HEALTH AND SAFETY Citation, commencement and extent 1 These Regulations, which extend to Great Britain, may be cited as the Self-Propelled Industrial Trucks (EEC Requirements) Regulations 1988, and shall come into force on 2nd November 1988. Interpretation 2 1 In these Regulations, unless the context otherwise requires, the following expressions have the following meanings: “approved body” means a body appointed by the Secretary of State under regulation 4; “certificate of conformity” means a certificate that the truck specified in the certificate conforms in all respects to the requirements of the Special Directive; “conformity mark” means the mark of conformity referred to in regulation 7; “EEC technical requirements” means the technical requirements referred to in Annex I of the Special Directive; “EEC tests” means the tests and inspections for trucks in Annex I of the Special Directive; “the Framework Directive” means the Directive adopted by the Council of the Communities concerning the approximation of the laws of the member States relating to common provisions for certain lifting and mechanical handling appliances ; “manufacturer” means the manufacturer or his authorised representative established in the Community; “market” means supply by way of sale, lease, hire or hire-purchase, whether as principal or agent for another; “the Special Directive” means the Directive adopted by the Council of the Communities concerning the approximation of the laws of the member States relating to certain self-propelled industrial trucks ; “truck” means a self-propelled industrial truck, that is, any wheeled vehicle, other than those running on rails, the capacity of which does not exceed 10,000 kilograms, or which in the case of tractors has a draw-bar pull of less than 20,000 newtons, that is designed to carry, tow, push, lift, stack or tier in racks any kind of load and is controlled by an operator who either walks with the vehicle or rides on a specially arranged driving platform which is either fixed to the chassis of the vehicle or can be raised, but excluding those vehicles specified in Schedule 1; 2 Any reference in these Regulations to a numbered regulation or Schedule is a reference to the regulation or Schedule so numbered in these Regulations. Marketing of trucks 3 1 No person shall on or after 1st January 1989 market any truck manufactured on or after that date unless a certificate of conformity has been issued in respect of that truck and a conformity mark has been placed thereon in accordance with these Regulations or under the law of Northern Ireland or of a member State other than the United Kingdom. 2 Where a person (“the ostensible supplier”) markets any truck by supplying the same to another (“the customer”) under a hire-purchase agreement, conditional sale agreement or credit sale agreement, and the ostensible supplier:— a carries on the business of financing the acquisition of goods by others by means of such agreements; and b in the course of that business acquired his interest in the truck supplied to the customer as a means of financing its acquisition by the customer from a third person (“the effective supplier”) the effective supplier and not the ostensible supplier shall be treated for the purpose of this regulation as marketing the truck to the customer and any duty imposed by these Regulations on those who market any truck shall accordingly fall on the effective supplier and not on the ostensible supplier. 3 Where a person (“the ostensible supplier”) markets any truck by supplying the same to another (“the customer”) under a lease, and the ostensible supplier— a has not previously granted any lease to the customer in respect of that truck; and b carries on the business of financing the use of goods by others by means of leases; and c in the course of that business acquired his interest in the truck supplied to the customer for the purpose of financing its provision to the customer by a third person (“the effective supplier”) and d he or his agent either i has not had physical possession of the truck; or ii has had physical possession of the truck only for the purpose of passing it to the customer; and e he or his agent has not modified, overhauled, repaired or restored the truck; then the effective supplier and not the ostensible supplier shall be treated for the purposes of this regulation as marketing the truck to the customer and any duty imposed by these Regulations on those who market any truck shall accordingly fall on the effective supplier and not on the ostensible supplier. 4 Where— a paragraph (3) of this regulation has applied in respect of a lease; and b the ostensible supplier grants a further lease of the truck to the same customer; and c the truck has remained in the physical possession of the customer since he took possession of it under the first lease; and d the truck has not at any time been modified, overhauled, repaired or restored by or on behalf of the ostensible supplier; then no duty shall be imposed by these Regulations on the ostensible supplier in relation to the supply by way of that further lease. Appointment of approved bodies 4 The Secretary of State shall appoint a body or bodies of persons in accordance with the conditions of the Framework Directive and subject to such conditions as he shall think fit— a to carry out in accordance with regulation 6 EEC tests on any truck; and b to do such other things as may be required or permitted under or in connection with these Regulations. EEC Tests 5 EEC tests shall be carried out— a by the manufacturer to the extent that he satisfies the Secretary of State that he possesses the necessary means to enable him to do so; or b by an approved body on application by the manufacturer under regulation 6. Testing by approved body 6 1 A manufacturer may make an application in writing to an approved body requesting the approved body to carry out on payment of the prescribed fee such of the EEC tests as the applicant may specify, accompanied by an information document in the form set out in Schedule 2. 2 Where the approved body is satisfied on application made to it under paragraph (1) above and after carrying out the EEC tests in respect of which the application was made that the results of any of those tests do not satisfy the requirements of Annex I of the Special Directive in respect of those tests it shall so inform the applicant in writing stating its reasons and also inform him of his right to apply for a review of the decision under regulation 9. 