The Producer Responsibility Obligations (Packaging Waste) Regulations (Northern Ireland) 1999

PART IGENERAL

Citation and commencement

1.  These Regulations may be cited as the Producer Responsibility Obligations (Packaging Waste) Regulations (Northern Ireland) 1999 and shall come into operation on 1st June 1999.

Interpretation and notices

2.—(1) In these Regulations—

“the Department” means the Department of the Environment;

“the Director” means the Director General of Fair Trading;

“energy recovery” means the use of combustible packaging waste as a means to generate energy through direct incineration with or without other waste but with recovery of the heat;

“the Order” means the Producer Responsibility Obligations (Northern Ireland) Order 1998;

“organic recycling” means the aerobic (composting) or anaerobic (biomethanization) treatment, under controlled conditions and using micro-organisms, of the biodegradable parts of packaging waste, which produces stabilized organic residues or methane; for the purposes of these regulations landfill shall not be considered a form of organic recycling;

“packaging” means all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer, including non-returnable items used for the same purposes but only where the products are—

“packaging materials” means materials used in the manufacture of packaging and includes raw materials and processed materials prior to their conversion into packaging;

“packaging waste” means any packaging or packaging material covered by the definition of waste in Article 1 of Directive 75/442/EEC(1) (“the Waste Directive”) which, together with Annex 1 to that Directive, is reproduced in Part I of Schedule 3, other than production residues and, by virtue of Article 2(1)(b)(i) of the Waste Directive, radioactive waste;

“preceding year” has the meaning given in regulation 3;

“producer” has the meaning given in regulation 3 and the classes of producer are those set out in column 4 of the Table in Schedule 1;

“producer responsibility obligations” are the producer registration, recovery and recycling, and certifying obligations specified in regulation 3;

“recovery” means any of the applicable operations provided for in Annex IIB to the Waste Directive, reproduced in Part II of Schedule 3;

“recycling” means the reprocessing in a production process of the waste materials for the original purpose or for other purposes including organic recycling but excluding energy recovery;

“relevant year” has the meaning given in regulation 3;

“reprocessor” means a person who, in the ordinary course of conduct of a trade, occupation or profession, carries out the activities of recovery or recycling;

“reuse” means any operation by which packaging, which has been conceived and designed to accomplish within its life cycle a minimum number of trips or rotations, is refilled or used for the same purpose for which it was conceived, with or without the support of auxiliary products present on the market enabling the packaging to be refilled; such reused packaging will become packaging waste when no longer subject to reuse;

“scheme” means a scheme which is (or, if it were to be registered in accordance with these regulations would be) a scheme whose members for the time being are, by virtue of these regulations and their membership of that scheme, exempt from the requirement to comply with their producer responsibility obligations and “registered scheme” means a scheme which is registered with the Department in accordance with these Regulations;

“special waste” means any waste covered by the definition of special waste in regulation 2 of the Special Waste Regulations (Northern Ireland) 1998(2);

“transit packaging” means—

“year” means a calender year.

(2) Where notices are to be served on a producer under regulations 6(6), 10 and 11(3), information is to be provided or returns furnished by a producer under regulations 7 and 8, fees are to be paid by a producer under regulations 6(4)(d) and 8(b), and records and returns are to be maintained and furnished by a producer under regulation 22, they shall be served on, provided, paid, or maintained and furnished, in the case of a partnership, by the partner notified under regulation 6(4)(e), or in accordance with the undertaking referred to in regulation 7(a)(ii) and references in these regulations to the producer shall be read accordingly.

(3) Where the operator of a scheme is a partnership, or where this is not the case but there is more than one operator of a scheme—

(a)notices to be served on the operator of the scheme under regulations 12(6), 16, 17(3), 31(5) and (10), shall be served on the partner or operator, respectively, notified under regulation 12(3)(h), or in accordance with the condition referred to in regulation 13(d)(ii); and

(b)where information is to be provided by the operator of the scheme under regulations 13 and 14, fees are to be paid by the operator of the scheme under regulation 15(3), records and returns are to be maintained and furnished by the operator of the scheme under regulation 24, and appeals may be made by the operator of the scheme under regulation 18, they shall be provided, paid, or maintained and furnished, and such appeals may only be made, by the partner or operator, respectively, notified under regulation 12(3)(h), or in accordance with the condition referred to in regulation 13(d)(ii),

and references in these regulations to the operator of the scheme shall be read accordingly.

PART IIPRODUCERS AND OBLIGATIONS

Producers and producer responsibility obligations

3.—(1) This regulation is subject to regulations 4, 29 and 30.

