(2) Without prejudice to the generality of paragraph (1) above and in addition to the phenomena regarded as electromagnetic disturbance pursuant to paragraph (2) above, the phenomena and effects listed in Schedule 2 hereto may be regarded as electromagnetic disturbance.

    (3) A signal or emission which is a necessary function, or consequence of the operation, of relevant apparatus shall not be taken to be electromagnetic disturbance if, in relation to that apparatus, that signal or emission is permitted, and does not exceed the limits specified, by - 

(a) the applicable EMC standard;

(b) a condition of the technical report or technical certificate;

(c) where the apparatus is radiocommunication transmission apparatus - 


(i) a condition of the EC type-examination certificate; or

(ii) a term, provision or limitation of - 


(aa) a licence granted under section 1 of the 1949 Act; or

(bb) regulations made under that section; or



(d) where the apparatus is - 



(i) radiocommunication transmission apparatus; or

(ii) apparatus other than wireless telegraphy apparatus which operates by emitting electromagnetic radiation in the radio frequency spectrum,



any relevant provisions of regulations made under section 10 of the 1949 Act concerning radio frequency spectrum planning.

    (4) A nuclear electromagnetic pulse ("NEMP") shall not be regarded as electromagnetic disturbance.

    (5) Without prejudice to the generality of the foregoing provisions of this regulation, the performance of relevant apparatus shall be taken to be degraded if any of the following types of interference with its function occur - 

(a) permanent, temporary or intermittent - 


(i) total loss of function;

(ii) significant impairment of function; or



(b) where the apparatus is information storage or retrieval equipment, destruction or corruption of information stored thereby.

    (3) Nothing in paragraph (2) above shall be taken to require relevant apparatus, not being apparatus specifically designed for use at a given location, to be constructed in such a manner as to - 

(a) prevent the generation of electromagnetic disturbance to, or

(b) provide for intrinsic immunity to electromagnetic disturbance generated by,

other relevant apparatus which would not reasonably be expected to be present in its usual electromagnetic environment.

    (4) Without prejudice to the generality of paragraph (2)(a), the electromagnetic disturbance generated by relevant apparatus shall - 

(a) not exceed a level allowing radio and telecommunications equipment to operate as intended; and

(b) be such as not to hinder the use of apparatus of any of the descriptions listed in Schedule 3 hereto (being descriptions listed in the illustrative list of the principal protection requirements in Annex III of the EMC Directive) where that apparatus is constructed in such a way that it has an adequate level of immunity in its usual electromagnetic environment so as to allow its unhindered operation taking into account the levels of electromagnetic disturbance generated by relevant apparatus complying with applicable EMC standards.

    (5) Without prejudice to the generality of paragraph (2)(b) - 

(a) relevant apparatus shall be constructed in such a way that it has an adequate level of immunity in its usual electromagnetic environment so as to allow its unhindered operation taking into account the levels of electromagnetic disturbance generated by other relevant apparatus which might reasonably be expected to be present in that environment and which complies with the protection requirements; and

(b) whether the level of intrinsic immunity of relevant apparatus is adequate is to be considered having regard to all the circumstances of the case, and in particular to - 


(i) the level of performance reasonably expected of that apparatus having regard to its function or intended function;

(ii) any specification for an acceptable level of degradation of performance provided to the end user by the manufacturer;

(iii) the consequences of degradation of performance,



but nothing in this sub-paragraph shall authorise a level of intrinsic immunity which could permit the operation of the apparatus to be dangerous (either to persons or property) in any reasonably foreseeable circumstances.

    (6) The information required to enable use in accordance with the intended purpose of the relevant apparatus must be contained in the manufacturer's instructions accompanying the apparatus.

(a) Part I, and regulations 35(6), 36(4), 76 to 79, 82, 83, 84(c) and (d), 86 to 88, 91 to 93 and 95 to 99, apply to electrical apparatus other than relevant apparatus; and

(b) Part I and regulations 7(2), 82, 83, 86, 92, 93, 95, and 99 apply to an excluded installation as a unit (without prejudice to the application of the provisions referred to in sub-paragraph (a) above to such installation or any part thereof on the ground that it is electrical apparatus).

(a) the relevant apparatus conforms with the protection requirements;

(b) the conformity assessment requirements have been complied with;

(c) the CE marking has been properly affixed by the manufacturer or his authorised representative in relation to the relevant apparatus in accordance with regulation 35 below; and

(d) the manufacturer or his authorised representative has properly issued an EC declaration of conformity in respect of the relevant apparatus in accordance with the requirements of regulation 36 below.

