Administration
Implementing Regulation
CHAPTER 2
Rights and obligations of persons with regard to the customs legislation
Section 1
Provision of information
Subsection 1
Formats and codes of common data requirements, data-exchange and storage
Article 2
Formats and codes for common data requirements
(Article 6(2) of the Code)
1. The formats and codes for the common data requirements referred to in Article 6(2) of the Code and in Article 2 of Delegated Regulation (EU) 2015/2446 for the exchange and storage of information required for applications and decisions are set out in Annex A.
2. The formats and codes for the common data requirements referred to in Article 6(2) of the Code and in Article 2 of Delegated Regulation (EU) 2015/2446 for the exchange and storage of information required for declarations, notifications and proof of customs status are set out in Annex B.
3. By way of derogation from paragraph 1 of this Article, until the date of deployment of the first phase of the upgrading of the BTI system and the Surveillance 2 system, the codes and formats of Annex A shall not apply and the respective codes and formats shall be those set out in Annexes 2-5 to Commission Delegated Regulation (EU) …/…, establishing transitional rules for certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council, laying down the Union Customs Code where the relevant electronic systems are not yet operational (6).
By way of derogation from paragraph 1 of this Article, until the date of the upgrading of the AEO system, the codes and formats of Annex A shall not apply and the respective codes and formats shall be those set out in Annexes 6-7 to Delegated Regulation (EU) …/…, establishing transitional rules for certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council, laying down the Union Customs Code where the relevant electronic systems are not yet operational.
By way of derogation from paragraph 2 of this Article, until the dates of deployment or upgrading of the relevant IT systems as set out in Annex 1 to Delegated Regulation (EU) …/…, establishing transitional rules for certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council, laying down the Union Customs Code where the relevant electronic systems are not yet operational the formats and codes set out in Annex B shall be optional for Member States.
Until the dates of deployment or upgrading of the relevant IT systems as set out in Annex 1 to Delegated Regulation (EU) …/…, establishing transitional rules for certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council, laying down the Union Customs Code where the relevant electronic systems are not yet operational the formats and codes required for declarations, notifications and proof of customs status shall be subject to the data requirements set out in Annex 9 to Delegated Regulation (EU) …/…, establishing transitional rules for certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council, laying down the Union Customs Code where the relevant electronic systems are not yet operational.
Until the respective dates of the deployment of the UCC Automated Export System and the upgrading of the National Import Systems, as referred to in the Annex to Commission Implementing Decision 2014/255/EU (7), Member States shall ensure that the codes and formats for the notification of presentation allow the presentation of goods in accordance with Article 139 of the Code.
4. Until the date of deployment of the UCC Customs Decisions system, the formats and codes laid down for the following applications and authorisations in Annex A are optional to Member States:
(a)
Applications and authorisations relating to the simplification for the determination of amounts being part of the customs value of the goods;
(b)
Applications and authorisations relating to comprehensive guarantees;
(c)
Applications and authorisations for deferred payment;
(d)
Applications and authorisations for the operation of temporary storage facilities, as referred to in Article 148 of the Code;
(e)
Applications and authorisations for regular shipping services;
(f)
Applications and authorisations for authorised issuer;
(g)
Applications and authorisations for the use of simplified declaration;
(h)
Applications and authorisations for centralised clearance;
(i)
Applications and authorisations for entry of data in the declarant’s records;
(j)
Applications and authorisations for self-assessment;
(k)
Application and authorisation for the status of authorised weigher of bananas;
(l)
Applications and authorisations for the use of inward processing;
(m)
Applications and authorisations for the use of outward processing;
(n)
Applications and authorisations for the use of end use;
(o)
Applications and authorisations for the use of temporary admission;
(p)
Applications and authorisations for the operation of storage facilities for customs warehousing;
(q)
Applications and authorisations for the status of authorised consignee for TIR operations;
(r)
Applications and authorisations for the status of authorised consignor for Union transit;
(s)
Applications and authorisations for the status of authorised consignee for Union transit;
(t)
Applications and authorisations for the use of seals of a special type;
(u)
Applications and authorisations for the use of a transit declaration with reduced dataset;
(v)
Applications and authorisations for the use of an electronic transport document as customs declaration.
