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1. These Regulations may be cited as the Batteries and Accumulators (Placing on the Market) Regulations 2008 and shall come into force on 26th September 2008.
2. (1) In these Regulations—
“appliance” means any electrical or electronic equipment, as defined by Directive 2002/96/EC of the European Parliament and of the Council on waste electrical and electronic equipment(1), which is fully or partly powered by batteries or accumulators or is capable of being so;
“battery” or “accumulator” means any source of electrical energy generated by direct conversion of chemical energy and consisting of one or more primary battery cells (non-rechargeable) or consisting of one or more secondary battery cells (rechargeable);
“battery pack” means any set of batteries or accumulators that are connected together or encapsulated within an outer casing so as to form a complete unit that the end-user is not intended to split up or open;
“button cell” means any small round portable battery or accumulator whose diameter is greater than its height and which is used for special purposes such as hearing aids, watches, small portable equipment and back-up power;
“compliance notice” has the meaning given in regulation 13(2);
“crossed out wheeled bin symbol” has the meaning given in regulation 5(1);
“enforcement notice” has the meaning given in regulation 14(2);
“enforcement officer” means an officer of the Secretary of State or an officer of a person appointed to act on behalf of the Secretary of State for the purposes of enforcing these Regulations;
“European Economic Area” means the area comprised by the EEA states;
“infringing goods” means batteries or accumulators or appliances the characteristics, contents or labelling of which are not such as are permitted or required by Part 2 and which were placed on the market on or after 26th September 2008; and
“placing on the market” means supplying or making available, whether in return for payment or free of charge, to a third party within the European Economic Area(2) and includes import into the customs territory of the Community as defined in Article 3 of Regulation 450/2008/EC of the European Parliament and of the Council laying down the Community Customs Code(3), and “place on the market” and “placed on the market” shall be construed accordingly.
(2) In these Regulations, except in paragraph (1), any reference to a battery shall be construed as being a reference to a battery or an accumulator.
3. (1) These Regulations apply to—
(a)all types of batteries, regardless of their shape, volume, weight, material composition or use; and
(b)all appliances into which a battery is or may be incorporated.
(2) These Regulations do not apply to batteries used in—
(a)equipment connected with the protection of the essential security interests of EEA states, such as arms, munitions and war material, and intended for specifically military purposes; or
(b)equipment designed to be sent into space.
4. (1) No person shall place on the market—
(a)a battery that contains more than 0.0005% of mercury by weight;
(b)a portable battery that contains more than 0.002% of cadmium by weight.
(2) The prohibition in paragraph (1)(a) shall not apply to a button cell with a mercury content of no more than 2% by weight.
(3) The prohibition in paragraph (1)(b) shall not apply to a portable battery intended for use in—
(a)emergency and alarm systems, including emergency lighting;
(b)medical equipment; or
(c)a cordless power tool.
(4) This regulation does not apply to a battery which is a component of a vehicle for the purposes of regulation 6 of the End-of-Life Vehicles Regulations 2003(4).
(5) In this regulation—
“portable battery” means any battery or battery pack which is—
can be hand-carried by an average natural person without difficulty, and
is neither an automotive battery nor an industrial battery;
“automotive battery” means any battery used for automotive starter, lighting or ignition power;
“industrial battery” means any battery or battery pack which is—
designed exclusively for industrial or professional uses,
used as a source of power for propulsion in an electric vehicle,
unsealed but is not an automotive battery, or
sealed but is not a portable battery;
“electric vehicle” means a vehicle which uses electricity as a source of power for propulsion and includes a vehicle which in addition uses, or is capable of using, other sources of power for this purpose; and
“cordless power tool” means a hand-held appliance powered by a battery and intended for maintenance, construction or gardening activities.
5. (1) No person shall place on the market any battery or battery pack unless it is marked with the symbol shown in Schedule 1 (the “crossed out wheeled bin symbol”).
(2) Subject to paragraph (3), the crossed out wheeled bin symbol shall cover at least 3% of the area of the largest side of the battery or battery pack and shall have a maximum size of 5 x 5 centimetres.