    (3) Subject to paragraph (4) below, where the apparatus is the subject of other Community Directives covering other aspects and which also provide for the CE conformity marking, the latter shall indicate that the apparatus is also presumed to conform to those other Directives.

    (4) Where one or more of the other Directives referred to in paragraph (3) above allow the manufacturer, during a transitional period, to choose which arrangements to apply, the CE marking shall indicate conformity only to the Directives applied by the manufacturer. In this case, particulars of the Directives applied, as published in the Official Journal of the European Communities, must be given in the documents, notices or instructions required by the Directives and accompanying such apparatus.

    (5) No person shall affix to relevant apparatus, its packaging, the instructions for use or the guarantee certificate any marking which is likely to deceive third parties as to the meaning and form of the CE marking. Any other marking may be affixed to the apparatus, its packaging, the instructions for use or the guarantee certificate provided that the visibility and legibility of the CE marking are not thereby reduced.

    (6) No person shall affix the CE marking, or any other inscription liable to be confused with it, in relation to any relevant apparatus, unless - 

(a) the apparatus complies with the protection requirements; and

(b) the conformity assessment requirements have been complied with.

    (7) Except as provided in paragraph (3) above, no person shall affix the CE marking, or any other inscription liable to be confused with it, to any electrical apparatus other than relevant apparatus.

    (8) The CE marking shall comply with the form requirements set out in Schedule 4 to these Regulations.

    (9) In these Regulations, "CE marking" means the CE conformity marking, being a mark - 

(a) consisting of the initials "CE";

(b) taking the form set out in paragraph 1 of Schedule 4 hereto; and

(c) which, when used in relation to the EMC Directive, indicates conformity to all the provisions of that Directive, including the conformity assessment requirements.

    (3) No person shall (in the United Kingdom) issue an EC declaration of conformity in relation to relevant apparatus unless - 

(a) the apparatus to which it relates conforms with the protection requirements;

(b) the conformity assessment requirements have been complied with; and

(c) the requirements of paragraph (2)(c) above are complied with.

(a) the circumstances and manner in which the conformity assessment requirements may be complied with pursuant to the technical construction file route to compliance; and

(b) the appointment of United Kingdom competent bodies to exercise functions in relation thereto, and matters incidental to such appointment and exercise.

    (2) A technical construction file may be composed in relation to - 

(a) a single item of apparatus;

(b) where a number of items are to be produced, a specimen representative of the production envisaged (a "representative"); or

(c) a number of items of apparatus or representatives of each such item or representative being variants of the same basic design (each such item or representative being referred to as a "variant").

    (3) Without prejudice to the generality of paragraph (1) above, a technical construction file composed in the United Kingdom shall - 

(a) be in material form;

(b) be in - 


(i) English where application for the technical report or technical certificate is made to a United Kingdom competent body; or

(ii) any official Community language acceptable to the competent body where such application is made to a competent body of another member State;



(c) give the name and address - 



(i) of the responsible person;

(ii) where that person is not the manufacturer, of the manufacturer;



(d) contain such information as is sufficient, in all the circumstances of the case, to enable the enforcement authority to - 



(i) identify the apparatus to which it relates; and

(ii) ascertain whether the apparatus to which it relates conforms with the protection requirements;



(e) state the numbers and titles of the applicable EMC standards, and any other standards, specifications or codes of practice, applied by the manufacturer; and

(f) contain particulars of the electromagnetic environment for which the apparatus is suitable.

    (2) The criteria listed in Schedule 5 hereto (being the criteria for the assessment of the bodies to be notified listed in Annex II of the EMC Directive and the criteria which competent bodies are required by Article 1.5 of that Directive to meet) ("the minimum criteria") must be satisfied in relation to any person if that person is to be appointed or remain a United Kingdom competent body, and accordingly the Secretary of State shall not - 

(a) make an appointment under regulation 48(1) above unless she is satisfied that the person concerned meets the minimum criteria; or

(b) authorise under regulation 48(3) above the appointment to have effect in relation to any description of relevant apparatus unless she is satisfied that the body meets the minimum criteria in respect of that description of apparatus.

    (3) The Secretary of State shall from time to time verify that each United Kingdom competent body meets the minimum criteria listed in paragraphs 1 and 2 of Schedule 5 hereto.

    (4) A person who complies with the assessment criteria fixed by a standard which is a relevant harmonised standard within the meaning of Article 10.6 of the EMC Directive shall be presumed to meet the minimum criteria.