Where Member States waive certain codes and formats during the transitional period, they shall ensure that they have implemented effective procedures that allow them to verify that the conditions for granting the authorisation concerned are fulfilled.
Article 3
Security of electronic systems
(Article 16(1) of the Code)
1. When developing, maintaining and employing electronic systems referred to in Article 16(1) of the Code the Member States shall establish and maintain adequate security arrangements for the effective, reliable and secure operation of the various systems. They shall also ensure that measures are in place for checking the source of data and for protecting data against the risk of unauthorised access, loss, alteration or destruction.
2. Each input, modification and deletion of data shall be recorded together with information giving the reason for, and exact time of, such processing and identifying the person who carried it out.
3. The Member States shall inform each other, the Commission and, where appropriate, the economic operator concerned of all actual or suspected breaches of security of the electronic systems.
Article 4
Storage of data
(Article 16(1) of the Code)
All data validated by the relevant electronic system shall be kept for at least 3 years from the end of the year in which such data was validated, unless otherwise specified.
Article 5
Availability of electronic systems
(Article 16(1) of the Code)
1. The Commission and the Member States shall conclude operational agreements laying down the practical requirements for the availability and performance of the electronic systems as well as for business continuity.
2. Operational agreements referred to in paragraph 1 shall in particular lay down appropriate response time for the exchange and processing of information in the relevant electronic systems.
3. The electronic systems shall be kept permanently available. However, that obligation shall not apply:
(a)
in specific cases related to the use of the electronic systems laid down in the agreements referred to in paragraph 1 or, at national level, in the absence of those agreements;
(b)
in the case of force majeure.
Subsection 2
Registration of persons
Article 6
Competent customs authority
(Article 9 of the Code)
The customs authorities responsible for registration shall be those designated by the Member States. The Member States shall communicate the name and address of those authorities to the Commission. The Commission shall publish that information on the Internet.
Article 7
Electronic system relating to EORI number
(Article 16 of the Code)
1. For the exchange and storage of information pertaining to EORI, an electronic system set up for those purposes pursuant to Article 16(1) of the Code (‘EORI system’) shall be used.
Information shall be made available through that system by the competent customs authority whenever new EORI numbers are assigned or there are changes to data stored in respect of registrations already issued.
2. Only one EORI number shall be assigned in respect of each person.
3. The format and codes of the data stored in the EORI system are laid down in Annex 12-01.
4. By way of derogation from paragraph 1 of this Article, until the date of the upgrading of the central EORI system, the formats and codes set out in Annex 12-01 shall not apply.
Until the date of the upgrading of the central EORI system, the codes of the common data requirements for the registration of economic operators and other persons are set out in Annex 9 to Delegated Regulation (EU) 2015/2446, establishing transitional rules for certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council, laying down the Union Customs Code where the relevant electronic systems are not yet operational.
5. Where Member States collect data listed in point 4 of Annex 12-01 they shall ensure that the formats and codes as set out in Annex 12-01 are used.
Section 2
Decisions relating to the application of customs legislation
Subsection 1
Decisions taken by the customs authorities
Article 8
General procedure for the right to be heard
(Article 22(6) of the Code)
1. The communication referred to in the first subparagraph of Article 22(6) of the Code shall:
(a)
include a reference to the documents and information on which the customs authorities intend to base their decision;
(b)
indicate the period within which the person concerned shall express his point of view from the date on which he receives that communication or is deemed to have received it;
(c)
include a reference to the right of the person concerned to have access to the documents and information referred to in point (a) in accordance with the applicable provisions.
2. Where the person concerned gives his point of view before the expiry of the period referred to in paragraph 1(b) the customs authorities may proceed with taking the decision unless the person concerned simultaneously expresses his intention to further express his point of view within the period prescribed.