(3) In the case of cylindrical cells, the crossed out wheeled bin symbol shall cover at least 1.5% of the surface area of the battery and shall have a maximum size of 5 x 5 centimetres.
(4) Where the size of the battery or battery pack is such that the crossed out wheeled bin symbol would be smaller than 0.5 x 0.5 centimetres, the battery or battery pack need not be marked but a crossed out wheeled bin symbol measuring at least 1 x 1 centimetre shall be printed on the packaging.
(5) The crossed out wheeled bin symbol shall be printed visibly, legibly and indelibly.
6. (1) No person shall place on the market—
(a)a button cell containing more than 0.0005% of mercury by weight unless it is marked with the chemical symbol “Hg”;
(b)a battery containing more than 0.002% of cadmium by weight unless it is marked with the chemical symbol “Cd”;
(c)a battery containing more than 0.004% of lead by weight unless it is marked with the chemical symbol “Pb”.
(2) Each of the chemical symbols mentioned in paragraph (1) shall—
(a)be printed beneath the crossed out wheeled bin symbol;
(b)cover an area of at least one quarter the size of that symbol; and
(c)be printed visibly, legibly and indelibly.
7. (1) No person shall place on the market an appliance into which a battery is or may be incorporated unless that appliance is—
(a)designed in such a way that a waste battery can be readily removed from that appliance; and
(b)accompanied by instructions showing how the battery can be removed safely and, where appropriate, informing the end-user of the type of the incorporated battery.
(2) Paragraph (1) shall not apply where for safety, performance, medical or data integrity reasons continuity of power supply is necessary and requires a permanent connection between the appliance and the battery.
8. (1) It shall be the duty of the Secretary of State to enforce these Regulations.
(2) The Secretary of State may appoint a person to act on behalf of the Secretary of State for the purposes of paragraph (1).
(3) The Secretary of State shall not commence proceedings for an offence in Scotland.
9. (1) The Secretary of State may purchase batteries or appliances for the purpose of ascertaining whether or not they are infringing goods.
(a)a battery or an appliance purchased under this regulation is submitted to a test;
(b)the test leads to the bringing of proceedings for an offence under regulation 15(1); and
(i)from whom the battery or the appliance was purchased;
(ii)who is a party to the proceedings; or
(iii)who has an interest in the battery or the appliance which is identified as infringing goods in an enforcement notice,
requests the Secretary of State to allow that person to have the battery or the appliance tested,
the Secretary of State shall, if it is practicable for such a test to be carried out, allow that person to have the battery or the appliance tested.
10. (1) If the Secretary of State reasonably believes that a person possesses information or documents which may provide evidence as to whether or not batteries or appliances are infringing goods, the Secretary of State may give that person notice in writing, requiring that person to provide the Secretary of State with that information, those documents, or copies of them.
(2) A notice given under paragraph (1) shall state the period of time within which the person to whom it is given must comply with it: this shall be a period which is reasonable in all the circumstances, and shall not in any event be less than fourteen days.
11. (1) The powers specified in paragraphs (3) and (4) may be exercised where the Secretary of State reasonably believes that their exercise will enable the Secretary of State to obtain evidence as to whether or not batteries or appliances are infringing goods.
(2) Before exercising any of the powers specified in paragraph (3) or (4), enforcement officers shall, if so requested, produce a copy of their authorisations to act as enforcement officers.
(3) Enforcement officers may—
(a)enter at any reasonable time any premises other than premises occupied only as a person’s residence;
(b)examine and investigate—
(i)any process of assembly or manufacture; or
(ii)any other aspect of the supply,
of a battery or an appliance, or the component parts of any such battery or appliance, taking place on, or organised from, such premises;
(c)take such measurements and photographs and make such recordings as are necessary for the purpose of any examination or investigation under sub-paragraph (b)(i); and
(d)require any person on such premises to afford them such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable them to exercise any of the powers conferred on them by sub-paragraphs (b) and (c) with due regard to the health and safety of themselves and others.
