The Quality Schemes (Agricultural Products and Foodstuffs) Regulations 2018

PART 4 Enforcement powers and related provisions

Powers of entry

10.—(1) An authorised officer may on giving reasonable notice enter any premises except premises used wholly or mainly as a private dwelling-house at any reasonable hour for the purposes of enforcing these Regulations or the EU Regulations.

(2) The requirement to give notice does not apply—

(a) where reasonable efforts to agree an appointment have failed;

(b) where an authorised officer reasonably believes that giving notice would defeat the object of the entry;

(c) where an authorised officer has a reasonable suspicion of a breach of these Regulations or the EU Regulations.

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

(4) A justice of the peace in England and Wales, a sheriff or justice of the peace in Scotland or lay magistrate in Northern Ireland, may by signed warrant permit an authorised officer to enter any premises, including dwelling-houses, if necessary by reasonable force, if the justice, sheriff or lay magistrate, on sworn information in writing is satisfied—

(a) that there are reasonable grounds to enter those premises for the purpose of enforcing these Regulations or the EU Regulations, and

(b) that one or more of the conditions in paragraph (5) are met.

(5) The conditions are—

(a) entry to the premises has been, or is likely to be, refused, and notice of the intention to apply for a warrant has been given to the occupier;

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

(c) entry is required urgently;

(d) the premises are unoccupied or the occupier is temporarily absent.

(6) A warrant is valid for 30 days from the date of signature.

(7) An authorised officer entering any premises which are unoccupied or from which the occupier is temporarily absent must leave them as effectively secured against unauthorised entry as they were before entry.

(8) An authorised officer may—

(a) be accompanied by—

(i) such other persons as the authorised officer considers necessary;

(ii) any representative of the European Commission;

(b) bring on to the premises such equipment as the authorised officer considers necessary.

Powers of authorised officers on entry

11.—(1) An authorised officer who has entered premises under regulation 10 may—

(a) inspect and search the premises;

(b) take photographs;

(c) mark any item for identification purposes;

(d) require the production of any label, document or record (in whatever form it is held);

(e) inspect and take a copy of, or take a copy of an extract from, any label, document or record;

(f) inspect and open any container, item or vending machine;

(g) inspect any plant, machinery or equipment;

(h) have access to, inspect and check the data on, and operation of, any computer and any associated apparatus used in connection with a label, document or record to which this regulation relates;

(i) where a label, document or record is kept by means of a computer, require the label, document or record to be produced in a form in which it may be taken away;

(j) seize and detain any computer equipment for the purpose of copying any data or for further inspection where adequate inspection has not been able to be carried out on the premises, if the authorised officer has reason to believe that a person is in contravention of these Regulations or the EU Regulations and that the data may be relevant to the contravention;

(k) seize and detain potential evidentiary material, that is to say, any label, document, record, equipment, container or item if the authorised officer has reason to believe that a person is in contravention of these Regulations or the EU Regulations and that the potential evidentiary material may be relevant to the contravention.

(2) An authorised officer may require any person to provide the authorised officer with such assistance, information or facilities as the officer may reasonably require for the purposes of the execution or enforcement of these Regulations or the EU Regulations.

(3) If it is decided that anything seized and detained under paragraph (1) by an authorised officer is no longer needed by an enforcement authority in connection with a possible contravention of these Regulations or the EU Regulations, the authorised officer must return it as soon as reasonably practicable after that decision.

Compliance notice

12.—(1) An authorised officer may serve a notice in writing on any person if the authorised officer has grounds for believing that the person—

(a) has marketed, or is marketing or intending to market, a product under a registered PDO or PGI which has not been labelled in a way described in Article 12;

(b) has made, or is making or intending to make, any direct or indirect commercial use of a registered PDO or PGI in a way described in Article 13(1)(a);

(c) has misused, imitated or evoked, or is misusing, imitating or evoking or intending to misuse, imitate or evoke, a registered PDO or PGI in a way described in Article 13(1)(b);

(d) has used, or is using or intending to use, any other false or misleading indication as to the provenance, origin, nature or essential qualities of a product in a way described in Article 13(1)(c);

(e) has used, or is using or intending to use, any other practice that is liable to mislead the consumer as to the true origin of a product in a way described in Article 13(1)(d);