    (5) An appointment under regulation 48 above may be subject to the condition that only a defined part of the undertaking of the appointed person may exercise the functions of a competent body, and where an appointment is, or is to be, subject to such a condition - 

(a) a reference in these Regulations to a person's meeting the minimum criteria shall be construed in relation to that person as a reference to the part of that person's undertaking so defined meeting those criteria; and

(b) the conditions of the appointment shall include provision for ensuring that the confidentiality of confidential information held by the part of the undertaking so defined in pursuance of its function as a United Kingdom competent body is protected from disclosure to other parts of the undertaking.

    (2) Where the Secretary of State exercises the power conferred by paragraph (1) above - 

(a) the notice of termination shall take effect on such date as shall be specified therein; and

(b) the Secretary of State shall inform the appropriate authorities of the other member States and the Commission.

    (3) Where the Secretary of State - 

(a) withdraws the authorisation of a United Kingdom competent body to exercise functions in relation to any description of apparatus pursuant to regulation 48(3) above; or

(b) terminates the appointment of such a body pursuant to paragraph (1) of this regulation,

    (2) A United Kingdom competent body shall not be required to - 

(a) accept an application for a technical report or technical certificate where - 


(i) the application, and the draft technical construction file, are not in English or another language acceptable to that body;

(ii) the applicant has not submitted with the application the amount of the fee which the competent body (not being the Secretary of State) requires to be submitted with the application pursuant to regulation 51(2) above; or

(iii) the body reasonably believes that, having regard to the number of applications for technical reports or technical certificates made to it which are outstanding, it will be unable to determine the application within three months of receiving the application;



(b) determine an application for a technical report or technical certificate where the manufacturer has not - 



(i) granted the body access to the apparatus to which the application relates or the production facilities for the apparatus (including where applicable the production envisaged in relation to a representative) to the extent that the body reasonably requests; and

(ii) made available to the body such information as it may reasonably require to determine the application; or



(c) having determined the application, inform the applicant of the result thereof or, in the case of a successful application, issue the technical report or technical certificate, unless the applicant has paid any fees chargeable pursuant to regulation 51 above or in accordance with regulations made under section 56 of the Finance Act 1973, as the case may be.

the United Kingdom competent body shall - 

(i) give notice in writing to the applicant, or holder of the technical report or technical certificate concerned, as the case may be ("the person concerned"), of the reasons why it proposes to make the unfavourable decision; and

(ii) give the person concerned the opportunity of making representations within a period of 28 days of the notice being given as to why that body should make a favourable decision, and consider any representations which are made by that person within that period.

EC declaration of conformity

"minimum criteria" shall be construed in accordance with regulation 49(2);

"representative" shall be construed in accordance with regulation 45(2)(b); and

"variant" shall be construed in accordance with regulation 45(2)(c).

(a) the manner in which the conformity assessment requirements shall be complied with in relation to radiocommunication transmission apparatus pursuant to the EC type-examination route to compliance; and

(b) United Kingdom notified bodies to exercise functions in relation thereto, and matters incidental to such exercise.

    (2) For the purposes of these Regulations, "radiocommunication transmission apparatus" is wireless telegraphy apparatus for - 

(a) transmitting; or

(b) both transmitting and receiving,other than - 


(i) radio amateur apparatus designed, and intended by the manufacturer, for use exclusively by radio amateurs;

(ii) apparatus neither designed nor intended by the manufacturer to be used for transmitting in conjunction with other wireless telegraphy apparatus; or

(iii) apparatus which is dependent for its operation on a magnetic as distinct from an electromagnetic field.

    (3) Following examination and testing pursuant to paragraph (2) above, the United Kingdom notified body shall determine whether or not the apparatus to which the application relates conforms with the protection requirements.

    (4) Where in the opinion of the United Kingdom notified body the apparatus to which an application relates conforms with the protection requirements, it shall issue an EC type-examination certificate in respect thereof.

    (5) Subject to regulation 71 below, where in the opinion of the United Kingdom notified body the apparatus to which the application relates does not conform with the protection requirements, it shall refuse to issue the EC type-examination certificate, giving written reasons for the refusal.

    (6) An EC type-examination certificate may relate to - 

(a) a single item of apparatus;

(b) where a number of items are to be produced, a specimen representative of the production envisaged (a "representative"); or

(c) a number of items or representatives of each such item or representative being variants of the same basic design.

    (2) Nothing in these Regulations shall require a United Kingdom notified body to - 

(a) determine a relevant application; or

(b) having determined the application, inform the applicant of the result thereof or, in the case of a successful application, issue the EC type-examination certificate,

the United Kingdom notified body shall - 

(i) give notice in writing to the applicant, or holder of the EC type-examination certificate concerned, as the case may be ("the person concerned"), of the reasons why it proposes to make the unfavourable decision; and

(ii) give the person concerned the opportunity of making representations within a period of 28 days of the notice being given as to why that body should make a favourable decision, and consider any representations which are made by that person within that period.

