The Marketing of Bananas (Scotland) Regulations 2012

PART 1 Introduction

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Marketing of Bananas (Scotland) Regulations 2012 and come into force on 1st February 2013.

(2) These Regulations extend to Scotland only.

Interpretation

2.—(1) In these Regulations—

“authorised officer” means any person (whether or not an officer of the Scottish Ministers) appointed by the Scottish Ministers in accordance with regulation 3(3);

“bananas” means bananas, intended for supply fresh to the consumer after preparation and packaging, which fall within—

(a)

CN code 0803 00 19(1) as provided for in Part XI of Annex 1 to Council Regulation 1234/2007; and

(b)

the description in Article 1 of, and Point I of Annex I to, Commission Regulation 1333/2011;

“Commission Regulation 1333/2011” means Commission Implementing Regulation (EU) No 1333/2011 laying down marketing standards for bananas, rules on the verification of compliance with those marketing standards and requirements for notifications in the banana sector(2), as amended from time to time;

“container” includes any basket, pail, tray, package or receptacle of any kind, whether open or closed;

“controlled”, in relation to bananas, means that the power conferred by regulation 12(1) (stop notice) has been exercised in relation to those bananas and that consent to their movement has been given under regulation 14(1) when the circumstances in regulation 14(2) or (3) apply;

“Council Regulation 1234/2007” means Council Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation)(3), as amended from time to time;

“EU marketing rules” means any of the minimum requirements, classification, sizing, presentation and marking standards provided for in Article 1 and Annex I of Commission Regulation 1333/2011, subject to the tolerances in Point IV of that Annex;

“inspection body” means a body of a member State responsible for carrying out conformity checks in accordance with Articles 3 and 8 of Commission Regulation 1333/2011;

“label” includes any device for conveying information particulars by written characters or other symbols, and any characters or symbols stamped or otherwise placed directly on to any bananas or container, and references to the affixing of a label are construed accordingly;

“non compliance label” means a label indicating that the bananas are not compliant with EU marketing rules;

“premises” includes any place, vehicle or trailer, stall, vessel, container, moveable structure, aircraft, or hovercraft; and

“stop notice label” means a label fixed in accordance with regulation 13(1).

(2) Unless otherwise provided in this regulation, terms used in these Regulations have the same meaning as they have in Commission Regulation 1333/2011 and Council Regulation 1234/2007.

(3) A reference to anything done “in writing” or produced “in written form” includes a reference to an electronic communication, as defined in section 15 (general interpretation) of the Electronic Communications Act 2000(4), which has been recorded in written form and is capable of being reproduced in that form.

Designations, provision of information and appointment of authorised officers

3.—(1) The Scottish Ministers are designated as the competent national authority and inspection body for Scotland for the purposes of Commission Regulation 1333/2011 and Article 113(3) of Council Regulation 1234/2007 in relation to bananas.

(2) For the purposes of fulfilling the obligations on competent national authorities and inspection bodies contained in the EU marketing rules and for the enforcement of these Regulations, the Scottish Ministers may, as appropriate or where required to do so, provide information to and request information from—

(a) the competent national authorities and inspection bodies in other member States and in Northern Ireland, England and Wales; or

(b) the European Commission.

(3) The Scottish Ministers may appoint authorised officers for the purposes of the enforcement of these Regulations.

PART 2 General offences and exercise of powers on premises

EU marketing rules: offences

4.—(1) A person is guilty of an offence if the person displays or offers for sale, delivers or markets in any other manner, bananas in contravention of the EU marketing rules.

(2) A person is guilty of an offence if the person fails to comply with any provision of Commission Regulation 1333/2011 mentioned in column 1 of Schedule 1 to these Regulations, as read with any provision mentioned in any corresponding entry in column 2 of that Schedule.

(3) Where—

(a) an authorised officer has inspected bananas and found them not to be compliant with the EU marketing rules; and

(b) the person in charge of those bananas has given an undertaking, or has been responsible for the giving of an undertaking, in relation to those bananas,

it is an offence for that person to act in breach of the undertaking or to cause or permit the person’s agent or employee to act in breach of that undertaking.