(2) In respect of a year a person is a producer of a class specified in an entry in Column 4 of the Table set out in Schedule 1 if—

(a)in that year and the preceding year he performs the relevant functions of the class of producer specified in column 1 of that Table in relation to that entry;

(b)in the preceding year he made supplies of the materials or products specified in Column 2 of that Table in relation to that entry of a class in Column 3 of that Table in relation to that entry; and

(c)in relation to that year he satisfies the threshold tests as provided by paragraph 3 of that Schedule,

and the other provisions of that Schedule shall also have effect for the purposes of determining whether a person is a producer of any class.

(3) Where in respect of a year a person is a producer and satisfies the provisions of Columns 1 to 3 of the Table in Schedule 1 in relation to more than one class of producer specified in an entry in Column 4 of that Table, whether or not in relation to the same materials or products specified in Column 2 of that Table, or the same transaction or process, for that year that person belongs to each such class.

(4) For the purposes of these regulations—

(a)“relevant year” is the year referred to in paragraph (2), that is to say a year in respect of which a person is a producer; and

(b)“preceding year” is the year immediately preceding a relevant year.

(5) A person who is a producer in respect of a year has producer responsibility obligations in respect of that year, that is to say he shall—

(a)be registered as provided in regulation 5 (in these regulations referred to as the “producer registration obligation”); and

(b)for the year 2000 and subsequent years—

(i)take reasonable steps to recover and recycle packaging waste (in these regulations referred to as the “recovery and recycling obligations”) in relation to each of the classes of producer to which the producer belongs, calculated as provided in Schedule 2, and

(ii)furnish a certificate of compliance in respect of his recovery and recycling obligations in accordance with regulation 23 (in these regulations referred to as the “certifying obligation”).

(6) The recovery and recycling obligations of producers are to enable the United Kingdom to attain the recovery and recycling targets for Member States set out in Article 6(1) of Directive 94/62/EC and those targets are set out in Schedule 11.

Exclusions and limitations

4.—(1) Where a producer is a member of a registered scheme throughout a relevant year—

(a)the producer is exempt from complying with his producer responsibility obligations for the relevant year; and

(b)the recovery and recycling obligations with which, but for his membership of the scheme, the producer would have had to comply in relation to the relevant year shall be performed through the scheme.

(2) These regulations do not apply to a charity within the meaning given in section 506 of the Income and Corporation Taxes Act 1988(3).

(3) The producer responsibility obligations of the producer class of wholesaler apply only in respect of the year 2000 and subsequent years.

(4) A special producer as defined in Part III of Schedule 3 shall have producer responsibility obligations as provided in Part IV of that Schedule and shall maintain records and furnish returns to the Department in accordance with Part V of that Schedule.

PART IIIREGISTRATION

Producer registration obligation

5.  Subject to regulations 4(3) and (4), 29 and 30, a producer shall be registered with the Department in respect of a relevant year, or any part of that year, during which he is not a member of a registered scheme.

Application for producer registration

6.—(1) Subject to paragraph (3), a producer who is required by regulation 5 to be registered and who is not registered shall, on or before 1st April in a relevant year, make an application for producer registration to the Department.

(2) Where the producer is a partnership, the application shall be made by one partner acting on behalf of the partnership.

(3) Where—

(a)the relevant year is the year 1999, the application for registration shall be made on or before 30th September 1999; or

(b)any of the following occurs in a relevant year—

(i)the application for registration of a scheme of which the applicant was a member is refused,

(ii)the registration of a scheme of which the applicant was a member is cancelled,

(iii)the applicant’s membership of a scheme is discontinued,

(iv)the applicant becomes a producer in respect of that year, or

(v)applications made in accordance with paragraph (1) or sub-paragraph (a) are refused,

an application for registration shall be made within 28 days of the occurrence.

(4) An application for producer registration shall—

(a)be made in writing;

(b)contain the initial information set out in Part I of Schedule 4;

(c)subject to paragraphs (7) and (8), be accompanied by the further information specified in, and provided on a form corresponding to, the form set out in Part II of Schedule 4;

(d)be accompanied by the fee referred to in regulation 9; and

(e)where the applicant is a partnership, be accompanied by a statement as to which partner is able to accept notices and act on behalf of the partnership as provided in regulation 2(2).

(5) An application for producer registration shall be granted where—

(a)the producer has complied with paragraph (4)(a), (b), (d) and (e) and, where applicable, paragraph (8);

(b)the Department is satisfied that the information provided in accordance with paragraph (4)(c), or (8), has been provided in accordance with paragraph (7); and

(c)the producer has given the undertakings referred to in regulation 7, which have been required by the Department,

and shall otherwise be refused.