EC declaration of conformity

"examine" includes, where a UK notified body considers appropriate, the disassembly of apparatus.

    (3) If the officer has reasonable grounds for suspecting that there has been a contravention of any of the requirements of Part III of these Regulations, he may for the purpose of ascertaining (by testing or otherwise) whether there has been any such contravention, seize and detain any electrical apparatus.

    (4) The officer may seize and detain - 

(a) any electrical apparatus, any document, record or information which the officer may require production of under regulation 84 below, or any other thing, which he has reasonable grounds for believing may be required - 


(i) as evidence in proceedings for an offence under these Regulations;

(ii) by a competent authority of a member State other than the United Kingdom for the purpose of the exercise of its functions; or



(b) any electrical apparatus which he has reasonable grounds for suspecting may be liable to be forfeited under regulation 97 or 98 below.

    (5) The officer may, for the purpose of the exercise of his powers under paragraphs (3) or (4) above to seize any electrical apparatus, any document or record or any other thing - 

(a) require any person having authority to do so to open any container; and

(b) himself open or break open any such container where a requirement made under paragraph (a) above in relation to the container has not been complied with.

    (3) An officer entering any premises by virtue of regulation 77 above or a warrant under paragraph (2) of this regulation may take with him such other persons and such equipment as may appear to him necessary.

    (4) On leaving any premises which a person is authorised to enter by a warrant under paragraph (2) of this regulation, that person shall, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as he found them.

    (5) Where any apparatus seized by an officer under regulation 77 above is submitted to a test, the officer shall inform the persons mentioned in paragraph (1) of this regulation of the result of the test and, if - 

(a) proceedings are brought for an offence in respect of a contravention in relation to any relevant apparatus of any provision of these Regulations or for the forfeiture of any relevant apparatus under regulation 97 or 98 below, or a suspension notice is served in respect of any relevant apparatus; and

(b) the officer is requested to do so and it is practicable to comply with the request,

    (3) On an application under this regulation to a magistrates' court or to the sheriff, an order requiring apparatus to be released shall be made only if the court or sheriff is satisfied - 

(a) that proceedings - 


(i) for an offence under regulation 85, 86 or 88 below in respect of the apparatus; or

(ii) for the forfeiture of the apparatus under regulation 97 or 98 below,



have not been brought or, having been brought, have been concluded without the apparatus being forfeited; and

(b) where no such proceedings have been brought, that more than six months have elapsed since the apparatus was seized.

    (4) Any person aggrieved by an order made under this regulation by a magistrates' court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision - 

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court,

    (4) Without prejudice to paragraph 3(a) and (b), a notice served pursuant to paragraph (1) above shall include, but not by way of limitation,

(a) a description of the electrical apparatus in respect of which the notice is served on the manufacturer or his authorised representative in a manner sufficient to identify it;

(b) a statement that the CE mark or CE marking affixed to either the electrical apparatus or the apparatus' packaging, instructions for use or guarantee certificate is unduly affixed, or that the CE mark or CE marking is affixed to some other item accompanying the apparatus;

(c) a statement of the grounds upon which it is established that the CE mark or CE marking has been or is being unduly affixed in relation to the electrical apparatus; and

(d) an indication as to which of the following procedures cannot be commenced unless the requirements of this regulation are satisfied: - 


(i) a notice pursuant to regulation 81 or 82 below; or

(ii) proceedings pursuant to regulation 85, 88, 97 or 98 below,



and may include such other information as may be considered expedient to enable the person to whom the notice is addressed to decide what action should be taken to end the particular infringement.

without the consent of that authority.

    (2) A suspension notice served by an enforcement authority in respect of any apparatus or excluded installation shall - 

(a) describe the apparatus or installation to which it relates in a manner sufficient to identify it;

(b) set out the grounds on which the authority suspects that regulation 30, 31 or 36(4) above has been, is being or is likely to be contravened, as the case may be; and

(c) state that, and the manner in which, the person on whom the notice is served may appeal against the notice under regulation 83 below.

    (3) A consent given by an enforcement authority for the purposes of a suspension notice may impose such conditions on the doing of anything for which the consent is required as that authority considers appropriate.

    (4) A suspension notice may require the person on whom it is served to keep the enforcement authority which served the notice informed of the whereabouts throughout the period during which the notice has effect of any of the apparatus, or the excluded installation, in which that person has an interest.