(4) A person is guilty of an offence if, in purporting to provide the information particulars required by the EU marketing rules, the person gives an inaccurate or false description of those bananas on a label affixed to, or in a notice or document accompanying, those bananas.

(5) A person, other than an authorised officer, is guilty of an offence if the person affixes, or causes or permits to be affixed, a non compliance label to any container of bananas, or to the bananas themselves or to any notice or document with the information particulars required by the EU marketing rules to accompany those bananas.

(6) A person, other than an authorised officer, is guilty of an offence if the person removes, conceals, defaces or alters, or causes or permits to be removed, concealed, defaced or altered—

(a) any notice or document with the information particulars required by the EU marketing rules to accompany bananas or any label which is required by those rules to be affixed to those bananas or to their container;

(b) a non compliance label which has been affixed by an authorised officer in the execution of these Regulations to the bananas or to their container; or

(c) any demarcation tape or other material used by an authorised officer in accordance with regulation 7(1)(f) to identify bananas or a specific lot of bananas which are found not to be compliant with the EU marketing rules.

(7) A person is guilty of an offence if the person exports or imports any consignment of bananas to or from any place outside the European Union without a document, label or notice which is required by the EU marketing rules to accompany those bananas.

Exercise of powers on premises

5.  The powers under Part 3 and Part 4 of these Regulations may not be exercised on premises used wholly as a dwelling house.

PART 3 Powers of authorised officers

Powers of entry

6.—(1) An authorised officer may enter any premises at any reasonable hour for the purposes of the enforcement of these Regulations.

(2) An authorised officer must, if requested to do so, produce a duly authenticated authorisation document.

(3) An authorised officer may be accompanied by any other persons and any equipment as the authorised officer considers necessary.

(4) If a sheriff, a stipendiary magistrate or a justice of the peace, on information in writing sworn on oath, is satisfied that there are reasonable grounds for entry into any premises for the purposes of enforcing these Regulations, and—

(a) admission to an authorised officer has been refused, or a refusal of admission is expected, and (in either case) that notice of the intention to apply for a warrant has been given to the occupier; or

(b) an application for admission to the premises, or the giving of such a notice, would defeat the object of the entry; or

(c) the premises are unoccupied or the occupier is temporarily absent; or

(d) the case is one of urgency,

the sheriff, stipendiary magistrate or justice of the peace may by a signed warrant authorise the authorised officer to enter the premises, if need be by reasonable force.

(5) A warrant granted under paragraph (4) is valid for a period of one month.

(6) An authorised officer who enters, by virtue of this regulation, any premises which are unoccupied or the occupier of which is temporarily absent, must leave them as effectively secured against unauthorised entry as they were before entry.

(7) It is an offence for a person who has obtained confidential information in the course of acting for the purposes of the enforcement of these Regulations to disclose that information, whether it was obtained on premises entered under or by virtue of these Regulations or otherwise, unless the disclosure is made in the performance of that person’s duty.

Other powers

7.—(1) An authorised officer who has lawfully entered premises for the purpose of the enforcement of these Regulations, may for that purpose—

(a) require any person to provide such assistance, information or facilities as the authorised officer may reasonably require;

(b) make any enquiries, observe any activity or process, and take photographs;

(c) inspect and search the premises;

(d) inspect any machinery or equipment or any other article on the premises;

(e) inspect and take samples of any bananas found on the premises;

(f) identify, with demarcation tape or other material, bananas or a specific lot of bananas which are found not to be compliant with the EU marketing rules;

(g) inspect, seize and detain any container used in connection with bananas;

(h) have access to, inspect and copy any label, notice, document or record (in whatever form they are held) and remove them to enable them to be copied or require copies to be made;

(i) detach, or give permission to be detached, any non compliance label or stop notice label when the reasons for their being affixed no longer apply;

(j) have access to, inspect and check the data on, and operation of, any computer and any associated apparatus or material that is or has been in use in connection with a label, notice, document or record mentioned in this regulation, including data relating to deleted files and activity logs; and for this purpose may require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford such assistance (including the provision of passwords) as may reasonably be required and, where these items are kept by means of a computer, may require them to be produced in a visible and legible form in which they may be taken away;

(k) seize any computers and associated equipment for the purpose of copying any data, but only if that authorised officer has a reasonable suspicion that an offence under these Regulations has been committed; and

(l) seize and detain any items in sub-paragraph (h) if the authorised officer has reason to believe that they may be required as evidence in any court or other proceedings under these Regulations.