(f) has misused, imitated or evoked, or is misusing, imitating or evoking or intending to misuse, imitate or evoke, a registered TSG in a way liable to mislead the consumer as described in Article 24(1) or has carried out, or is carrying out or intending to carry out any other practice liable to mislead the consumer in a way described there;

(g) has used, or is using or intending to use, a sales description that causes confusion with a registered TSG in a way described in Article 24(2);

(h) has marketed, or is marketing or intending to market, a product described with an optional quality term in contravention of Article 33(1);

(i) has used, or is using or intending to use, an indication, abbreviation or symbol in contravention of Article 44(1), as read with Regulation 665/2014;

(j) has marketed, or is marketing or intending to market, a product under a registered PDO, PGI or TSG which has not been labelled in a way described in Article 13(1) or (3) of Regulation 668/2014, as read with Article 2 of Regulation 664/2014.

(2) A notice served under paragraph (1) must contain the following—

(a) the name and address of the enforcement authority by which the authorised officer is authorised;

(b) the name and address of the person on whom the notice is served;

(c) the grounds for service of the notice;

(d) information on the steps the person must take to comply with the notice;

(e) except to the extent that the steps are confined to refraining from doing something believed to be intended, the period within which each step must be completed in order to comply with the notice, which must not expire before the period within which an appeal may be brought under regulation 15, 16 or, as the case may be, 17;

(f) information as to—

(i) the rights of appeal;

(ii) the scope for suspension of a notice pending appeal;

(iii) the consequences of an appeal;

(iv) the consequences of a failure to comply with the notice.

(3) Subject to regulations 15 to 17, the person on whom the notice is served must comply with the notice.

(4) A notice served under this regulation is referred to in these Regulations as a compliance notice.

Non-compliance penalty notice

13.—(1) Where a person—

(a) fails to comply with a compliance notice,

(b) has obstructed an authorised officer acting pursuant to regulations 10 or 11, or

(c) has failed to comply with a requirement of an authorised officer acting pursuant to regulation 11(1)(d), 11(1)(i) or 11(2),

an enforcement authority may, by way of serving a written notice on the person, impose a requirement to pay to that enforcement authority such sum as the authority may specify in respect of that act or omission.

(2) The enforcement authority may determine—

(a) the amount payable, which must not exceed £40,000, and

(b) whether any discount is offered in relation to early payment and, if so—

(i) the amount of any discount, and

(ii) the time within which the penalty must be paid to take advantage of the discount.

(3) A notice served under paragraph (1) must contain the following—

(a) the name and address of the enforcement authority to which the penalty must be paid;

(b) the name and address of the person on whom the notice is served;

(c) the grounds for serving the notice;

(d) the amount of the penalty;

(e) the period within which the penalty must be paid, which must not expire before the period within which an appeal may be brought under regulation 15, 16 or, as the case may be, 17;

(f) whether any discount is offered for early payment, and if so—

(i) the amount of the discount;

(ii) the period within which the penalty must be paid to take advantage of the discount;

(g) information as to—

(i) the rights of appeal;

(ii) the scope for suspension of a notice pending appeal;

(iii) the consequences of an appeal;

(iv) the consequences of failing to comply with the notice.

(4) Subject to regulations 15 to 17, the person on whom the notice is served must comply with the notice.

(5) If the requirements of the compliance notice are met before the payment period set out in the non-compliance penalty notice expires, liability to pay the non-compliance penalty is discharged.

(6) A notice served under this regulation is referred to in these Regulations as a non-compliance penalty notice.

Enforcement costs recovery notice

14.—(1) An enforcement authority may, by way of serving a written notice on a person on whom a non-compliance penalty notice has been served, require the person to pay to the authority a sum equal to or less than the costs incurred by the authority in relation to the issuing of a non-compliance penalty notice up to the time of its issue.

(2) An enforcement authority must provide a detailed breakdown of the costs specified in the notice if requested to do so by the person on whom such a notice is served.

(3) A request for a detailed breakdown of the costs specified in the notice must be made within 14 days of the date of the notice.