Article 9
Specific procedure for the right to be heard
(Article 22(6) of the Code)
1. The customs authorities may make the communication referred to in the first subparagraph of Article 22(6) of the Code as part of the process of verification or control where they intend to take a decision on the basis of any of the following:
(a)
the results of a verification following presentation of the goods;
(b)
the results of a verification of the customs declaration as referred to in Article 191 of the Code;
(c)
the results of post-release control as referred to in Article 48 of the Code, where the goods are still under customs supervision;
(d)
the results of a verification of proof of the customs status of Union goods or, where applicable, the results of verification of the application for the registration of such proof or for the endorsement of such proof;
(e)
the issuing of a proof of origin by the customs authorities;
(f)
the results of control of goods for which no summary declaration, temporary storage declaration, re-export declaration or customs declaration was lodged.
2. Where a communication is made in accordance with paragraph 1 the person concerned may:
(a)
immediately express his point of view by the same means as those used for the communication in accordance with Article 9 of Delegated Regulation (EU) 2015/2446; or
(b)
demand a communication in accordance with Article 8 except in the cases referred to in paragraph 1(f).
The person concerned shall be informed by the customs authorities of those two options.
3. Where the customs authorities take a decision adversely affecting the person concerned, they shall record whether that person has expressed his point of view in accordance with paragraph 2(a).
Subsection 2
Decisions taken upon application
Article 10
Electronic systems relating to decisions
(Article 16(1) of the Code)
1. For the exchange and storage of information pertaining to applications and decisions which may have an impact in more than one Member State and to any subsequent event which may affect the original application or decision, an electronic system set up for those purposes pursuant to Article 16(1) of the Code shall be used.
Information shall be made available through that system by the competent customs authority without delay and at the latest within 7 days of the authority gaining knowledge of the information.
2. An EU harmonised trader interface designed by the Commission and the Member States in agreement with each other shall be used for the exchange of information pertaining to applications and decisions which may have an impact in more than one Member State.
3. Paragraphs 1 and 2 of this Article shall be applicable from the date of deployment of the UCC Customs Decisions system as referred to in the Annex to Implementing Decision 2014/255/EU.
Article 11
Customs authority designated to receive applications
(Third subparagraph of Article 22(1) of the Code)
Member States shall communicate to the Commission a list of the customs authorities referred to in the third subparagraph of Article 22(1) of the Code designated to receive applications. Member States shall also communicate to the Commission any subsequent changes to that list.
Article 12
Acceptance of the application
(Article 22(2) of the Code)
1. Where the customs authority accepts an application pursuant to Article 11(1) of Delegated Regulation (EU) 2015/2446, the date of acceptance of that application shall be the date on which all the information required in accordance with the second subparagraph of Article 22 of the Code was received by the customs authority.
2. Where the customs authority establishes that the application does not contain all the information required, it shall ask the applicant to provide the relevant information within a reasonable time limit which shall not exceed 30 days.
Where the applicant does not provide the information requested by the customs authorities within the period set by them for that purpose, the application shall not be accepted and the applicant shall be notified accordingly.
3. In the absence of any communication to the applicant in relation to whether the application has been accepted or not, that application shall be deemed to be accepted. The date of the acceptance shall be the date of submission of the application or, in those cases where additional information has been provided by the applicant following a request of the customs authority as referred to in paragraph 2, the date when the last piece of information has been provided.
Article 13
Storage of information relating to decisions
(Article 23(5) of the Code)
The customs authority competent to take a decision shall retain all data and supporting information which was relied upon when taking the decision for at least 3 years after the end date of its validity.
Article 14
Consultation between the customs authorities
(Article 22 of the Code)
1. Where a customs authority competent to take a decision needs to consult a customs authority of another Member State concerned about the fulfilment of the necessary conditions and criteria for taking a favourable decision, that consultation shall take place within the period prescribed for the decision concerned. The customs authority competent to take a decision shall establish a time-limit for the consultation that starts from the date of communication by that customs authority of the conditions and criteria which need to be examined by the consulted customs authority.
Where, following the examination referred to in the first subparagraph, the consulted customs authority establishes that the applicant does not fulfil one or more of the conditions and criteria for taking a favourable decision, the results, duly documented and justified, shall be transmitted to the customs authority competent to take the decision.