(6) Where an application for producer registration is granted—

(a)the Department shall, within 28 days of it being granted, serve notice on the producer in writing that he is registered with it; and

(b)the producer shall be treated as having been registered from the beginning of the relevant year or, where the producer has applied to be registered for part of a year, from the date specified in the notice, until any cancellation of the producer’s registration in accordance with regulation 11.

(7) The further information shall—

(a)where the application for registration, or compliance with regulation 8, is in respect of the year 1999, be provided using the producer’s reasonable estimates of the information required; and

(b)where the application for registration, or compliance with regulation 8, is in respect of the year 2000 or any subsequent year, the information provided shall be as accurate as reasonably possible.

(8) Where the application to register is made in one of the circumstances set out in paragraph (3)(b), the further information referred to in paragraph (4)(c) need not accompany the application but shall be provided within 56 days of the application being made.

Requirements for producer registration

7.  As requirements for producer registration the Department may require the applicant to undertake to—

(a)inform the Department of—

(i)any change in the circumstances of the producer which relate to the registration of the producer, and where the producer is a partnership, any change of partners,

(ii)any change in the person who is the partner who is able to accept notices and act on behalf of the partnership as stated as required in regulation 6(4)(e),

(iii)any material change in the initial information provided in accordance with regulation 6(4)(b), or

(iv)any material change in the further information provided in accordance with regulation 6(4)(c), or (8), as the case may be, or regulation 8,

within 28 days of the occurrence of any such change;

(b)comply with the requirements of regulation 8;

(c)maintain records and furnish returns to the Department as required by regulation 22; and

(d)apply to the Department to cancel his registration where he has become a member of a registered scheme or has ceased to be a producer in respect of a year.

Continuation of producer registration

8.  On or before 1st April in a relevant year a producer who is registered shall provide to the Department—

(a)in accordance with regulations 6(7), the further information referred to in regulation 6(4)(c); and

(b)the fee referred to in regulation 9.

Forms and fees for producer registration

9.—(1) The Department shall provide a copy of any form referred to in regulation 6 free of charge to any person requesting one.

(2) The fee which is to be charged by the Department on an application for producer registration or continuation of producer registration is £750.

Refusal to register producers

10.  Notice of any decision of the Department under regulation 6(5) to refuse to register a producer shall be served within 28 days of the decision on the producer, in writing, together with the reasons for the decision and a statement as to the offence specified in regulation 34(1)(a).

Cancellation of registration of producers

11.—(1) The Department may cancel the registration with it of a producer where—

(a)the information or the fee required by regulation 8 are not provided;

(b)it appears to the Department that—

(i)the producer is in breach of any of the undertakings referred to in regulation 7 and given by him to the Department,

(ii)the producer knowingly supplied false information in connection with his application for registration, or with compliance with any undertaking referred to in regulation 7, or with regulation 8, or

(iii)information provided pursuant to regulation 8 was not provided in accordance with regulation 6(7).

(2) The Department shall cancel the registration with it of a producer where it is notified that the producer has become a member of a registered scheme or has otherwise ceased to be subject to the producer registration obligation in respect of a year.

(3) Before cancellation of a registration under paragraphs (1) or (2), the Department shall serve on the producer concerned written notice of—

(a)its decision to cancel;

(b)the reasons for the decision; and

(c)the date when cancellation will take effect, not being earlier than—

(i)in the case of cancellation under paragraph (1), 28 days from the date of the notice; and

(ii)in the case of cancellation under paragraph (2), five days from the date of the notice.

Application for registration of a scheme

12.—(1) Subject to paragraph (8), an application for registration of a scheme in relation to a year shall be made by the operator of the scheme, on or before 1st April in the year, to the Department.

(2) Where the operator of the scheme is a partnership the application for registration shall be made by any one partner acting on behalf of the partnership.

(3) An application for registration of a scheme shall—

(a)be made in writing;

(b)contain the initial information set out in Part III of Schedule 4;

(c)subject to paragraph (7), be accompanied by the further information specified in, and provided on a form corresponding to, the form set out in Part II of Schedule 4, for each class of producer, and aggregating the information in relation to all of the scheme’s members who belong to that class;

(d)be accompanied by a published statement as provided in Part IV of Schedule 4;

(e)be accompanied by an operational plan for the scheme as provided in Part IV of Schedule 4;

(f)be accompanied by an undertaking by the operator of the scheme that the conditions referred to in regulation 13 will be complied with;

(g)be accompanied by a fee calculated as provided in regulation 15; and

(h)where the operator of the scheme is a partnership, or where there is more than one operator of the scheme, be accompanied by a statement as to which partner or operator, respectively, is able to accept notices or act on behalf of all the partners, or all the operators of the scheme, as the case may be, as provided in regulation 2(3).