3 The prescribed fee payable under paragraph (1) above shall be equal to the sum of:— a the costs of the approved body of and in connection with the functions carried out or to be carried out by it under these Regulations (“the relevant service”); and b an amount on account of profit which is reasonable in the circumstances having regard to— i the character and the extent of the work done or to be done by the approved body in providing the relevant service, and ii the commercial rate normally charged on account of profit for that work or similar work. Certificate of conformity and conformity mark 7 Where a manufacturer is satisfied that a truck conforms in all respects to the requirements of the Special Directive he shall issue a certificate of conformity in the form set out in Schedule 3 that such truck does so conform and shall place on the truck a clearly visible, legible and indelible conformity mark in the form set out in Schedule 4. Conformity checks 8 1 The Secretary of State may from time to time carry out in Great Britain checks of any truck in respect of which a certificate of conformity has been issued under these Regulations or under the law of Northern Ireland or of a member State other than the United Kingdom to ascertain whether it has been manufactured to conform in all respects with the requirements of the Special Directive. 2 For the purpose of assisting the Secretary of State to carry out such checks every manufacturer shall in respect of each truck for which he issues a certificate of conformity retain from the date of issue of that certificate proper records, including documentary evidence showing the EEC tests that have been carried out in respect of that truck or any truck of the same type and that the EEC technical requirements have been complied with, and shall produce them to the Secretary of State on request. 3 If the Secretary of State, after checking a truck under paragraph (1) above, is satisfied that it has not been manufactured in conformity with the requirements of the Special Directive or that proper records have not been kept in accordance with paragraph (2) above, he may give notice to the manufacturer specifying the matters mentioned in paragraph (5) of this regulation. 4 If the Secretary of State is notified that a truck in respect of which a certificate of conformity has been issued has not been manufactured in conformity with the requirements of the Special Directive or that proper records have not been kept in accordance with paragraph (2) above, he may give notice to the manufacturer specifying the matters mentioned in paragraph (5) of this regulation. 5 The following matters shall be specified in a notice given under paragraph (3) or (4) of this regulation— a the respects in which a truck does not conform with the requirements of the Special Directive, or in which proper records have not been kept; and either b that unless steps are taken which ensure that the truck or any truck of the same type does so conform or that proper records are kept within a specified period any such truck shall not be marketed, or as the case may be shall be withdrawn from the market, and the obligation under regulation 7 to issue further certificates of conformity with respect to that truck or any truck of the same type and to place conformity marks thereon will be suspended or withdrawn; or c if the Secretary of State thinks fit, that any such truck shall not be marketed, or as the case may be shall be withdrawn from the market, or that any such obligation shall be suspended, with immediate effect. 6 If the Secretary of State decides that a truck shall not be marketed, or as the case may be shall be withdrawn from the market, or that any such obligation should be suspended or withdrawn he shall immediately give notice of the decision to the manufacturer. 7 A notice under this regulation shall specify the date on which it is to take effect and shall specify the grounds for the decision. Review 9 1 A person who is aggrieved by a decision given by an approved body under regulation 6(2) may, in accordance with paragraphs (2) and (3) of this regulation, apply to the Secretary of State to review the decision and on such application the Secretary of State— a shall have the like powers and duties as an approved body has on an application to carry out EEC tests under regulation 6; b may hold an inquiry in connection therewith, and c may appoint an assessor for the purpose of assisting him with his review or any such inquiry. 2 An application under paragraph (1) of this regulation shall be made by notice to the Secretary of State, and shall be lodged with him not later than twenty one days from the date of the decision in respect of which the application for review is made. 3 A notice of application for review under this regulation shall state the grounds on which the application is made and shall be accompanied by a copy of the application made under regulation 6(1) and of the accompanying information document, and the notification of the reasons given by the approved body under regulation 6(2). Offences 10 1 Subject to the following provisions of this regulation, any person who without reasonable excuse contravenes or fails to comply with any of the provisions of regulation 3(1), or issues a certificate of conformity under regulation 7 in respect of a truck which does not conform with the requirements of the Special Directive, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding £2000. 2 Where the commission by any person of an offence under regulation 3(1) or 7 is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this regulation whether or not proceedings are taken against the first-mentioned person. 3 In any proceedings against a person for an offence under any of the relevant statutory provisions (as defined in section 53(1) of the Health and Safety at Work etc. Act 1974 (“ the Act ”)) having effect on the date on which these Regulations are made which impose specific requirements in respect of any matter to which these Regulations apply it shall be a defence for that person to show that the requirements of these Regulations were satisfied in relation to that matter. 4 Where pursuant to section 24 of the Act a person appeals to an industrial tribunal against a notice, as defined in that section, which has been served on him in relation to a truck the industrial tribunal shall on such an appeal cancel that notice if the person on whom it was served can show that the requirements of these Regulations were satisfied in relation to the matters contained in that notice. Offences by corporations 11 1 Where an offence under these Regulations committed by a body corporate is proved 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 purporting to act in any such capacity, he as well as the body corporate shall be deemed guilty of the offence. 2 Where the affairs of a body corporate are managed by its members, paragraph (1) of this regulation 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. Francis Maude Parliamentary Under Secretary of State, Department of Trade and Industry 7th October 1988