(4) When enforcement officers have exercised the power of entry under paragraph (3)(a), or when, with a view to ascertaining whether or not batteries or appliances are infringing goods, they have agreed to meet, at a specified time and place, a person in whose possession they reasonably believe there is evidence of the kind referred to in paragraph (1), they may—
(a)take samples of any articles or substances found on or in the vicinity of the premises they have entered or which are in that person’s possession;
(b)require any person on the premises or at the meeting to produce, or, where the information is recorded in computerised form, furnish extracts in legible form from, any records to which that person has access—
(i)which it is necessary for the enforcement officers to see for the purposes of an examination or investigation under paragraph (3)(b); or
(ii)which take the form of existing documents which the Secretary of State could require to be produced under regulation 10,
and inspect and take copies of, or of any entry in, the records; and
(c)take possession of articles or substances of the kind referred to in sub-paragraph (a) or records of the kind referred to in sub-paragraph (b), and detain them for so long as is necessary to—
(i)examine them, or cause them to be examined;
(ii)ensure that they are not tampered with before examination of them is completed; and
(iii)ensure that they are available for use in evidence in any proceedings for an offence under regulation 15(1) or (3).
(5) Where enforcement officers exercise a power conferred by paragraph (4)(a) or (b), instead of immediately—
(a)taking the samples of articles or substances; or
(b)requiring the production of the records,
they may require them (or, in the case of records, copies of them) to be produced at such time and place and by such means as they may reasonably specify.
12. (1) When enforcement officers enter premises by virtue of regulation 11(3)(a), they may take with them such other persons and such equipment or materials as they reasonably consider it necessary or expedient to have with them—
(a)for the purpose of establishing whether or not batteries or appliances are infringing goods; and
(b)to assist them in exercising any of their powers under regulation 11(3)(b) and (c).
(2) Enforcement officers who enter any premises by virtue of regulation 11(3)(a) may direct that those premises, or any part of them, or anything in them, shall be left undisturbed for so long, and to such extent, as is reasonably necessary for the purpose of the exercise of any of their powers under regulation 11(3)(b) and (c).
(3) Where enforcement officers leave any premises that they have entered by virtue of regulation 11(3)(a) and such premises are unoccupied or their occupier is temporarily absent, they shall leave them as effectively secured against a trespasser as they found them.
13. (1) The Secretary of State may serve a notice on any person who—
(a)places on the market; or
(b)supplies or makes available in the United Kingdom in the course of business,
batteries or appliances which the Secretary of State has reasonable grounds to suspect are infringing goods.
(2) A notice served under paragraph (1) (a “compliance notice”) shall—
(a)identify the alleged infringing goods (the “specified goods”);
(b)state why the Secretary of State suspects that the specified goods are infringing goods;
(c)specify what action the Secretary of State considers the person on whom the notice is served needs to take, or to refrain from taking, in order—
(i)to cause the specified goods to cease to be infringing goods, or
(ii)where it is not possible for them to cease to be infringing goods, to withdraw them from the market or to cease to supply or to make them available in the United Kingdom; and
(d)state that, if that person does not take, or refrain from taking, such action within such period as the notice specifies, and the Secretary of State considers that the specified goods continue to be infringing goods, the Secretary of State may—
(i)take further action under regulation 14; or
(ii)in the case of an alleged contravention of a requirement of Part 2, commence proceedings under regulation 15(1)(a), (b) or (c).
(3) No proceedings shall be commenced against a person under regulation 15(1)(a), (b) or (c) in respect of an alleged contravention of a requirement of Part 2 where—
(a)a compliance notice has been served on that person in respect of the alleged contravention; and
(b)the period specified under paragraph (2)(d) in that notice has not come to an end.
14. (1) Where the Secretary of State serves a compliance notice on a person and, at the end of the period specified in the notice under regulation 13(2)(d)—
(a)it appears to the Secretary of State that that person has failed to take, or to refrain from taking, the action specified in the compliance notice under regulation 13(2)(c); and
(b)the Secretary of State has reasonable grounds for considering that the specified goods are infringing goods,
the Secretary of State may serve a further notice on that person.