    (5) Where a suspension notice has been served on any person in respect of any apparatus or excluded installation, no further such notice shall be served on that person in respect of the same apparatus unless - 

(a) proceedings against that person for an offence under regulation 85, 86 or 88 below; or

(b) proceedings for the forfeiture of the apparatus under regulation 97 or 98 below,

    (3) On an application under this regulation to a magistrates' court in England and Wales or Northern Ireland the court shall make an order setting aside the suspension notice only if the court is satisfied that there has been no contravention in relation to the apparatus, or any item of relevant apparatus or system included in the excluded installation, of regulation 30, 31 or 36(4) above as the case may be.

    (4) On an application under this regulation to the sheriff he shall make an order setting aside the suspension notice only if he is satisfied that at the date of making the order - 

(a) proceedings for an offence under regulation 85, 86 or 88 below; or

(b) proceedings for the forfeiture of the apparatus under regulation 98 below,

have not been brought or, having been brought, have been concluded.

    (5) Any person aggrieved by an order made under this regulation by a magistrates' court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision - 

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court,

and such officer may inspect any thing which he may require to be produced under this regulation, and take a copy thereof or of any part thereof.

(a) makes any statement which he knows is false or misleading in a material particular; or

(b) recklessly makes any statement which is false or misleading in a material particular,

that person shall not, without the leave of the court, be entitled to rely on the defence unless, not less than seven clear days before the hearing of the proceedings (or, in Scotland the trial diet), he has served a notice under paragraph (3) below on the person bringing the proceedings.

    (3) A notice under this paragraph shall give such information identifying or assisting in the identification of the person who committed the act or default or gave the information as is in the possession of the person serving the notice at the time he serves it.

    (4) It is hereby declared that a person shall not be entitled to rely on the defence provided by paragraph (1) above by reason of his reliance on information supplied by another, unless he shows that it was reasonable in all the circumstances for him to have relied on the information, having regard in particular - 

(a) to the steps which he took, and those which might reasonably have been taken, for the purpose of verifying the information; and

(b) to whether he had any reason to disbelieve the information.

    (2) An application under this regulation may be made - 

(a) where proceedings have been brought in a magistrates' court in respect of an offence in relation to some or all of the apparatus under regulation 85, 86 or 88, to that court;

(b) where an application with respect to some or all of the apparatus has been made to a magistrates' court under regulation 79 or 83 above, to that court; and

(c) where no application for the forfeiture of the apparatus has been made under sub-paragraph (a) or (b) above, by way of complaint to a magistrates' court.

    (3) On an application under this regulation the court shall make an order for the forfeiture of the apparatus only if it is satisfied that there has been a contravention in relation thereto of regulation 30, 31 or 35(6) above as the case may be.

    (4) For the avoidance of doubt it is hereby declared that a court may infer for the purposes of this regulation that there has been a contravention in relation to any apparatus of regulation 30, 31 or 35(6) above as the case may be if it is satisfied that that provision has been contravened in relation to apparatus which is representative of that apparatus (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

    (5) Any person aggrieved by an order made under this regulation by a magistrates' court, or by a decision of such court not to make such an order, may appeal against that order or decision - 

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court,

and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of an order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980 or article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)).

    (6) Subject to paragraph (7) below, where any apparatus is forfeited under this regulation it shall be destroyed in accordance with such directions as the court may give.

    (7) On making an order under this regulation a magistrates' court may, if it considers it appropriate to do so, direct that the apparatus to which the order relates shall (instead of being destroyed) be released, to such person as the court may specify, on condition that that person - 

(a) does not supply the apparatus to any person otherwise than - 


(i) to a person who carries on a business of buying apparatus of the same description as the first mentioned apparatus and repairing or reconditioning it; or

(ii) as scrap (that is to say, for the value of materials included in the apparatus rather than for the value of the apparatus itself); and



(b) complies with any order to pay costs or expenses (including any order under regulation 99 below) which has been made against that person in the proceedings for the order for forfeiture.

may be made by the sheriff - 

(i) on an application by the procurator-fiscal made in the manner specified in section 134 of the Criminal Procedure (Scotland) Act 1995; or

(ii) where a person is convicted of any offence in respect of any such contravention, in addition to any other penalty which the sheriff may impose.

    (2) The procurator-fiscal making an application under paragraph (1)(i) above shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the apparatus to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the apparatus should not be forfeited.

    (3) Service under paragraph (2) above shall be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1995.

