measures as it considers appropriate to bring to the attention of the public any other matter of concern arising from the requirements of the Directive, Regulation (EU) 2019/1020 or these Regulations.”, and

(b) by deleting Regulations 35 and 36.

8. Paragraph (1) of Regulation 37 of the 2018 Regulations is amended—

(a) by the substitution of “Regulation 30, 32, 33, 34B, 34F, 34I 34K or 36” for “Regulation 30, 32, 33 and 36”,

(b) by the insertion after subparagraph (c) of the following:

“(d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to him or her in that manner”, and

(c) by the insertion after subparagraph (d) of the following:

“(e) if all of the methods set out at subparagraphs (a) to (d) are either not possible in the circumstances or have proved insufficient to effect service of the notice or document on the relevant person, by electronic means only.”

9. The 2018 Regulations are amended—

(a) by substituting for Regulation 39 the following:

“Offences

39. (1) A person who contravenes a provision or requirement of this Regulation or Regulation 4, 5, 6, 6A, 7, 8, 10(5),11, 12, 14(1), 14(2), 21, 30 (2), (7), (10), (11), 32(5), 33(2), 34(9), 34B, 34F, 34J, 34K, 35(9), 36(9), 40, 46, 53 or 59 commits an offence.

(2) A person who, in relation to CE marking, other marking or any document required for the purposes of the Directive, Regulation (EU) 2019/1020 or these Regulations does one or more of the following commits an offence:

(a) forges or counterfeits any such document;

(b) gives or signs a document knowing it to be false in any material particular or makes a marking knowing it to be false in any material particular;

(c) knowingly uses a marking or document that is forged or counterfeited, or that is false in any material particular;

(d) knowingly uses as applying to any person or to any measuring instrument a marking or document which does not so apply;

(e) knowingly connives at any such forging, counterfeiting, giving, signing, or using referred to in subparagraphs (a) to (d);

(f) knowingly makes a false entry in any such document that is so required to be kept, served or sent;

(g) knowingly uses any false entry referred to in subparagraph (f);

(h) knowingly makes available, places on the market or puts into use any measuring instrument with such forged or counterfeit mark, or any mark liable to be confused with the marks authorised under these Regulations,

(i) fails to comply with Regulation 19; or

(j) knowingly and without lawful authority has in his or her possession one or more of the following:

(i) a forged marking;

(ii) a forged document;

(iii) an altered marking;

(iv) an altered document.

(3) A person who—

(2) fails to comply with a contravention notice served under Regulation 34B within the period specified in the notice,

(3) fails to comply with a prohibition notice served under Regulation 34F within the period specified in the notice,

(4) fails to comply with any term of a forfeiture order granted under Regulation 34J that requires his or her compliance, or

(5) fails to comply with an information notice served under Regulation 34K within the period specified in the notice, commits an offence.

(4) Any person who obstructs or interferes with an authorised officer or a member of the Garda Síochána in the course of exercising a power conferred on him or her by these Regulations or by a warrant under Regulation 34A(6) or who impedes or prevents the exercise by the authorised officer or member, as the case may be, of such power, or fails or refuses to comply with a request or requirement of, or to answer a question asked by, an authorised officer or such a member pursuant to a power conferred by these Regulations, or in purported compliance with such request or requirement or answer to such question asked, gives information to the authorised officer or member that he or she knows to be false or misleading in any material respect, commits an offence.

(5) A person who, at any time during the period of 3 months immediately following the affixing of a notice in accordance with Regulation 37(1)(e) removes, alters, damages or defaces the notice without lawful authority commits an offence.

(6) A person who states to the Director that another person has committed an offence under this Regulation or has failed to comply with a provision of these Regulations, knowing the statement to be false, commits an offence.

(7) A person who, in purported compliance with a requirement under these Regulations, furnishes information to the Director that he or she knows or ought reasonably to know to be false or misleading in a material respect commits an offence.

(8) A person who prevents or attempts to prevent any person from answering any question to which an authorised officer may require an answer under Regulation 34K commits an offence.

(9) A person who fails to comply with a bona fide request, instruction or direction from an authorised officer in the exercise of his or her functions under these Regulations, commits an offence.

(10) A person who knowingly alters a measuring instrument, device, part or component of a measuring instrument so as to affect its accuracy, commits an offence.

(11) A person who knowingly makes available on the market, places on the market or puts into use any measuring instrument so altered commits an offence.

(12) Without prejudice to paragraph (3) a person who alters, adjusts or repairs a measuring instrument so as to bring it into conformity with the Regulations does not commit an offence.

(13) Where an offence under a provision of these Regulations is committed by reason of a failure to do something at or within a time fixed by or under that provision, the offence shall be deemed to continue until that thing is done.”, and

(b) by inserting after Regulation 39 the following:

“Prosecution of offences

39A. (1) An offence under these Regulations may be prosecuted summarily by the Director.

(2) If a 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 prosecutor the costs and expenses, measured by the court, reasonably incurred by the prosecutor in relation to the investigation, detection and prosecution of the offence, including costs incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of employees, consultants and advisers.

Offences by bodies corporate

39B. (1) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, commits an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first- mentioned offence.

(3) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

Penalties

39C. A person convicted of an offence under these Regulations is liable—

(a) on summary conviction to a class B fine, or imprisonment for a term not exceeding 12 months, or to both, or

(b) on conviction on indictment to a fine not exceeding €500,000 or imprisonment for a term not exceeding 2 years or both.

Forfeiture upon conviction

39D. (1) Where a person is convicted of an offence under these Regulations, the court may order the forfeiture to the Director of any measuring instrument to which the offence relates.

(2) Where an order is made under paragraph (1), the Director may for the purpose of giving effect to it—

(a) seize and detain the measuring instrument where it has not already been seized under these Regulations, and

(b) destroy or dispose of the measuring instrument.”

(c) by revoking Regulation 40, 41 and 42.

GIVEN under my Official Seal,

15 November, 2023.

SIMON COVENEY, TD,

Minister for Enterprise, Trade and Employment.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These regulations give full effect in Irish law to Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and give further effect in Irish law, as necessary, to Directive 2014/32/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of measuring instruments (recast) by amending the Legal Metrology (European Conformity Assessment of Measuring Instruments) Regulations 2018 ( S.I. No. 2 of 2018 )

Regulation (EU) 2019/1020 confers on national market surveillance authorities strengthened powers to carry out effective market surveillance to ensure that relevant products are compliant with certain EU harmonisation legislation, including Directive 2014/32/EU, with a view to ensuring the free movement of compliant products within the EU.

1 OJ No. L 169, 25.6.2019, p. 1

2 OJ No. L 96, 29.3.2014, p. 149

3 OJ No. L 1, 3.1.1994, p. 3