(4) A scheme shall not be registered unless it has been notified under regulation 31(5) that it meets the requirements of competition scrutiny referred to in regulation 31, and the operator of the scheme shall supply evidence of that notification to the Department.

(5) An application for registration shall be granted where—

(a)the operator has complied with paragraphs (3)(a), (b), (d), (f), (g) and (h) and (4);

(b)the Department is satisfied that the information provided in accordance with paragraph (3)(c), has been provided in accordance with paragraph (7); and

(c)the Department is satisfied as to the contents of the operational plan provided as required by paragraph (3),

and shall otherwise be refused.

(6) Where an application for registration of a scheme is granted—

(a)the Department shall, within 28 days of it being granted serve notice on the operator of the scheme in writing that the scheme is registered with it; and

(b)the scheme shall be treated as registered from the beginning of the year of application until any cancellation of the scheme’s registration in accordance with regulation 17, except that for the purposes of regulations 32 and 33 the scheme shall be treated as registered from the date of notice until any such cancellation.

(7) The further information shall—

(a)where the application for registration, or compliance with regulation 14, is in relation to the year 1999 be provided using the reasonable estimates of the operator of the scheme; and

(b)where the application for registration, or compliance with regulation 14, is in relation to the year 2000 or any subsequent year, be as accurate as reasonably possible.

(8) Where an application for registration is made in the year 1999 the application shall be made on or before 30th September 1999.

Conditions of registration of a scheme

13.  Registration of a scheme shall be subject to the following conditions—

(a)that the recovery and recycling obligations of all of its members referred to in regulation 4(1)(b) shall be performed through the scheme;

(b)that the operator of the scheme shall provide information at the request of the Department with regard to the obligations referred to in paragraph (a);

(c)that the operator of the scheme shall notify the Department in writing at intervals as required by the Department of any change in the membership of the scheme and that any such notification shall be accompanied by the additional fee calculated as provided in regulation 15(3);

(d)that the operator of the scheme shall inform the Department in writing of—

(i)any change in the person who is the operator of the scheme, and in the case where the operator of the scheme is a partnership, or where there is more than one operator of a scheme, any change of partners or operators,

(ii)any change in the person who is the partner or operator who is able to accept notices and act on behalf of the partners or operators as stated as provided in regulation 12(3)(h),

(iii)any material change in the initial information provided in accordance with regulation 12(3)(b), or

(iv)any material change in the further information provided in accordance with regulations 12(3)(c) or 14,

within 28 days of the occurrence of any such change;

(e)that the operator of the scheme shall comply with the requirements of regulation 14;

(f)that the operator of the scheme shall maintain records and furnish returns to the Department as required by regulation 24; and

(g)that the operator of the scheme shall inform the Department in writing if the Secretary of State notifies the operator under regulation 31(10) that he has ceased to be satisfied that the scheme meets the requirements of competition scrutiny.

Continuation of registration of a scheme

14.  On or before 1st April in a relevant year and in respect of a scheme which is registered, the operator of the scheme shall provide to the Department—

(a)in accordance with regulation 12(7), the further information referred to in regulation 12(3)(c); and

(b)a fee calculated as provided in regulation 15.

Forms and fees for registration of a scheme

15.—(1) The Department shall provide a copy of any form referred to in regulation 12 free of charge to any person requesting one.

(2) The fee which is to be charged by the Department on an application for registration of a scheme and under regulation 14, is calculated as follows—

(3) The fee which is to be paid by an operator of a scheme in compliance with the condition referred to in regulation 13(c) is calculated as follows—

Refusal to register a scheme

16.  Notice of any decision of the Department under regulation 12(5) to refuse to register a scheme shall be served, within 28 days of the decision, on the operator of the scheme in writing together with—

(a)the reasons for the decision;

(b)a statement as to the right of appeal under Part IV; and

(c)a statement as to the offence specified in regulation 34(1)(a).

Cancellation of registration of a scheme

17.—(1) Subject to the right of appeal under Part IV, the Department may cancel the registration with it of a scheme where—

(a)the information or the fee required by regulation 14 are not provided; or

(b)it appears to the Department that—

(i)any of the conditions referred to in regulation 13 has been broken,

(ii)the operator knowingly supplied false information in connection with the application for registration, or with compliance with the conditions referred to in regulation 13, or with regulation 14, or

(iii)information provided pursuant to regulation 14 was not provided in accordance with regulation 12(7).