    (4) Any person upon whom a notice is served under paragraph (2) above and any other person claiming to be the owner of, or otherwise to have an interest in, the apparatus to which an application under this regulation relates shall be entitled to appear at the hearing of the application to show cause why the apparatus should not be forfeited.

    (5) The sheriff shall not make an order following an application under paragraph (1)(i) above - 

(a) if any person on whom notice is served under paragraph (2) above does not appear, unless service of the notice on that person is proved; or

(b) if no notice under paragraph (2) above has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve notice on any person.

    (6) The sheriff shall make an order under this regulation only if he is satisfied that there has been a contravention in relation to the apparatus of regulation 30, 31 or 35(6) above as the case may be.

    (7) For the avoidance of doubt it is hereby declared that the sheriff may infer for the purposes of this regulation that there has been a contravention in relation to any apparatus of regulation 30, 31 or 35(6) above if he is satisfied that that provision has been contravened in relation to apparatus which is representative of that apparatus (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

    (8) Where an order for the forfeiture of any apparatus is made following an application by the procurator-fiscal under paragraph (1)(i) above, any person who appeared, or was entitled to appear, to show cause why it should not be forfeited may, within twenty-one days of the making of the order, appeal to the High Court by Bill of Suspension on the ground of an alleged miscarriage of justice; and section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply to an appeal under this paragraph as it applies to a stated case under Part X of that Act.

    (9) An order following an application under paragraph (1)(i) above shall not take effect - 

(a) until the end of the period of twenty-one days beginning with the day after the day on which the order is made; or

(b) if an appeal is made under paragraph (8) above within that period, until the appeal is determined or abandoned.

    (10) An order under paragraph (1)(ii) shall not take effect - 

(a) until the end of the period within which an appeal against the order could be brought under the Criminal Procedure (Scotland) Act 1995; or

(b) if an appeal is made within that period, until the appeal is determined or abandoned.

    (11) Subject to paragraph (12) below, apparatus forfeited under this regulation shall be destroyed in accordance with such directions as the sheriff may give.

    (12) If he thinks fit, the sheriff may direct the apparatus to be (instead of being destroyed) released to such person as he may specify, on condition that that person does not supply it to any person otherwise than - 

(a) to a person who carries on a business of buying apparatus of the same description as the first-mentioned apparatus and repairing or reconditioning it; or

(b) as scrap (that is to say, for the value of materials included in the apparatus rather than for the value of the apparatus itself).

    (2) The court may (in addition to any other order it may make as to costs or expenses) order the person convicted or, as the case may be, any person having an interest in the apparatus the subject of the order for forfeiture, to reimburse an enforcement authority for any expenditure which has been or may be incurred by that authority - 

(a) in investigating the offence, and, without prejudice to the generality of the foregoing, in having the apparatus tested;

(b) in connection with any seizure or detention of the apparatus by or on behalf of the authority; or

(c) in connection with any compliance by that authority with directions given by the court for the purposes of any order for the forfeiture of the apparatus.

(a) by delivering it to him or by leaving it at his proper address or by sending it by post to him at that address;

(b) if the person is a body corporate, by serving it in accordance with sub-paragraph (a) above on the secretary or clerk of that body; or

(c) if the person is a partnership, by serving it in accordance with that sub-paragraph on a partner or on a person having control or management of the partnership business.

 -  harmonics, interharmonics;

 -  signalling voltages;

 -  voltage fluctuations;

 -  voltage dips and interruptions;

 -  voltage unbalance;

 -  power-frequency variations;

 -  induced low-frequency voltages;

 -  DC in AC networks; and

 -  DC ground circuits;

     2. Radiated low-frequency phenomena - 

 -  magnetic fields; and

 -  electric fields;

     3. Conducted high-frequency phenomena - 

 -  induced continuous wave (CW) voltages or currents;

 -  unidirectional transients; and

 -  oscillatory transients;

     4. Radiated high frequency phenomena - 

 -  magnetic fields;

 -  electric fields;

 -  electromagnetic fields;

 -  continuous waves; and

 -  transients; and

     5. Electrostatic discharge phenomena (ESD).

 -  aeronautical mobile - 

     -  associated ground communications;
     -  EPIRB/ELT (Emergency Position Indicating Radio Beacon/Emergency Locating Transmitter);
     -  ground and airborne equipment for primary and secondary radar for - 
     -  the CAA;
     -  the Ministry of Defence; and
     -  private airfield operators;

     -  general communications -
 

     -  ground/air;
     -  ground/ground; and
     -  air/air; and

     -  aeronautical earth station equipment;
     -  radio navigation -
 

     -  radio altimeters;
     -  ILS (Instrument Landing System); and
     -  aeronautical radiobeacons;