(2) An authorised officer must—

(a) as soon as is reasonably practicable, provide to the person appearing to be responsible for any items that the authorised officer seizes and detains under paragraph (1) a written receipt identifying those items; and

(b) as soon as is reasonably practicable after deciding that those items are no longer required, return them, apart from those to be used as evidence in any court or other proceedings under these Regulations.

Power to affix labels

8.  Where an authorised officer, who has lawfully entered premises for the purpose of the enforcement of these Regulations, takes a bulk sample of bananas from a specific lot and finds those bananas not to be compliant with the EU marketing rules, the power to affix—

(a) a non compliance label under regulation 9 or 10; or

(b) a stop notice label under regulation 13;

may be exercised in relation to all or any of the bananas or containers of bananas within that lot in the same way as in relation to the bulk sample taken.

Power to affix a non compliance label

9.—(1) Where an authorised officer, who has lawfully entered premises for the purpose of the enforcement of these Regulations, finds any bananas which—

(a) have affixed to them a label or are accompanied by a notice or a document required by the EU marketing rules; or

(b) are in a container to which such a label is affixed or which is accompanied by such a notice or document,

indicating in either case that one of the situations in paragraph (2) or (3) applies, the authorised officer may amend or cancel the label, notice or document and may affix to the bananas, or, as the case may be, to the notice or container, a non compliance label.

(2) Situation 1 is where the label, notice or document indicates—

(a) that the bananas are of a particular class under EU marketing rules; but

(b) the authorised officer has reasonable cause to believe that the bananas are of an inferior class under those rules.

(3) Situation 2 is where the label, notice or document indicates—

(a) that the bananas are of a particular class under EU marketing rules; but

(b) the authorised officer has reasonable cause to believe that the bananas do not comply with any class under those rules.

(4) For the purposes of this regulation and regulation 10, a non compliance label must be—

(a) in the form set out in Part I of Schedule 2; and

(b) completed in accordance with Part II of that Schedule.

10.  Where an authorised officer, who has lawfully entered premises for the purpose of the enforcement of these Regulations, finds any bananas, or container holding bananas, which—

(a) do not have a label required by the EU marketing rules affixed to them;

(b) are not accompanied by a notice or document required by the EU marketing rules;

(c) have a label required by the EU marketing rules affixed to them, but the label appears to the authorised officer to be incorrect (other than in relation to a particular class under the EU marketing rules), or to have been altered or defaced; or

(d) are accompanied by a notice or document required by the EU marketing rules but which appears to the authorised officer to be incorrect (other than in relation to a particular class under the EU marketing rules), or to have been altered or defaced with the result that it is incorrect,

the authorised officer may, as appropriate, amend or cancel the label, notice or document and may affix to those bananas, or, as the case may be, to the container, a non compliance label.

Requirement to serve a notice in terms of regulation 9 or 10

11.—(1) If an authorised officer deems it appropriate to affix a non compliance label to any bananas or container holding bananas, the authorised officer must, at the same time serve a written notice on the owner of the bananas or an agent or employee or the owner, advising of the reasons for non compliance and clearly indicating—

(a) in the case where regulation 9 applies, which of the situations contained in paragraph (2) or (3) of that regulation is applicable; or

(b) in the case where regulation 10 applies, which of the circumstances contained in paragraphs (a) to (d) of that regulation is applicable.