(2) A notice served under paragraph (1) (an “enforcement notice”) shall—
(a)identify the specified goods;
(b)state why the conditions in paragraph (1) are satisfied in relation to the specified goods;
(c)specify the period ending not less than twenty-one days from the date of the notice, within which the person on whom the notice is served is required to take, or to refrain from taking, such action as is specified in the notice;
(d)state that, if that person does not take, or refrain from taking, such action within the period specified in the notice, and the Secretary of State considers that the specified goods continue to be infringing goods, the Secretary of State may commence proceedings under regulation 15(1); and
(e)state the judicial remedies available to that person and the time limits to which those remedies are subject.
(3) An enforcement notice may—
(a)require the specified goods to be modified so as to cease to be infringing goods;
(b)require the specified goods to be withdrawn from the market;
(c)prohibit or restrict the specified goods from being supplied or made available in the United Kingdom in the course of business; or
(d)prohibit or restrict the placing on the market of the specified goods.
(4) No proceedings shall be commenced against a person under regulation 15(1) in connection with any specified goods which it is alleged are infringing goods where—
(a)an enforcement notice relating them has been served on that person in respect of those specified goods; and
(b)the period specified under paragraph (2)(c) in that notice has not come to an end.
(5) In this regulation “specified goods” means the alleged infringing goods that have been identified in a compliance notice in accordance with regulation 13(2)(a).
15. (1) A person who contravenes or fails to comply with any of the requirements of—
(b)regulation 5 or 7,
(c)regulation 6, or
(d)an enforcement notice,
shall be guilty of an offence.
(2) A person who intentionally obstructs an enforcement officer who is acting pursuant to any provision of this Part shall be guilty of an offence.
(3) A person who is subject to a requirement imposed under regulation 10 or 11(3)(d), (4) or (5) to provide information, documents or records (or copies of information, documents or records) shall be guilty of an offence—
(a)if that person fails, without reasonable excuse, to comply with that requirement; or
(i)any information, document or record which that person provides in response to that requirement is false or misleading in a material respect; or
(ii)any statement which that person makes in response to that requirement is false or misleading in a material respect,
and that person either knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.
16. (1) A person who is guilty of an offence under regulation 15(1)(a) or (d) shall be liable—
(a)on summary conviction, to a fine not exceeding the statutory maximum;
(b)on conviction on indictment, to a fine.
(2) A person who is guilty of an offence under regulation 15(1)(b) or (c), (2) or (3) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
17. (1) Where a person is convicted of an offence under regulation 15(1) in respect of any matters which appear to the court to be matters which it is in that person’s power to remedy, the court may, in addition to or instead of imposing any punishment, order that person, within such time as may be fixed by the order, to take such steps as may be specified in the order for remedying those matters.
(2) The time fixed by an order under paragraph (1) may be extended or further extended by order of the court on an application made before the end of the time as originally fixed or as extended under this paragraph, as the case may be.
(3) Where a person is ordered under paragraph (1) to remedy any matters, that person shall not be guilty of an offence under regulation 15(1) in respect of those matters in so far as they continue during the time fixed by the order or any further time allowed under paragraph (2).
18. (1) This regulation applies where a court convicts a person of an offence under regulation 15(1)(a), (c) or (d).
(2) The court may (in addition to any other order it may make as to costs or expenses) order the person convicted to reimburse the Secretary of State for any expenditure which the Secretary of State has incurred in investigating the offence, including in having the battery or appliance in respect of which the offence was committed tested.
19. In England and Wales a magistrates’ court may try an information, and in Northern Ireland a magistrates’ court may try a complaint, in relation to an offence under these Regulations if the information is laid or if the complaint is made within twelve months from the time when the offence is committed. In Scotland summary proceedings for such an offence may be begun at any time within twelve months from the time when the offence is committed.
20. (1) Subject to the following provisions of this regulation, in proceedings for an offence under regulation 15(1)(a), (c) or (d), a person who is shown to have taken all reasonable steps and exercised all due diligence to avoid committing the offence shall have a defence.