(2) The Department shall cancel the registration with it of a scheme if the Secretary of State gives notice under regulation 31(10) that he has ceased to be satisfied that the scheme meets the requirements of competition scrutiny.

(3) Before the cancellation of a registration, the Department shall serve on the operator of the scheme written notice of—

(a)its decision under paragraph (1) or (2) to cancel the registration;

(b)the reasons for the decision;

(c)where the decision is made under paragraph (1), the right of appeal under Part IV; and

(d)the date when cancellation will take effect, not being earlier than—

(i)in the case of cancellation under paragraph (1), the expiration of the time limit for an appeal against the notice provided for in paragraph 2 of Schedule 5, or

(ii)in the case of cancellation under paragraph (2), five days from the date of the notice.

PART IVREGISTRATION OF SCHEMES — APPEALS

Right of appeal

18.  The operator of a scheme may appeal to the Planning Appeals Commission against a decision of the Department—

(a)to refuse registration under regulation 12(5), except where the refusal arises from failure to comply with regulation 12(4); or

(b)to cancel registration under regulation 17(1).

Procedure of appeals

19.—(1) Where an appeal is made to the Planning Appeals Commission, if the operator of the scheme so requests, or the Planning Appeals Commission so decides, the appeal shall be or continue in the form of a hearing (which may, if the person hearing the appeal so decides, be held or held to any extent in private).

(2) Schedule 5 shall have effect with respect to the procedure on any such appeal.

Determination of appeals

20.  Where, on such an appeal, the Planning Appeals Commission determines that the decision of the Department shall be altered it shall be the duty of the Department to give effect to the determination.

Status pending appeal

21.  Where an appeal is pending in a case falling within regulation 17(1), the decision to cancel registration shall be ineffective until the appeal is disposed of; and if the appeal is dismissed or withdrawn the decision shall become effective from end of the day on which the appeal is dismissed or withdrawn.

PART VRECORDS, RETURNS AND CERTIFICATE

Producers — records and returns

22.—(1) A producer who is subject to the certifying obligation shall maintain for at least four years after the record is made, records of the information referred to in paragraph (2) and shall, at the same time as he furnishes a certificate of compliance to the Department in accordance with regulation 23, furnish a return to the Department of that information.

(2) The information is, in respect of the year 2000 and subsequent years—

(a)the amount in tonnes, to the nearest tonne, of packaging waste provided to a reprocessor by or on behalf of the producer;

(b)the amount in tonnes, to the nearest tonne, of each packaging material comprised in the packaging waste referred to in sub-paragraph (a), received by a reprocessor from the producer or a person acting on the producer’s behalf; and

(c)the dates on which, and the name and address of the reprocessor to which, the packaging waste referred to in sub-paragraph (a), was so provided.

(3) For the purposes of paragraph (2), for the year 2000 and subsequent years, packaging materials means the materials mentioned in paragraph 6(1)(b) of Schedule 2.

Producers — certifying obligation

23.—(1) Subject to regulations 4 and 29, a producer shall furnish in accordance with this regulation a certificate of compliance to the Department.

(2) A certificate of compliance shall be furnished as evidence of whether or not the producer has complied with its recovery and recycling obligations for a relevant year and shall be furnished on or before 31st January in the year immediately following the relevant year.

(3) The provisions of Schedule 6 shall apply as regards the information to be contained in a certificate of compliance.

Schemes — records and returns

24.—(1) The operator of a scheme shall maintain for at least four years after they are made, records of the information referred to in paragraphs (2) and (3), and make returns of the information referred to in paragraph (3) to the Department upon request.

(2) In respect of the year 1999 the information is, for each producer which is a member of the scheme in that year, the information referred to in regulations 12(3)(c) and 14, together with any changes notified in accordance with the condition referred to in regulation 13(d)(iv).

(3) In respect of the year 2000 and subsequent years the information is, in addition to the information referred to in paragraph (2)—

(a)the amount in tonnes, to the nearest tonne, of packaging waste provided to a reprocessor through the scheme;

(b)the amount in tonnes, to the nearest tonne, of each packaging material comprised in the packaging waste referred to in sub-paragraph (a), provided to a reprocessor through the scheme; and

(c)the dates on which, and the name and address of the reprocessor to which, the packaging waste referred to in sub-paragraph (a) was so provided.

(4) For the purposes of paragraph (3), for the year 2000 and subsequent years packing materials means the materials mentioned in paragraph 6(1)(b) of Schedule 2.

PART VIPOWERS AND DUTIES OF THE DEPARTMENT

Monitoring

25.—(1) The Department shall monitor in accordance with this regulation—

(a)compliance with their producer responsibility obligations by persons who are producers; and

(b)the discharge through schemes registered with it of the obligations of their members referred to in regulation 4(1)(b).