(2) Any notice issued by an authorised officer in terms of this regulation must, in addition to the information required in terms of paragraph (1)(a) or (b) (as applicable), also contain the following information—

(a) the notice shall be named “Notice of non compliance with EU marketing rules”;

(b) a reference to the Marketing of Bananas (Scotland) Regulations 2012;

(c) a reference number to correspond with the compliance check, to be entered on the non compliance label affixed to the bananas, or as the case may be, to the container;

(d) the name and address of the trader, importer or exporter responsible for the bananas;

(e) the reasons for the non compliance with the EU marketing rules;

(f) a warning that it is an offence under these Regulations to display or offer for sale, deliver or market in any other manner bananas in contravention of the EU marketing rules;

(g) the origin of the bananas claimed;

(h) the class of bananas claimed/attained;

(i) the quantity of the consignment;

(j) the signature of the authorised officer;

(k) the date, time and place of the compliance check; and

(l) an official stamp bearing the number identifying the authorised officer.

PART 4 Controlled bananas and related powers and offences

Powers to control the movement of bananas

12.—(1) An authorised officer may, by written notice (a “stop notice”) served in accordance with paragraph (2), prohibit the movement of any bananas if the authorised officer reasonably suspects that an offence under these Regulations is being committed in respect of those bananas.

(2) The written notice referred to in paragraph (1) must be served on the person appearing to the authorised officer to be in charge of the bananas concerned and must—

(a) specify the date, place and time of service of the notice;

(b) contain details of the recipient of the notice;

(c) specify the bananas in relation to which the power has been exercised;

(d) state the reason for their detention;

(e) confirm that options for bringing the bananas into conformity with the EU marketing rules or for the appropriate disposal of those bananas have been discussed between the authorised officer and the person appearing to be in charge of the bananas;

(f) state the location of the bananas;

(g) state that the bananas may not be moved from that location without the written consent of an authorised officer; and

(h) contain the authorised officer’s official stamp and number.

(3) When serving the notice, the authorised officer must inform the person on whom the notice is served of the right of review under paragraph (4) and how it may be exercised.

(4) The person on whom the notice has been served, or the owner of the bananas or an agent or employee acting on behalf of the owner, may request the Scottish Ministers to arrange a review of the decision to serve the notice.

(5) The person requesting a review of a decision to serve a notice under paragraph (1) must do so in person, by telephone, in writing or by fax to the contact details indicated in the notice and a request in person or by telephone must be confirmed in writing as soon as reasonably practicable thereafter.

(6) The review is to be determined by a person (unconnected with the original decision) appointed by the Scottish Ministers (“the appointed person”) under arrangements maintained by them for the purposes of this regulation.

(7) The appointed person conducting the review may cancel the notice or confirm it, with or without modifications.

(8) The appointed person must—

(a) complete the review as soon as reasonably practicable and in any event within two working days of the request being made under paragraph (4); and

(b) serve notice of the decision in writing on the person who requested the review.

(9) The Scottish Ministers may suspend the notice pending determination of the review and must serve a notice forthwith of their decision to do so on the relevant person and the authorised officer.

(10) The appointed person’s determination is final.

Power to affix a stop notice label

13.—(1) An authorised officer may affix to any controlled bananas, or to any container in which the controlled bananas are packed, a label warning of the exercise of the power in regulation 12(1) (a “stop notice label”).

(2) A stop notice label must be—

(a) in the form set out in Part III of Schedule 2; and

(b) completed in accordance with Part IV of that Schedule.

Consents to the movement of controlled bananas

14.—(1) An authorised officer may, at any time, give written consent to the movement of controlled bananas and must give such consent upon request if the circumstances in paragraph (2) or (3) apply.

(2) The circumstances mentioned in this paragraph are where—

(a) the authorised officer is satisfied that no offence under these Regulations would be committed in respect of the bananas if they were marketed for supply fresh to the consumer after preparation and packaging; or

(b) the authorised officer, or another authorised officer, has been given a written undertaking that the bananas will be marketed or disposed of in a specified manner and the authorised officer is satisfied that if the bananas are marketed or disposed of in that manner no offence under these Regulations would be committed in respect of them and the authorised officer has no reason to doubt that the terms of the undertaking will not be met.