2. The time-limit established for the consultation in accordance with paragraph 1 may be extended by the customs authority competent to take the decision in any of the following cases:
(a)
where due to the nature of the examinations to be performed the consulted authority requests more time;
(b)
where the applicant carries out adjustments in order to ensure the fulfilment of the conditions and criteria referred to in paragraph 1 and communicates them to the customs authority competent to take the decision, which shall inform the consulted customs authority accordingly.
3. Where the consulted customs authority does not respond within the time-limit established for the consultation in accordance with paragraphs 1 and 2, the conditions and criteria for which the consultation took place are deemed to be fulfilled.
4. The consultation procedure laid down in paragraphs 1 and 2 may also be applied for the purposes of re-assessment and monitoring of a decision.
Article 15
Revocation of a favourable decision
(Article 28 of the Code)
A decision suspended in accordance with Article 16(1) of Delegated Regulation (EU) 2015/2446 shall be revoked by the customs authority competent to take a decision in cases referred to in Article 16(1)(b) and (c) of that Regulation, where the holder of the decision fails to take, within the prescribed period of time, the necessary measures to fulfil the conditions laid down for the decision or to comply with the obligations imposed under that decision.
Subsection 3
Decisions relating to binding information
Article 16
Application for a decision relating to binding information
(Article 22(1) of the Code)
1. Where an application for a decision relating to binding information is submitted pursuant to Article 19(1) of Delegated Regulation (EU) 2015/2446 in another Member State than the one in which the applicant is established the customs authority to which the application was submitted shall notify the customs authority of the Member State where the applicant is established within 7 days from the acceptance of the application.
Where the customs authority that receives the notification holds any information that it considers relevant for the processing of the application, it shall transmit such information to the customs authority to which the application was submitted as soon as possible and at the latest within 30 days from the date of the notification.
2. An application for a binding tariff information (BTI) decision shall relate only to goods which have similar characteristics and between which the differences are irrelevant for the purposes of their tariff classification.
3. An application for a binding origin information (BOI) decision shall relate to only one type of goods and one set of circumstances for the determination of origin.
4. For the purposes of ensuring compliance with the requirement set out in point (a) of the second subparagraph of Article 33(1) of the Code in relation to an application for a BTI decision, the customs authority referred to in Article 19(1) of Delegated Regulation (EU) 2015/2446 shall consult the electronic system referred to in Article 21 of this Regulation and keep a record of such consultations.
Article 17
Consistency with existing BTI decisions
(Article 22(3) of the Code)
The customs authority competent to take a decision shall, for the purposes of ensuring that a BTI decision which it intends to issue is consistent with BTI decisions that have already been issued, consult the electronic system referred to in Article 21 and keep a record of such consultations.
Article 18
Notification of BOI decisions
(Article 6(3) of the Code)
1. Where, the customs authority competent to take the decision notifies the applicant of the BOI decision using means other than electronic data-processing techniques, it shall do so using the form set out in Annex 12-02.
2. Where the customs authority competent to take the decision notifies the applicant of the BOI decision using electronic data-processing techniques, that decision shall be printable in accordance with the format set out in Annex 12-02.
Article 19
Exchange of data relating to BOI decisions
(Article 23(5) of the Code)
1. The customs authorities shall transmit to the Commission the relevant details of the BOI decisions on a quarterly basis.
2. The Commission shall make the details obtained in accordance with paragraph 1 available to the customs authorities of all Member States.
Article 20
Monitoring of BTI decisions
(Article 23(5) of the Code)
When customs formalities are being fulfilled by or on behalf of the holder of a BTI decision in respect of goods covered by the BTI decision, this shall be indicated in the customs declaration by stating the BTI decision reference number.
Article 21
Electronic system relating to BTI
(Articles 16(1) and 23(5) of the Code)
1. For the exchange and storage of information pertaining to applications and decisions related to BTI or to any subsequent event which may affect the original application or decision, an electronic system set up for those purposes pursuant to Article 16(1) of the Code shall be used.
