ENERGY CONSERVATION Citation and commencement 1 These Regulations may be cited as the Boiler (Efficiency) Regulations 1993 and, except as respects regulation 9, come into force on 1st January 1994; regulation 9 comes into force on 1st January 1995. Interpretation 2 1 In these Regulations, unless the context otherwise requires “appliance” means— a a boiler body designed to have a burner fitted, or b a burner designed to be fitted to a boiler body; “average temperature of the boiler water” means the average of the water temperatures at the entry and exit of the boiler; “boiler” means a hot water boiler comprising an assembly of a boiler body designed to have a burner fitted and a burner designed to be fitted to a boiler body which — is designed to transmit the heat obtained from burning fuel to water, is designed to be fired by liquid or gaseous fuels, has an effective rated output of not less than 4 kW and not more than 400kW, is designed to have an exit temperature for the water of less than 105oC; “the Community” means the European Economic Community; “the Directive” means Council Directive 92/42/ EEC concerning efficiency requirements for new hot water boilers fired with liquid or gaseous fuels; “ EC mark”, except in relation to regulations 5(2)(d), 6(2)(d) and 7(1)(a)(ii), means a mark consisting of the symbol “CE” as described and shown in Schedule 1, and in those regulations means a mark consisting of the symbol “CE”; “effective rated output” expressed in kW, means the maximum calorific output laid down and guaranteed by the manufacturer as being deliverable during continuous operation while complying with the useful efficiency indicated by the manufacturer; “efficiency requirements” means— in relation to a boiler, the useful efficiency requirements specified in Schedule 2 for a boiler of that description; and in relation to an appliance, the useful efficiency requirements specified in Schedule 2 for a boiler of the description of which that appliance is designed to form part; “gas condensing boiler” means a gas fired boiler designed continuously to condense in normal operation a large part of the water vapour contained in the combustion gases; “gas appliances Directive” means Council Directive 90/396/EEC on the approximation of the laws of Member States relating to appliances burning gaseous fuels; “gaseous fuel” means any fuel which is a gas at a temperature of 15oC at a pressure of 1 bar absolute; “harmonised standard” means any standard drawn up under mandate from the Commission in accordance with Directives 83/189/EEC and 88/182/EEC relevant for the purposes of the Directive and of the gas appliances Directive— the reference number of which has been published in the Official Journal of the European Communities; and in respect of which a Member State has published the reference number of a relevant national standard transposing the standard so drawn up; “low temperature boiler” means a boiler which can work continuously with a water supply temperature of 35 to 40OC, possibly producing condensation in certain circumstances, including condensing boilers using liquid fuel; “notified body” means a body approved by the Secretary of State in accordance with regulation 8 to perform the functions of a notified body under these Regulations or by another Member State to perform the functions of a notified body under any legislation of that State implementing the Directive; “part load”, expressed in percentage terms, means the ratio between the effective output of a boiler operating intermittently or at an output lower than the effective rated output and the same effective rated output; “standard boiler” means a boiler for which the average water temperature can be restricted by design; “supply” includes offering to supply, agreeing to supply, exposing for supply and possessing for supply; “useful efficiency”, expressed in percentage terms, means the ratio between the heat output transmitted to the boiler water and the product of the net calorific value at constant fuel pressure and the consumption expressed as a quantity of fuel per unit time. 2 Any word or expression used, but not defined, in these Regulations which is also used in the Directive has, in these Regulations, the meaning it has in the Directive. 3 In these Regulations, unless the context otherwise requires— a any reference to a numbered regulation or Schedule is a reference to the regulation or Schedule in these Regulations which bears that number, and b any reference in a regulation or Schedule to a numbered paragraph is a reference to the paragraph which bears that number in that regulation or Schedule. 4 References in these Regulations to complying with or conforming to the requirements of these Regulations, in relation to acts done within the territory of a Member State other than the United Kingdom, are references to complying with or conforming to the requirements of the legislation of that State implementing the Directive, or, if there is no such legislation, of the Directive. Boilers and appliances to which the Regulations do not apply 3 These Regulations do not apply in respect of boilers and appliances specified in Schedule 3. Supply of boilers 4 1 Subject to the following provisions of these Regulations, no person shall supply or put into service a new boiler which does not satisfy the efficiency requirements. 2 A boiler with a dual function, that of heating premises and also providing sanitary hot water, satisfies the efficiency requirements if those requirements are satisfied in respect of its heating function only. Efficiency requirements for boilers 5 1 Subject to the following provisions of these Regulations and without prejudice to other methods of satisfying the efficiency requirements, a boiler is deemed to satisfy the efficiency requirements if— a it complies with any relevant harmonised standard for boilers; and b it bears the EC mark affixed in a visible, easily legible and indelible manner and is accompanied by an EC declaration of conformity. 2 An EC declaration of conformity, in relation to a series produced boiler, is a declaration by the manufacturer or his authorised representative established in the Community which — a attests to the conformity of the boiler to the requirements of these Regulations, b certifies that the boiler is of a type which has been examined and certified by a notified body in accordance with the procedures specified in Schedule 4, c declares that the manufacturer or such a representative has, in accordance with the requirements specified in Part I, II or III of Schedule 5, ensured that the boiler conforms to that type, and d where the boiler is also subject to one or more Community Directives (other than the Directive) which provide for the affixing of an EC mark and allow the manufacturer during a transitional period to choose which arrangements to apply, specifies in respect of which of those Directives the EC mark, if affixed during that period, indicates conformity. 