(3) The circumstances mentioned in this paragraph are where—

(a) the authorised officer, or another authorised officer, has been given a written undertaking to the effect that—

(i) the bananas will be moved to a place approved by an authorised officer;

(ii) steps required will be taken to ensure that the bananas may be marketed in compliance with the EU marketing rules and without an offence under these Regulations being committed in respect of them or will be disposed of in such a manner that no offence under these Regulations would be committed in respect of them; and

(iii) the bananas will not be moved from that place without the written consent of an authorised officer; and

(b) the authorised officer has no reason to doubt that the terms of the undertaking will not be met.

(4) A consent given by an authorised officer under this regulation must—

(a) specify the bananas to which it relates;

(b) include the terms of any undertaking given under paragraph (2) or (3); and

(c) where the consent is given under paragraph (3), state that the bananas continue to be controlled.

Offences relating to movement of controlled bananas

15.—(1) A person is guilty of an offence if the person moves controlled bananas or a container with controlled bananas in it, or causes or permits them to be moved—

(a) without the written consent; or

(b) other than in accordance with the written consent,

of an authorised officer given under regulation 14(1).

(2) A person, other than an authorised officer, is guilty of an offence if the person removes or causes or permits to be removed from controlled bananas or a container with controlled bananas in it, a stop notice label affixed by an authorised officer under regulation 13(1).

PART 5 Additional enforcement provisions

Obstruction

16.  A person is guilty of an offence if the person—

(a) obstructs an authorised officer acting for the purpose of the enforcement of these Regulations, or a person accompanying such an authorised officer under regulation 6(3);

(b) fails without reasonable excuse to give an authorised officer acting for the purpose of the enforcement of these Regulations any assistance or information or to provide any record or facilities that the authorised officer may reasonably require; or

(c) supplies to an authorised officer acting for the purpose of the enforcement of these Regulations, any information knowing it to be false or misleading.

Offence due to act or default of another person

17.—(1) Where the commission by a person (“ A”) of an offence under these Regulations is due to an act or default of another person (“B”), B is guilty of the offence.

(2) Proceedings may be taken against B whether or not proceedings are taken against A.

Defences

18.—(1) Except in respect of the offences in regulation 16, it is a defence for a person charged with an offence under these Regulations (“ C”) to prove that the person’s actions were carried out with lawful authority or that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence.

(2) Where C wishes to rely on the defence provided by paragraph (1), C must serve on the prosecutor a written notice of that fact in accordance with paragraph (4).

(3) Where the defence provided by paragraph (1) involves an allegation that the commission of the offence was due to the act or default of another person, C is not, without leave of the court, entitled to rely on that defence unless C has served on the prosecutor a written notice in accordance with paragraph (4) giving such information identifying or assisting in the identification of that person as was then in C’s possession.

(4) The notice must be served—

(a) where an intermediate diet is held, at or before that diet; or

(b) where such a diet is not to be held, no later than 10 clear days before the trial diet.

Offences by bodies corporate

19.—(1) Where—

(a) an offence under these Regulations has been committed by a body corporate or a Scottish partnership or other unincorporated association;

(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of—

(i) a relevant individual; or

(ii) an individual purporting to act in the capacity of a relevant individual,

the individual as well as the body corporate, Scottish partnership or unincorporated association commits an offence and is liable to be proceeded against and punished accordingly.

(2) In paragraph (1), “relevant individual” means—

(a) in relation to a body corporate—

(i) a director, manager, secretary or other similar officer of the body;

(ii) where the affairs of the body are managed by its members, a member;

(b) in relation to a Scottish partnership, a partner;

(c) in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

Penalties

20.  A person guilty of an offence under these Regulations is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

PART 6 Disapplication

Disapplication

21.  In so far as they apply to Scotland, the following Acts do not apply to bananas—

(a) the Agriculture and Horticulture Act 1964(5) and the Horticultural Produce Act 1986(6), which modifies it;

(b) the Agricultural Produce (Grading and Marking) Acts 1928(7) and 1931(8); and

(c) the Agricultural Marketing Act 1958(9).

PART 7 Revocation

Revocation

22.  The Bananas (Enforcement of Quality Standards) (Scotland) Regulations 2011(10) are revoked.

RICHARD LOCHHEAD

A member of the Scottish Government

St Andrew’s House,

Edinburgh

13th December 2012