Information shall be made available through that system by the competent customs authority without delay and at the latest within 7 days of the authority gaining knowledge of the information.
2. In addition to the information referred to in paragraph 1:
(a)
the surveillance referred to in Article 55 of this Regulation shall include data that are relevant for monitoring the usage of BTI decisions;
(b)
the customs authority that has received the application and has taken the BTI decision shall notify through the system referred to in paragraph 1 if a period of extended use of the BTI decision is granted, indicating the end date of the period of extended use and the quantities of the goods covered by this period.
3. The Commission shall communicate the results of the monitoring referred to in point (a) of paragraph 2 to the Member States on a regular basis in order to support the monitoring by the customs authorities of the compliance with the obligations resulting from the BTI.
4. An EU harmonised trader interface designed by the Commission and the Member States in agreement with each other shall be used for the exchange of information pertaining to applications and decisions related to BTI.
5. When processing an application for a BTI decision, the customs authorities shall indicate the status of the application in the system referred to in paragraph 1.
6. By derogation from paragraph 1 of this Article, until the date of the upgrading of the system referred to therein in accordance with the Annex to Implementing Decision 2014/255/EU, Member States shall use the central database of the Commission set up by Article 8(3) of Commission Regulation (EEC) No 2454/93 (8).
7. Until the date of deployment of the first phase of the upgrading of the system referred to in paragraph 1 of this Article and the system referred to in Article 56 of this Regulation, the customs authorities shall carry out the monitoring of the usage of BTI decisions when conducting customs controls or post-release controls in accordance with Articles 46 and 48 of the Code. By derogation from paragraph 3 of this Article, until that date of deployment, the Commission shall not be obliged to communicate results of the monitoring referred to in point (a) of paragraph 2 of this Article to the Member States.
Article 22
Extended use of decisions relating to binding information
(Article 34(9) of the Code)
1. Where the customs authorities decide to grant a period of extended use in accordance with the third subparagraph of Article 34(9) of the Code, they shall specify the date on which the period of extended use of the decision concerned expires.
2. Where the customs authorities decide to grant a period of extended use of a BTI decision in accordance with the third subparagraph of Article 34(9) of the Code, they shall specify, in addition to the date referred to in paragraph 1, the quantities of the goods that may be cleared during the period of extended use.
The use of a decision for which a period of extended use has been granted shall cease as soon as those quantities are reached.
On the basis of the surveillance referred to in Article 55, the Commission shall inform the Member States as soon as those quantities have been reached.
Article 23
Actions to ensure the correct and uniform tariff classification or determination of origin
(Article 34(10) of the Code)
1. The Commission shall, without delay, notify the customs authorities of the suspension of the taking of BTI and BOI decisions in accordance with Article 34(10)(a) of the Code where:
(a)
the Commission has identified incorrect or non-uniform decisions;
(b)
the customs authorities have submitted to the Commission cases where they failed to resolve, within a maximum period of 90 days, their differences of opinion with regard to the correct and uniform classification or determination of origin.
No decision related to binding information shall be issued for goods subject to point (a) or (b) from the date when the Commission has notified the customs authorities of the suspension until the correct and uniform classification or determination of origin is ensured.
2. The correct and uniform classification or determination of origin shall be subject to consultation at Union level at the earliest opportunity and at the latest within 120 days of the Commission notification referred to in paragraph 1.
3. The Commission shall notify the customs authorities immediately once the suspension is withdrawn.
4. For the purposes of applying paragraphs 1 to 3, BOI decisions shall be deemed to be non-uniform where they confer different origin on goods which:
(a)
fall under the same tariff heading and whose origin was determined in accordance with the same origin rules; and
(b)
have been obtained under identical conditions using the same manufacturing process and equivalent materials as regards notably their originating or non-originating status.