3 No person shall issue an EC declaration of conformity in respect of a boiler unless the efficiency requirements are satisfied in respect of that boiler. 4 The verification methods for production and measurement of boilers shall be those provided for in the harmonised standards. 5 The procedures for assessing the conformity of the efficiency of boilers burning gaseous fuels with the efficiency requirements are those used to assess the conformity of such boilers with the essential requirements specified in Schedule 3 to the Gas Appliances (Safety) Regulations 1992 . 6 Before 1st January 1995, paragraph (2) shall have effect as if sub-paragraph (d) were omitted. Supply of appliances 6 1 No person shall supply or put into service a new appliance unless it — a bears the EC mark affixed in a visible, easily legible and indelible manner; and b is accompanied by an EC declaration of conformity. 2 An EC declaration of conformity, in relation to an appliance— a attests to the conformity of the appliance to the requirements of these Regulations, b defines the parameters for assembly and use of the appliance which will enable a boiler of which the appliance forms part, in service, to satisfy the efficiency requirements, c certifies that after assembly the resulting boiler will satisfy the efficiency requirements, whether by compliance with the procedures in Schedule 4 and the requirements of Part I, II or III of Schedule 5 or otherwise, and d where the appliance is also subject to one or more Community Directives (other than the Directive) which provide for the affixing of an EC mark and allows the manufacturer during a transitional period to choose which arrangements to apply, specifies in respect of which of those Directives the EC mark, if affixed during that period, indicates conformity 3 No person shall give an EC declaration of conformity in respect of an appliance unless, after assembly, the resulting boiler will satisfy the efficiency requirements. 4 Before 1st January 1995, paragraph (2) shall have effect as if sub-paragraph (d) were omitted. The EC mark 7 1 No person shall affix or cause to be affixed to a boiler or appliance — a an EC mark, where the boiler or appliance does not comply with i the efficiency requirements, or ii any applicable provision of any other Community Directive concerning other aspects which provides for the affixing of an EC mark and to which the boiler or appliance is subject, or b any marking likely to deceive a third party as to the meaning and form of the EC mark, or c any marking which reduces the visibility and legibility of the EC mark. 2 Before 1st January 1995, paragraph (1) shall have effect as if for sub-paragraph (b) there were substituted: “(b) any mark, sign or indication reasonably likely to be confused with the EC mark,” and as if in sub-paragraph (a) i the word “and” and sub-paragraph (a) ii were omitted. Notified bodies 8 1 The Secretary of State may approve a body which meets the requirements in Part I of Schedule 6 to perform the functions conferred on notified bodies by these Regulations, and shall notify the name of any body so approved to the Commission of the European Communities and to other Member States. 2 Any such approval— a may be given for an unlimited period or for a specified period; and b shall be given subject to conditions which meet the requirements in Part II of Schedule 6, and the Secretary of State shall withdraw an approval if the body ceases to satisfy or comply with such a condition or ceases to satisfy the criteria in Schedule 6. 3 A notified body may require a fee to be paid by the manufacturer or his authorised representative in connection with the performance by that body of any function under these Regulations, and in any case the fee shall not exceed the sum of — a the costs of the notified body in connection with the functions carried out or to be carried out by the body under these Regulations; and b an amount on account of profit which is reasonable in the circumstances having regard to — i the nature and extent of the work done or to be done by the notified body in connection with the performance of that function; and ii the commercial rate normally charged in respect of profit for that work or similar work. 4 A body which satisfies the criteria laid down in the corresponding harmonised standards shall be deemed to comply with the criteria specified in Schedule 6. Failure to comply with Regulations: powers of notified bodies 9 1 Where during or after the carrying out of any function under Schedule 4 or 5 the notified body is satisfied that the EC mark has been wrongly affixed to a boiler or appliance, it shall give notice in writing of that fact to the manufacturer or his authorised representative established within the Community. 2 The notice referred to in paragraph (1) shall— a specify the description of boiler or appliance to which the notice relates, and b give details of the failure to comply with the requirements of these Regulations. 3 The notice referred to in paragraph (1) shall require the person to whom it is addressed — a to secure that any boiler or appliance to which the notice relates is altered so that it complies with the requirements of these Regulations, and b to take all appropriate steps to secure that no other such boiler or appliance is put into service unless it complies with the requirements of these Regulations. 4 Where a notified body has served a notice referred to in paragraph (1), it may include within the notice a statement that unless, within a specified period, steps are taken to ensure compliance with the requirements of these Regulations of any appliance or boiler to which the notice relates — a any EC type-examination certificate issued under Schedule 4, b any decision by a notified body that the requirements of Parts II and III of Schedule 5 are met, or c any approval of a quality system given in accordance with Parts II and III of Schedule 5, will be suspended from the date specified in the notice. 