(2) The duty referred to in paragraph (1) includes a duty to monitor—

(a)the registration of producers as required by regulation 5;

(b)the accuracy of the initial information and the further information provided by producers and referred to in regulations 6 and 8, together with any changes notified in accordance with the undertakings referred to in regulation 7(a)(iii) and (iv);

(c)the accuracy of the returns furnished to the Department by a producer under regulation 22 or Part V of Schedule 3;

(d)the accuracy of the information contained in certificates of compliance furnished to the Department under regulation 23;

(e)the accuracy of the initial information and the further information provided by an operator of a scheme and referred to in regulations 12 and 14, together with any changes notified in accordance with the conditions referred to in regulation 13(d)(iii) and (iv); and

(f)the accuracy of the returns provided to the Department by an operator of a scheme under regulation 24.

Public register

26.—(1) The Department shall maintain and make available in accordance with this regulation a register relating to the producers and schemes registered with it in accordance with regulation 5 to 16 and containing—

(a)the information relating to producer registration prescribed in paragraph 1 of Schedule 7; and

(b)the information relating to registration of schemes prescribed in paragraph 2 of Schedule 7.

(2) The Department shall—

(a)secure that the register is open for inspection by members of the public free of charge at all reasonable hours; and

(b)permit members of the public to obtain copies of entries in the register on payment of reasonable charges.

(3) The register may be kept in any form but shall be indexed and arranged so that members of the public can readily trace information contained in it.

(4) The Department shall amend the relevant entry in the register to record any change to the information entered and shall note the date on which the amendment is made.

(5) Nothing in this regulation shall require a register maintained by the Department to contain information relating to, or to anything which is the subject-matter of, any criminal proceedings (including prospective proceedings) at any time before those proceedings are finally disposed of.

(6) Nothing in this regulation shall require a register maintained by the Department to contain any information which has been superseded by later information after four years have elapsed from that later information being entered in the register.

Approval of persons to issue certificates of compliance

27.  For the purposes of issuing certificates of compliance the Department may approve—

(a)where the producer is an individual, that individual;

(b)where the producer is a partnership, a partner; or

(c)where the producer is a company, a director of that company.

Entry and inspection

28.—(1) An officer of the Department who has been authorised in writing by the Department for the purpose of performing its function under these Regulations may exercise the powers of entry and inspection referred to in paragraph (2).

(2) The powers of entry and inspection are—

(a)to enter at any reasonable time any premises which he has reason to believe it is necessary for him to enter;

(b)to make such examination and investigation as may in any circumstances be necessary;

(c)as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (b);

(d)to take such photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (b);

(e)to take samples, or cause samples to be taken, of any records and packaging and packaging materials found in or on any premises which he has power to enter;

(f)in the case of any such records and packaging and packaging materials as are mentioned in paragraph (e), to take possession of them and detain them for so long as is necessary for all or any of the following purposes, namely—

(i)to examine them, or cause them to be examined, and to do, or cause to be done, to them anything which he has power to do under that paragraph,

(ii)to ensure that they are not tampered with before examination of them is completed,

(iii)to ensure that they are available for use as evidence in any proceedings for an offence under regulation 34;

(g)to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (b) to answer (in the absence of persons other than a person nominated by that person to be present and any persons whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask and to sign a declaration of the truth of his answers;

(h)to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any record and return—

(i)which are required to be kept and provided to the Department under regulations 22 and 24 and Part V of Schedule 3, or

(ii)which it is necessary for him to see for the purposes of an examination or investigation under paragraph (b), and to inspect and take copies of, or of any entry in, the records and returns; and

(i)to require any person to afford him 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 the authorised person to exercise any of the powers conferred on him by this regulation.

(3) In any case where it is proposed to enter any premises used for residential purposes, any entry shall only be effected—

(a)after the expiration of at least seven day’s notice of the proposed entry given to a person who appears to the Department’s servant or agent to be in occupation of the premises in question; and

(b)either—

(i)with the consent of a person who is in occupation of those premises, or

(ii)when a justice of the peace by warrant under his hand authorises the authorised person to enter the premises in question.

(4) Where it is shown to the satisfaction of a justice of the peace on complaint on oath that an authorised person proposes to enter any premises and—

(a)entry has been refused and he apprehends on reasonable grounds that the use of force may be necessary to effect entry; or

(b)he apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry;

an entry on to those premises shall only be effected under the authority of a warrant by virtue of Schedule 8.