S.I. No. 108/2022 –
European Union (Market Surveillance) (Compliance with Certain Products) Regulations 2022
I, EAMON RYAN, Minister for the Environment, Climate and Communications, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) for the purpose of giving effect to Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 20191 , in so far as it relates to products that are subject to the Union harmonised legislation referred to in Annex I thereto at reference numbers 9, 10, 13, 16, 17, 21, 33, 39, 59, 64 and 67, hereby make the following regulations:
Citation
1. These Regulations may be cited as the European Union (Market Surveillance) (Compliance with Certain Products) Regulations 2022.
Application
2. These Regulations apply to products that are subject to the Union harmonised legislation listed in Annex I to the MSA Regulation at reference numbers 9, 10, 13, 16, 17, 21, 33, 39, 59, 64 and 67, being given effect to in the case of the Directive referred to at—
(a) reference number 9, by the European Union (Packaging) Regulations 2014 ( S.I. No. 282 of 2014 ),
(b) reference number 10, by the European Communities Act 1972 (Environmental Specifications for Petrol, Diesel Fuels and Gas Oils for use by non-road mobile machinery, including inland waterway vessels, agricultural and forestry tractors, and recreational craft) Regulations (S. I. No. 155 of 2011),
(c) reference number 13, by the European Union (End-of-Life Vehicles) Regulations 2014 ( S.I. No. 281 of 2014 ),
(d) reference number 17, by the European Union (Paints, Varnishes, Vehicle Refinishing Products and Activities) Regulations 2012 (S. I. No. 564 of 2012),
(e) reference number 21, by the European Union (Batteries and Accumulators) Regulations 2014 ( S.I. No. 283 of 2014 ), and
(f) reference number 39, by the European Union (Restriction of Certain Hazardous Substances in Electrical and Electronic Equipment) Regulations 2012 ( S.I. No. 513 of 2012 ).
Interpretation
3. (1) In these Regulations —
“authorised officer” means a person appointed under Regulation 7;
“MSA” means the Environmental Protection Agency;
“MSA Regulation” means Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 20191;
“product” means a product that is subject to the Union harmonised legislation to which these Regulations apply.
(2) A reference in these Regulations to an Article, unless otherwise indicated, is a reference to an Article of the MSA Regulation.
(3) A word or expression that is used in these Regulations and is also used in the MSA Regulation has, unless the contrary intention appears, the same meaning in these Regulations as it has in the MSA Regulation.
Designation of market surveillance authority
4. The Environmental Protection Agency is the market surveillance authority for the purposes of organising and carrying out market surveillance in the State as provided for in the MSA Regulation in respect of products that are subject to the Union harmonised legislation to which these Regulations apply.
Failure to cooperate with MSA
5. Where the MSA considers an economic operator is not complying with Article 7(1) or an information society service provider is not complying with Article 7(2), the MSA may apply to the High Court for an order directing compliance in accordance with the terms of the order. The court may make such order as it sees fit.
Contravention of MSA Regulation
6. (1) A person who places a product on the market in contravention of Article 4 commits an offence.
(2) An economic operator who fails to take corrective measures required under Article 16 commits an offence.
(3) A person who puts a product into circulation, which has been suspended under Article 26(1) from free circulation, in contravention of Article 26 commits an offence.
(4) A person who places on the market a product, which has been prohibited under Article 28 (1) or (2) from being placed on the market, in contravention of Article 28 commits an offence.
(5) A person who commits an offence under this Regulation is liable —
(a) on summary conviction, to a class A fine, or
(b) on conviction on indictment, to a fine not exceeding €250,000.
Authorised officers
7. (1) The MSA may appoint persons to be authorised officers for the purpose of ensuring compliance with the MSA Regulation in respect of the products that are subject to the Union harmonised legislation to which these Regulations apply.
(2) An authorised officer shall be furnished with a warrant of his or her appointment as an authorised officer and when exercising a power conferred on him or her under this Regulation, shall, if requested by a person thereby affected, produce the warrant of his or her appointment, or a copy of it, to that person and a form of personal identification.