     -  satellite aeronautical mobile radio -
 

      -  EPIRB/ELT; and
     -  voice, medium speed data and low speed data in each case via INMARSAT (satellite operated by the International Maritime Satellite Organisation);

     -  aeronautical radionavigation -
 

     -  ILS/MLS (Microwave Landing System);
     -  ATC (Air Traffic Control) marker beacons for aircraft;
     -  radionavigation satellite equipment on board aircraft;
     -  hyperbolic navigation aids;
     -  NDB;
     -  VOR (VHF Omnidirectional Range);
     -  TACAN/DME (Tactical Air Navigation/Distance Measuring Equipment); and
     -  satellite navigation systems -
 
     -  ADS (Automatic Dependent Surveillance); and
     -  CIS (Co-operative Independent Surveillance); and

     -  radiolocation and radiodetermination -
 

     -  radar -
 
     -  primary;
     -  OTHR (Over the Horizon Radar);
     -  secondary;
     -  ground; and
     -  airborne; and

    any other apparatus not subject to Directive 1999/5/EC on Radio Equipment and Telecommunications Terminal Equipment by virtue of Annex 1, paragraphs 5 and 6 of that Directive.

     2. OFCOM is authorised (as a United Kingdom notified body) in relation to every description of radiocommunication transmission apparatus not provided for in paragraph 1 above.

(a) state that the Secretary of State considers that - 


(i) where the notice is served on a manufacturer or supplier, the relevant apparatus does not comply with the protection requirements or the requirements of regulation 32 as the case may be; or

(ii) where the notice is served on a user, the relevant apparatus did not so comply at the time when it was supplied;



(b) set out the reasons why the Secretary of State so considers;

(c) specify the day on which the notice is to come into force; and

(d) state that the manufacturer, supplier or user as the case may be may at any time make representations in writing to the Secretary of State for the purpose of establishing that that apparatus so complies or did so comply, as the case may require.

     2.  - (1) If representations in writing about a prohibition notice are made by the manufacturer, supplier or user to the Secretary of State, it shall be the duty of the Secretary of State to consider whether to revoke the notice and - 

(a) if she decides to revoke it, to do so;

(b) in any other case, to appoint a person to consider those representations, any further representations made (whether in writing or orally) by the notified person about the notice and the statements of any witnesses examined under this Schedule.

    (2) Where the Secretary of State has appointed a person to consider representations about a prohibition notice, she shall serve a notification on the notified person which - 

(a) states that the notified person may make oral representations to the appointed person for the purpose of establishing that the relevant apparatus to which the notice relates complies or did comply as the case may require with the protection requirements or regulation 32 as the case may be; and

(b) specifies the place and time at which the oral representations may be made.

    (3) The time specified in a notification served under sub-paragraph (2) above shall not be before the end of the period of twenty-one days beginning with the day on which the notification is served, unless the notified person otherwise agrees.

    (4) A person on whom a notification has been served under sub-paragraph (2) above or his representative may, at the place and time specified in the notification - 

(a) make oral representations to the appointed person for the purpose of establishing that the apparatus in question complies or did so comply as the case may require; and

(b) call and examine witnesses in connection with the representations.

     3.  - (1) Where representations in writing about a prohibition notice are made by the notified person to the Secretary of State at any time after a person has been appointed to consider representations about that notice, then, whether or not the appointed person has made a report to the Secretary of State, the following provisions of this paragraph shall apply instead of paragraph 2 above.

    (2) The Secretary of State shall, before the end of the period of one month beginning with the day on which she receives the representations, serve a notification on the notified person which states - 

(a) that the Secretary of State has decided to revoke the notice, has decided to vary it or, as the case may be, has decided neither to revoke nor to vary it; or

(b) that, a person having been appointed to consider representations about the notice, the notified person may, at a place and time specified in the notification, make oral representations to the appointed person for the purpose of establishing that the apparatus to which the notice relates complies or did so comply as the case may require with the protection requirements or regulation 32 as the case may be.

    (3) The time specified in a notification served for the purposes of sub-paragraph (2)(b) above shall not be before the end of the period of twenty-one days beginning with the day on which the notification is served, unless the notified person otherwise agrees or the time is the time already specified for the purposes of paragraph 2(2)(b) above.

    (4) A person on whom a notification has been served for the purposes of sub-paragraph (2)(b) above or his representative may, at the place and time specified in the notification - 

(a) make oral representations to the appointed person for the purpose of establishing that the apparatus in question complies or did so comply as the case may require; and

(b) call and examine witnesses in connection with the representations.