(5) No answer given by a person in pursuance of a requirement imposed under paragraph (2)(g) shall be admissible in evidence in Northern Ireland against that person in any proceedings.

(6) Nothing in this regulation shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court.

(7) In this regulation “warrant” means a warrant under the provisions set out in Schedule 8 as applied by paragraph (4).

PART VIIGROUPS OF COMPANIES AND MID-YEAR CHANGES

Groups of companies

29.  The provisions of Schedule 9 shall apply with regard to groups of companies as defined in that Schedule.

Mid-year changes

30.  The provisions of Schedule 10 shall apply with regard to changes in a year in respect of a person who is a producer in respect of that year and any change in membership of a group of companies or of a scheme by such a producer, or other event affecting a producer in the relevant year.

PART VIIICOMPETITION SCRUTINY

Competition scrutiny

31.—(1) For the purposes of this regulation, the requirements of competition scrutiny in relation to a scheme are that—

(a)the scheme does not have, and is not likely to have, the effect of restricting, distorting or preventing competition or, where it appears to the Secretary of State that the scheme has or is likely to have any such effect, the effect is or is likely to be no greater than is necessary for achieving the environmental or economic benefits mentioned in Article 3(6)(b) of the Order; and

(b)the scheme does not lead, and is not likely to lead, to an abuse of market power.

(2) An operator who intends to apply for registration of a scheme under regulation 12 shall apply to the Director for the purpose of competition scrutiny, and shall submit with the application the information referred to in regulation 12(3)(h) and the information set out in Part III of Schedule 4.

(3) The Director shall advise the Secretary of State whether, in the Director’s opinion, the Secretary of State may be satisfied that the scheme meets the requirements of competition scrutiny.

(4) For the purposes of the Director’s advice under paragraph (3) or (8) as to whether, in his opinion, a scheme may meet or no longer meets the requirements of competition scrutiny, the words “where it appears to the Director” shall be substituted for the words “where it appears to the Secretary of State” in paragraph (1)(a).

(5) If, after considering the advice of the Director, the Secretary of State decides that he is satisfied that the scheme meets the requirements of competition scrutiny, he shall serve notice in writing to the Department, and to the operator of the scheme to that effect.

(6) The Secretary of State shall send a copy of any notice served under paragraph (5) to the Director.

(7) The Director shall keep under review the operation of—

(a)any registered scheme; and

(b)any scheme in respect of which an application for registration is pending and the Secretary of State has given notice under paragraph (5).

(8) Subject to paragraph (9), if at any time the Director is of the opinion that any scheme whose operation he is keeping under review no longer meets the requirements of competition scrutiny, he shall advice the Secretary of State of his opinion and the reasons therefore.

(9) Paragraph (8) shall not require the Director to repeat advice in respect of any scheme which he has previously given under paragraphs (3) or (8) in respect of that scheme unless there has been a material change of circumstances since the advice was given.

(10) If at any time after serving a notice under paragraph (5) the Secretary of State decides, after considering any advice on the matter from the Director, that he has ceased to be satisfied that the scheme meets the requirements of competition scrutiny, he shall serve notice on the operator of the scheme to that effect.

(11) The Secretary of State shall send a copy of any notice given under paragraph (10) to the Director.

(12) For the purposes of, or otherwise in connection with, competition scrutiny, the Director may, by notice in writing, require any person to provide within a specified time such information as may be specified or described in the notice and which that person has, or which he may at any future time, acquire, relating to any scheme or to any acts or omissions of an operator of such a scheme or of any person dealing with such an operator.

PART IXTHE RESTRICTIVE TRADE PRACTICES ACT 1976

The 1976 Act

32.—(1) In this Part “the 1976 Act” means the Restrictive Trade Practices Act 1976(4).

(2) The 1976 Act shall not apply to any agreement for the constitution of a body (whether corporate or unincorporated) which operates a registered scheme by reason of—

(a)any term of the agreement; or

(b)any implied term deemed to be contained in the agreement by virtue of section 8(2) or section 16(3) of the 1976 Act;

being in either case a term which is required or contemplated by that scheme.

(3) Where an agreement ceases by virtue of this regulation to be subject to registration under the 1976 Act—

(a)the Director shall remove from the register maintained by him under the 1976 Act any particulars which are entered or filed in that register in respect of the agreement; and

(b)any proceedings in respect of the agreement which are pending before the Restrictive Practices Court shall be discontinued.

(4) Where an agreement which has been exempt from registration under the 1976 Act by virtue of paragraph (2) ceases to be exempt in consequence of the cancellation of the registration of a scheme under regulation 17, the time within which particulars of the agreement are to be furnished in accordance with section 24 of and Schedule 2 to the 1976 Act shall be the period of one month beginning with the day on which the agreement ceased to be exempt from registration under the 1976 Act.