5 A notice under this regulation shall give reasons for any decision conveyed in it. 6 Where a notice referred to in paragraph (1) has been given and any period referred to in that notice has elapsed, no person shall supply a boiler or appliance of the description to which the notice relates unless compliance with the requirements of these Regulations has been secured. Optional marking of products to indicate energy performance 10 1 The manufacturer of a boiler or his authorised representative may label a new boiler as provided for in Schedule 7, and any such label shall be affixed in a visible, easily legible and indelible manner. 2 No person shall affix or cause to be affixed to a boiler a label provided for in paragraph (1) except in accordance with the requirements of Schedule 7. 3 No person shall affix or cause to be affixed to a boiler a label reasonably likely to be confused with a label provided for in paragraph (1). Requirement to keep information about boilers etc 11 1 The manufacturer of a boiler or appliance or his authorised representative shall for a period of 10 years from the last date of manufacture of that boiler or appliance keep at the disposal of the Secretary of State in respect of that boiler or appliance — a the technical documents specified in paragraph 3 of Schedule 4 which accompanied his application to a notified body; b a copy of any EC type-examination certificate issued by a notified body in accordance with Schedule 4, and any addition to such a certificate; c a copy of any declaration of conformity given by a manufacturer in accordance with Part I of Schedule 5; d a copy of any document concerning the quality system lodged with a notified body in accordance with paragraph 6(1) or 10(1) of Schedule 5; e a copy of any notification given to a notified body in accordance with paragraph 6(9) or 11(7) of Schedule 5 informing that body of a proposed change in the quality system; f a copy of any decision regarding a proposed change to the quality system notified by the notified body to the manufacturer in accordance with paragraph 6(11) or 11(9) of Schedule 5; g a copy of any report of an audit carried out by the notified body in accordance with paragraph 7(3) or 12(3) of Schedule 5; h a copy of any report of a visit or test provided by a notified body in accordance with paragraph 7(4) or 12(4) of Schedule 5. 2 Where neither the manufacturer nor his authorised representative is established within the Community, the obligation to keep the documents referred to in paragraph (1)(a) is the responsibility of the person who places the product on the market. Enforcement 12 It shall be the duty of— a a weights and measures authority, in England, b a county council, in Wales, c an islands or regional council, in Scotland, d the Department of Economic Development in Northern Ireland, to enforce these Regulations in their area. Offences and penalties 13 1 It shall be an offence triable summarily to contravene regulation 4(1), 5(3), 6(1) or (3), 7(1)(a), (b) or (c), 9(6), 10(2) or (3) or 11(1). 2 A person guilty of an offence under this regulation shall be liable on conviction, in the case of a contravention of regulation 11(1), to a fine not exceeding level 3 on the standard scale and in Northern Ireland to a fine not exceeding £400, and, in the case of a contravention of any other provision specified in paragraph (1), to a fine not exceeding level 5 on the standard scale and in Northern Ireland to a fine not exceeding £2000. Defences. 14 1 In any proceedings against any person for the offence of contravening regulation 4(1), 6(1) or 9(6), it shall be a defence for that person to show that — a he reasonably believed that the boiler or appliance would not be put into service in the Community; or b at the time the boiler or appliance was supplied or put into service he neither knew or had reasonable grounds for believing that the efficiency requirements were not satisfied by the boiler or appliance in question; or c the terms on which the boiler or appliance was supplied or put into service indicated that it was not supplied or to be supplied as new. 2 Subject to paragraphs (3) to (5), in proceedings against a person for an offence under regulation 13 it shall be a defence for a person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence. 3 Where in any proceedings against any person for such an offence the defence provided by paragraph (2) involves an allegation that the commission of the offence was due — a to the act or default of another; or b to reliance on information given by another, that person shall not, without leave of the court, be entitled to rely on the defence unless, not less than seven clear days before the hearing of the proceedings, he has served a notice under paragraph (4) on the person bringing the proceedings. 4 A person serving a notice under this paragraph shall give such information identifying or assisting in the identification of the person who is alleged to have committed the act or default or to have given the information as is in the possession of the person serving the notice at the time he serves it. 5 A person shall not be entitled to rely on the defence provided by paragraph (2) 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 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. Liability of a person other than principal offender 15 1 Where the commission by any person of an offence under regulation 13 is due to an act or default committed by some other person in the course of any business of that other person, the other person shall be guilty of the offence and may be proceeded against and punished by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person. 2 Where a body corporate is guilty of an offence under regulation 13 (including where it is so guilty by virtue of paragraph (1)) in respect of any act or default which is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 3 Where the affairs of a body corporate are managed by its members, paragraph (2) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate. 4 In Scotland, where a partnership is guilty of an offence under regulation 13 (including where it is so guilty by virtue of paragraph (1)) in respect of any act or default which is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner in the partnership, he, as well as the partnership, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Transitional provisions 16 Nothing in these Regulations shall prevent the supply or putting into service before 1st January 1998 of boilers or appliances which comply with national rules and schemes in force within the United Kingdom on 21st May 1992. John Selwyn Gummer 9th December 1993The Secretary of State for the Environment