     4.  - (1) Where a person is appointed to consider representations about a prohibition notice, it shall be his duty to consider - 

(a) any written representations made by the notified person about the notice, other than those in respect of which a notification is served under paragraph 3(2)(a) above;

(b) any oral representations made under paragraph 2(4) or 3(4) above; and

(c) any statements made by witnesses in connection with the oral representations,

and, after considering any matters under this paragraph, to make a report (including recommendations) to the Secretary of State about the matters considered by her and the notice.

    (2) It shall be the duty of the Secretary of State to consider any report made to her under sub-paragraph (1) above and, after considering the report, to inform the notified person of her decision with respect to the prohibition notice to which the report relates.

     5.  - (1) The Secretary of State may revoke or vary a prohibition notice by serving on the notified person a notification stating that the notice is revoked or, as the case may be, is varied as specified in the notification.

    (2) The Secretary of State shall not vary a prohibition notice so as to make the effect of the notice more restrictive for the notified person.

    (3) The service of a notification under sub-paragraph (l) above shall be sufficient to satisfy the requirement of paragraph 4(2) above that the notified person shall be informed of the Secretary of State's decision.

     6.  - (1) Where in a notification served on any person under this Schedule the Secretary of State has appointed a time for the making of oral representations or the examination of witnesses, she may, by giving that person such notification as the Secretary of State considers appropriate, change that time to a later time or appoint further times at which further representations may be made or the examination of witnesses may be continued; and paragraphs 2(4) and 3(4) above shall have effect accordingly.

    (2) For the purposes of this Schedule the Secretary of State may appoint a person (instead of the appointed person) to consider any representations or statements, if the person originally appointed, or last appointed under this sub-paragraph, to consider those representations or statements has died or appears to the Secretary of State to be otherwise unable to act.

     7. In this Schedule - 

"the appointed person" in relation to a prohibition notice means the person for the time being appointed under this Schedule to consider representations about the notice;

"notification" means a notification in writing; and

"notified person", in relation to a prohibition notice, means the manufacturer, supplier or user on whom the notice is or was served.

(a) the relevant apparatus complies with the protection requirements;

(b) the conformity assessment requirements have been complied with (regulation 33);

(c) the CE mark (the form of which is shown in Schedule 4) has been properly affixed by the manufacturer or his authorised representative (regulation 35); and

(d) the manufacturer or his authorised representative has issued an EC declaration of conformity (regulation 36).

Regulation 31 provides that relevant apparatus may not be taken into service unless it conforms with the protection requirements. (The protection requirements are found in regulation 5).

Regulation 37 requires that the responsible person must retain the EC declaration of conformity and, where applicable, the technical construction file or EC type-examination certificate, for ten years following the date on which the latest item of apparatus to which those documents apply is supplied. The responsible person may be required to produce such documentation (regulation 37 and 84).

The conformity assessment requirements are satisfied by one of three routes:

(a) the standards route to compliance, set out in Part IV, which is satisfied where the manufacturer has applied standards in respect of the electromagnetic characteristics of the apparatus (regulation 39). Where the manufacturer or his authorised representative is in the United Kingdom he issues the EC declaration of conformity in accordance with regulation 42;

(b) the technical construction file route to compliance set out in Part V. This is used where the manufacturer has not applied standards in respect of some or all of the EMC characteristics of the apparatus, either due to choice or because there is no appropriate standard. The manufacturer or his authorised representative must compose a technical construction file covering the electromagnetic characteristics in respect of which standards have not been applied and stating the standards which have been applied, which must contain a technical report or technical certificate issued by a competent body appointed by one of the member States. Regulations 48 to 58 and Schedule 5 make provision in respect of the appointment and functions of United Kingdom competent bodies, and related matters. Where this route is used and the manufacturer or his authorised representative is in the United Kingdom, the EC declaration of conformity is issued in accordance with regulation 59; and

(c) the EC type-examination route to compliance for radiocommunication transmission apparatus, set out in Part VI. The manufacturer or his authorised representative must obtain an EC type-examination certificate from a notified body (regulation 63). Regulations 64 to 72 make provision in respect of the bodies which are United Kingdom notified bodies (these are the Civil Aviation Authority and OFCOM - the descriptions of apparatus in respect of which each body is authorised to act, are set out in Schedule 6). Where this route is used and the manufacturer or his authorised representative is in the United Kingdom, he issues the EC declarations of conformity in accordance with regulation 72. Certain apparatus is specifically excepted from the requirement to obtain an EC type-examination certificate.