Agreement to which the 1976 Act applies

33.—(1) In this regulation, “the Court”, “information provision” and “restriction” have the same meanings as they have in the 1976 Act.

(2) This regulation applies to an agreement to which the 1976 Act applies—

(a)at least one of the parties to which is an operator of a registered scheme; and

(b)which is made for the purposes of that scheme.

(3) If it appears to the Secretary of State—

(a)that the restrictions in an agreement to which this regulation applies do not have and are not intended or likely to have the effect of restricting, distorting or preventing competition; or

(b)in a case where all or any of those restrictions have, or are intended or likely to have, that effect, that the effect is not greater than is necessary for achieving the environmental or economic benefits mentioned in Article 3(6) of the Order;

he may give a direction to the Director requiring him not to make an application to the Court under Part I of the 1976 Act in respect of the agreement.

(4) If it appears to the Secretary of State that one or more (but not all) of the restrictions in an agreement to which this regulation applies—

(a)do not have, and are not intended or likely to have, the effect mentioned in paragraph (3); or

(b)if they have, or are intended or likely to have, that effect, that the effect is not greater than is necessary for achieving the benefits mentioned in paragraph (3),

he may make a declaration to that effect and give notice of it to the Director and to the Court.

(5) The Court shall not in any proceedings begun by an application made after notice has been given to it of a declaration under this regulation make any finding or exercise any power under Part I of the 1976 Act in relation to a restriction in respect of which the declaration has effect.

(6) Before making an application to the Court under Part I of the 1976 Act in respect of an agreement to which this regulation applies, the Director shall—

(a)notify the Secretary of State of his intention to do so and give him particulars of the agreement together with such other information as he considers will assist the Secretary of State in deciding whether to exercise his powers under this regulation, or as the Secretary of State may request; and

(b)advise the Secretary of State as to his opinion—

(i)of the effects or likely effects on competition of the restrictions in the agreement, and

(ii)as to whether any such effects are necessary for achieving the benefits mentioned in paragraph (3).

(7) The Director shall not make an application to the Court under Part I of the 1976 Act in respect of an agreement to which this regulation applies unless the Secretary of State has either notified him that he does not intend to give a direction or make a declaration under this regulation or has given him notice of a declaration in respect of it.

(8) The Secretary of State may—

(a)revoke a direction or declaration under this regulation;

(b)vary any such declaration; or

(c)give a direction or make a declaration notwithstanding a previous notification to the Director that he did not intend to give a direction or make a declaration,

if he is satisfied that there has been a material change of circumstances since the direction, declaration or notification was given.

(9) The Secretary of State shall give notice to the Director of the revocation of a direction and to the Director and the Court of the revocation or variation of a declaration; and no such variation shall have effect so as to restrict the powers of the Court in any proceedings begun by an application already made by the Director.

(10) A direction or declaration under this regulation shall cease to have effect if the agreement in question ceases to be an agreement to which this regulation applies.

(11) This regulation applies to information provisions as it applies to restrictions.

PART XOFFENCES

Offences and penalties

34.—(1) Subject to paragraph 5 of Schedule 9, a producer who contravenes a requirement of—

(a)subject to paragraph (2), regulation 3(5)(a);

(b)regulation 3(5)(b)(i); or

(c)regulation 3(5)(b)(ii),

is guilty of an offence.

(2) A producer is not guilty of an offence under paragraph (1)(a) in respect of any period during which, under regulation 6(6), he is treated as having been registered.

(3) A person who—

(a)furnishes a certificate of compliance under regulation 23 and either—

(i)knows the information provided in or in connection with the certificate to be false or misleading in a material particular, or

(ii)furnishes such information recklessly and it is false or misleading in a material particular;

(b)fails without reasonable excuse to furnish any information required by the Director in accordance with regulation 31(12); or

(c)furnishes any information to the Department in connection with its functions under these regulations, or to the Secretary of State or to the Director in connection with the functions of either of them under Part VIII, and either—

(i)knows the information to be false or misleading in a material particular, or

(ii)furnishes such information recklessly and it is false or misleading in a material particular,

is guilty of an offence.

(4) A person who intentionally delays or obstructs a person authorised by the Department in the exercise of powers referred to in regulation 28 is guilty of an offence.

(5) A person guilty of an offence under any of paragraphs (1) to (4) shall be liable—

(a)on summary conviction to a fine not exceeding the statutory maximum; or

(b)on conviction on indictment, to a fine.