(3) An authorised officer may, for the purpose of ensuring that MSA Regulation is being complied with in respect of products, do any of the following:
(a) enter at any reasonable time any premises or place, at which there are reasonable grounds to believe that any product or equipment relating thereto is or is likely to be found, and search and inspect the premises or place or product or equipment found there and any certificates, books, documents or records relating to such product or equipment or the placing of it on the market;
(b) secure for later inspection any premises or place or part of it or any product or equipment relating thereto or certificates, books, documents or records relating to such are kept or there are reasonable grounds for believing that such are contained or kept;
(c) require any person in charge of the premises or place or product or equipment relating thereto to produce to him or her any books, documents or records relating to such which are in the person’s power or control (and in the case of such information in a non-legible form to reproduce it in a legible form) and to give to him or her such information as the authorised officer may reasonably require in relation to any entries in such books, documents or records;
(d) inspect and take extracts from or make copies of any such books, documents or records (including, in the case of information in a non-legible form, a copy of or extract from such information in a legible form);
(e) remove and retain such books, documents or records for such period as may be reasonable for further examination;
(f) require any person in charge of the premises or place to maintain such books, documents or records for such period of time, as may be reasonable, as he or she directs;
(g) require any person in charge of the premises or place or such product or equipment to give him or her any information which he or she may reasonably require relating to any product found there;
(h) take without payment of compensation any necessary samples of any such product or equipment;
(i) carry out or have carried out on the sample so taken such analyses, examinations, tests and inspections as he or she considers necessary or expedient;
(j) take photographic or video evidence of the product or equipment found there.
(4) Where an authorised officer in exercise of his or her powers under this Regulation is prevented from entering any premises or place, an application may be made under paragraph (6) for a warrant to authorise such entry.
(5) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling, unless he or she has obtained a warrant under paragraph (6) authorising such entry.
(6) If, on the sworn information of an authorised officer, a judge of the District Court is satisfied that there are reasonable grounds for suspecting that information or any item required by an authorised officer for the purpose of the MSA Regulation is held at any premises or any place, the judge may issue a warrant authorising an authorised officer, accompanied, if appropriate, by other authorised officers and members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production of the warrant, if so requested, to enter those premises or that place, if need be by reasonable force, and exercise all or any of the powers conferred on an authorised officer under this Regulation.
(7) Where an authorised officer in the exercise of his or her powers under this Regulation finds any product to it to which these Regulations apply which is prohibited under Article 26 from being in free circulation, or is prohibited under Article 28 from being placed on the market, the officer may serve on the person in charge of the premises or place or the equipment where it is found a notice in writing addressed to the operator concerned prohibiting the circulation or the placing on the market, as the case may be, of the product or equipment relating to it and requiring its disposal as set out in the notice. If the product is not disposed of in accordance with the notice, an authorised officer may cause the product or equipment to be seized for disposal, the cost of which shall be borne by the operator.
(8) An operator who fails to comply with a notice under paragraph (7) commits an offence and is liable –
(a) on summary conviction, to a class A fine, or
(b) on conviction on indictment, to a fine not exceeding €250,000.
(9) A person who –
(a) without reasonable excuse, fails or refuses to comply with any request or requirement made by an authorised officer under this Regulation (other than under paragraph (7)),
(b) obstructs, impedes or interferes with an authorised officer in the exercise by that officer of a power under this Regulation,
(c) gives to an authorised officer information that is false or misleading in a material respect, or
(d) alters, suppresses or destroys –
(i) any certificate, book, document or record which the person concerned has been required to produce, or reasonably expected to be required to produce, or
(ii) any notice served under paragraph (7),
commits an offence and is liable on summary conviction to a class A fine.
Corrective measures
8. (1) The MSA may require an economic operator to take appropriate action to bring an instance of non-compliance with MSA Regulation in respect of a product to an end to eliminate the risk.
(2) Where the MSA considers that an economic operator is failing to take corrective action required by the MSA under paragraph (1) or where the non-compliance or the risk persists, the MSA may direct—
(a) the corrective action be taken in accordance with the direction,
(b) prohibit or restrict the making available of the product on the market, or
(c) order that the product be withdrawn.
(3) An economic operator who fails to comply with paragraph (2) commits an offence and is liable—
(a) on summary conviction, to a class A fine, or
(b) on conviction on indictment, to a fine not exceeding €250,000.