(2) Where, in any proceedings against a person for such an offence, the defence provided by paragraph (1) involves an allegation that the commission of the offence was due to—
(a)the act or default of another; or
(b)reliance on information given by another,
such a defence shall not, without leave of the court, be relied on unless, not later than seven clear days before the hearing of the proceedings (or, in Scotland, the trial diet), that person has served a notice in accordance with paragraph (3) on the person bringing the proceedings.
(3) A notice under this regulation shall give such information identifying or assisting in the identification of the person who committed the act or default or gave the information as is in the possession of the person serving the notice at the time it is served.
(4) A person shall not be entitled to rely on the defence provided by paragraph (1) by reason of that person’s reliance on information supplied by another, unless it is shown that it was reasonable in all the circumstances for that person to have relied on the information, having regard in particular to—
(a)the steps which that person took and those which might reasonably have been taken, for the purpose of verifying the information; and
(b)whether that person had any reason to disbelieve the information.
21. (1) Where the commission by a person of an offence under these Regulations is due to anything which another person did or failed to do in the course of a business, that other person shall be guilty of the offence and may be proceeded against and punished, whether or not proceedings are taken against the first person.
(2) Where a body corporate commits an offence and it is proved that the offence was committed—
(a)with the consent or connivance of an officer of the body corporate; or
(b)as a result of the negligence of an officer of the body corporate,
the officer, as well as the body corporate, shall be guilty of the offence.
(3) In paragraph (2) a reference to an officer of a body corporate includes a reference to—
(a)a director, manager, company secretary or other similar officer of the body corporate;
(b)a person purporting to act as a director, manager, company secretary or other similar officer; and
(c)if the affairs of a body corporate are managed by its members, a member.
(4) In this regulation references to a “body corporate” include references to a partnership in Scotland, and in relation to such partnership, any reference to a director, manager, company secretary or other similar officer of a body corporate is a reference to a partner.
22. (1) Any document required or authorised by these Regulations to be served on a person may be so served—
(a)by delivering it to that person or by leaving it at that person’s proper address or by sending it by post to that person at that address; or
(b)if a person is a body corporate, by serving it in accordance with sub-paragraph (a) on the secretary, clerk or other similar officer of that body corporate; or
(c)if the person is a partnership, by serving it in accordance with sub-paragraph (a) on a partner or on a person having control or management of the partnership business.
(2) For the purposes of paragraph (1), and for the purposes of section 7 of the Interpretation Act 1978(6) (which relates to the service of documents by post) in its application to that paragraph, the proper address of any person on whom a document is to be served in accordance with these Regulations shall be that person’s last known address except that—
(a)in the case of service on a body corporate or its secretary, clerk or other similar officer, it shall be the address of the registered or principal office of the body corporate;
(b)in the case of service on a partnership or a partner or a person having the control or management of a partnership business, it shall be the principal office of the partnership;
and for the purposes of this paragraph, the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom is its principal office within the United Kingdom.
23. (1) Nothing in these Regulations shall be taken as—
(a)requiring a person to produce any document which that person would be entitled to refuse to produce in any proceedings in any court on the grounds that it is the subject of legal professional privilege or, in Scotland, that it contains a confidential communication made by or to an advocate or solicitor in that capacity; or
(b)authorising a person to take possession of any document which is in the possession of a person who would be so entitled.
(2) A statement by a person in response to a requirement imposed by virtue of regulation 10 may only be used in evidence against that person—
(a)on a prosecution for an offence under regulation 15(3)(b); or
(b)on a prosecution for some other offence where in giving evidence that person makes a statement inconsistent with it.
(3) But the statement may not be used against that person by virtue of paragraph (2)(b) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution.
24. Schedule 1 to the Enterprise Act 2002 (Part 9 Restrictions on Disclosure of Information) (Specification) Order 2004(7) is amended by the addition, at the end, of the following entry—
“The Batteries and Accumulators (Placing on the Market) Regulations 2008.”.
25. Schedule 2 (revocations) shall have effect.
Minister of State for Energy,
Department for Business, Enterprise and Regulatory Reform
8th August 2008
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