(4) A notice served under paragraph (1) must contain the following—

(a) the name and address of the enforcement authority to which the sum must be paid;

(b) the name and address of the person on whom the notice is served;

(c) the period within which the sum must be paid, which must not expire before—

(i) the period within which an appeal may be brought under regulation 15, 16 or, as the case may be, 17;

(ii) the enforcement authority has provided a breakdown of the costs, unless—

(aa) the person in question has indicated to the enforcement authority that they do not require the detailed breakdown in question;

(bb) the period referred to in paragraph (3) has expired;

(d) information as to—

(i) the rights of appeal;

(ii) the scope for suspension of a notice pending appeal;

(iii) the consequences of an appeal;

(iv) the consequences of failure to comply with the notice.

(5) Subject to regulations 15 to 17, the person on whom a notice is served must comply with the notice.

(6) A notice served under this regulation is referred to in these Regulations as an enforcement costs recovery notice.

(7) In this regulation, “costs” means reasonably and necessarily incurred—

(a) investigation costs;

(b) administration costs;

(c) costs of obtaining expert advice (including legal advice).

Appeals against enforcement notices served in England and Wales

15.—(1) In England and Wales, a person on whom an enforcement notice has been served may appeal to the First-tier Tribunal.

(2) The effect of a compliance notice served under these Regulations is not suspended pending the determination or withdrawal of an appeal unless the First-tier Tribunal directs otherwise.

(3) An appeal against a non-compliance penalty notice or an enforcement costs recovery notice served under these Regulations suspends the effect of the notice appealed against until the appeal is determined or withdrawn.

(4) On an appeal under this paragraph, the First-tier Tribunal may either cancel or affirm the enforcement notice and, if the First-tier Tribunal affirms the notice, may do so either in its original form or with such modifications as the First-tier Tribunal thinks fit.

Appeals against enforcement notices served in Scotland

16.—(1) In Scotland, a person on whom an enforcement notice has been served may appeal to the sheriff.

(2) An appeal must be brought within the period of 28 days beginning with the date on which the enforcement notice is served.

(3) The effect of a compliance notice served under this Regulations is not suspended pending the determination or withdrawal of an appeal unless the sheriff directs otherwise.

(4) An appeal against a non-compliance penalty notice or an enforcement costs recovery notice served under these Regulations suspends the effect of the notice appealed against until the appeal is determined or withdrawn.

(5) On an appeal under this paragraph, the sheriff may either cancel or affirm the enforcement notice, with or without modification.

Appeals against enforcement notices served in Northern Ireland

17.—(1) In Northern Ireland, a person on whom an enforcement notice has been served may appeal to the Magistrates’ Court.

(2) An appeal must be brought within the period of 28 days beginning with the date on which the enforcement notice is served.

(3) The effect of a compliance notice served under these Regulations is not suspended pending the determination or withdrawal an appeal unless the Magistrates’ Court directs otherwise.

(4) An appeal against a non-compliance penalty notice or an enforcement costs recovery notice served under these Regulations suspends the effect of the notice appealed against until the appeal is determined or withdrawn.

(5) On an appeal under this paragraph, the Magistrates’ Court may either cancel or affirm the enforcement notice, with or without modification.

Grounds of appeal

18.—(1) The grounds for an appeal against a compliance notice are that the enforcement authority’s decision to serve the compliance notice was—

(a) based on an error of fact;

(b) wrong in law;

(c) unreasonable.

(2) The grounds for an appeal against a non-compliance penalty notice or an enforcement costs recovery notice are that—

(a) the enforcement authority’s decision to serve the non-compliance penalty notice or the enforcement costs recovery notice was—

(i) based on an error of fact;

(ii) wrong in law;

(iii) unreasonable;

(b) the amount specified in the non-compliance penalty notice or the enforcement costs recovery notice is unreasonable.

Withdrawal and variation of an enforcement notice

19.—(1) An authorised officer may serve a notice on a person—

(a) withdrawing,

(b) varying, or

(c) suspending,

an enforcement notice served under these Regulations.

(2) A notice served under paragraph (1)(b) cannot add to the obligations imposed by the enforcement notice that it varies.

Power to recover payments

20.  An enforcement authority may recover any unpaid sum required under regulation 13 or regulation 14, as read with regulations 15 to 17—

(a) as a civil debt;

(b) on the order of the court, on such terms as the court may order.