Elimination of serious risk
9. (1) Where the MSA considers there are no other effective means to eliminate a serious risk, it may—
(a) require the removal of content referring to the related products from an online interface or require the explicit display of a warning to end users when they access an online interface, or
(b) where a requirement according to paragraph (a) has not been complied with, require information society service providers to restrict access to the online interface, including by requesting a relevant third party to implement such measures.
(2) A person who fails to comply with paragraph (1) commits an offence and is liable—
(a) on summary conviction, to a class A fine, or
(b) on conviction on indictment, to a fine not exceeding €250,000.
Service
10. (1) Subject to paragraph (2), any notice, direction or requirement under these Regulations or the MSA Regulation shall be addressed to the person concerned by name and may be given –
(a) by delivering it to the person,
(b) by leaving it at the address at which the person carries on business or ordinarily resides or, in the case in which an address for service has been furnished, at that address,
(c) by sending it by post in a prepaid registered letter to the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, to that address, or
(d) by electronic communication, if the person concerned has agreed to service of it by such means, provided that there is a facility for confirming receipt of the electronic communication and that such receipt has been confirmed.
(2) For the purposes of this Regulation, a company within the meaning of the Companies Act 2014 (No. 38 of 2014) shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.
(3) Where a notice, direction or requirement has been sent to a person in accordance with paragraph (1)(c), it is deemed to have been duly served on or given to the person on the third working day after the day on which it was so sent.
Costs
11. The MSA may recover from the relevant economic operator the totality of the costs of its activities with respect to instances of non-compliance, including those referred to in Article 15(2).
Summary proceedings
12. Proceedings for an offence under these Regulations may be brought and prosecuted summarily by the MSA or the Minister for the Environment, Climate and Communications.
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GIVEN under my Official Seal,
28 February, 2022.
EAMON RYAN,
Minister for the Environment, Climate and Communications.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation).
Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products introduces strengthened market surveillance powers to provide for the free movement of relevant products within the EU. The relevant products are regulated in accordance with EU harmonised legislation specified in the annexes to Regulation (EU) 2019/1020.
These Regulations strengthen the role of the market surveillance authority (the Environmental Protection Authority) in respect of environmental legislation specified in Annex 1 (at reference numbers 9, 10, 13, 16, 17, 21, 33, 39, 59, 64 and 67) to Regulation (EU) 2019/1020.
1 OJ No. L 169, 25,6.2019, p. 1
S.I. No. 26/2023 –
European Union (Customs) Regulations 2023
I, MICHAEL MCGRATH, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving full effect to Regulation (EU) No. 2019/1020 of the European Parliament and of the Council of 20 June 20191 , hereby make the following Regulations:
Citation
1. These Regulations may be cited as the European Union (Customs) Regulations 2023.
Interpretation
2. (1) In these Regulations, “MSA Regulation” means Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 20192 .
(2) A word or expression that is used in these Regulations and is also used in the MSA Regulation has the same meaning in these Regulations as it has in the MSA Regulation.
Designation of customs authority
3. In accordance with Article 25(1) of the MSA Regulation the Revenue Commissioners are designated as the customs authority in charge of the control on products entering the Union market.
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GIVEN under my Official Seal,
1 February, 2023.
MICHAEL MCGRATH,
Minister for Finance.
EXPLANATORY NOTE
(This is not part of the instrument and does not purport to be a legal interpretation.)
These Regulations are made under section 3 of the European Communities Act 1972 and come into effect on 01 February 2023. The purpose of these Regulations is to implement Regulation (EU) No. 2019/2010 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011.
The Regulations provide that Member States must provide that a customs authority, one or more market surveillance authorities or any other authority in their territory, as the authorities in charge of the control on products entering the Union market. These Regulations provide that the Revenue Commissioners are the designated authority in charge of the control of goods entering the Union market in accordance with Article 25(1) of the Regulation.
1 OJ No. L 169, 25.6.2019, p. 1
2 OJ No. L 169, 25.6.2019, p. 1