S.I. No. 202/1990 - European Communities (Roll Over and Falling Object Protective Structures For Construction Plant) Regulations, 1990.

S.I. No. 202 of 1990.

EUROPEAN COMMUNITIES (ROLL OVER AND FALLING OBJECT PROTECTIVE STRUCTURES FOR CONSTRUCTION PLANT) REGULATIONS, 1990.

I, DESMOND O' MALLEY, Minister for Industry and Commerce, 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 effect to Council Directive 84/532/EEC of 17 September 1984⁽¹⁾ (insofar as it relates to EEC protective structures). Council Direction 86/295/EEC of 26 May, 1986⁽²⁾ and Council Directive 86/296/EEC of 26 May, 1986,⁽³⁾ hereby make the following Regulations:

⁽¹⁾OJ. No. L 300 of 19.11.84, p. 111

⁽²⁾OJ. No. L 186 of 8.7.86, p. 1.

⁽³⁾OJ. No. L 186 of 8.7.86, p. 10.

1. (1) These Regulations may be cited as the European Communities (Roll over and Falling Object Protective Structures for Construction Plant) Regulations, 1990.

(2) These Regulations shall come into operation on the 1st day of September, 1990.

2. (1) In these Regulations—

"the Directives" means Directive 532 (insofar as it relates to EEC protective structures), Directive 295 and Directive 296;

"Directive 532" means Council Directive 84/532/EEC of 17 September, 1984;

"Directive 295" means Council Directive 86/295/EEC of 26 May, 1986;

"Directive 296" means Council Directive 86/296/EEC of 26 May, 1986;

"EEC (roll over) protective structures" means the roll-over protective structures referred to in Directive 295 as EEC protective structures;

"EEC (falling object) protective structures" means the falling-object protective structures referred to in Directive 296 as EEC protective structures;

"EEC protective structures" means EEC (roll over) protective structures and EEC (falling object) protective structures;

"Eolas" means Eolas — The Irish Science and Technology Agency;

"The Minister" means the Minister for Industry and Commerce.

(2) A word or expression that is used in these Regulations and is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directives.

3. (1) Construction plant referred to in Article 1 of Directive 295 shall not be placed on the market unless it is fitted with suitable EEC (roll-over) protective structures.

(2) ( a ) Construction plant referred to in Article 1 of Directive 296 shall not be placed on the market unless it is designed to be fitted with an EEC (falling object) protective structure,

( b ) Without prejudice to the generality of subparagraph (a) of this paragraph, the plant aforesaid shall be considered to be designed to be fitted with an EEC (falling object) protective structure if it is provided with an EEC (roll over) protective structure to which an EEC (falling object) protective structure can be fitted.

(3) An EEC (falling object) protective structure shall not be placed on the market unless it complies with Directive 296.

(4) Where there is a contravention of this Regulation, the manufacturer or importer into the State and any other person who sells, offers for sale or invites offers to buy the plant or structure concerned shall be guilty of an offence.

4. (1) Eolas is hereby appointed to be the approved body for the purpose of the Directives.

(2) ( a ) Subject to subparagraph (b) of this paragraph, EEC type-examinations shall, following applications therefor made in accordance with Directive 532 and with Directive 295 or Directive 296, as may be appropriate, be carried out by Eolas for the purposes of the Directives and shall be so carried out in accordance with the Directives.

( b ) The examinations aforesaid may be carried out in the laboratory of the manufacturer concerned under the supervision of Eolas.

(3) For each type of EEC protective structures that has undergone in the State the tests and examinations provided for in Annex I to Directive 295 or, as may be appropriate, Annex I to Directive 296, Eolas—

( a ) shall draw up a test report in the form set out in Annex III to Directive 295 or, as may be appropriate, Annex III to Directive 296, and

( b ) shall grant to the manufacturer concerned or his authorised representative established in the Community an EEC type-examination certificate in respect of the type if, but only if it is satisfied that it complies with the provisions of Directive 295 or Directive 296, as may be appropriate.

(4) Eolas shall give a copy of part A (as set out in Annex III of Directive 295 or, as may be appropriate, Annex III of Directive 296) of a test report referred to in paragraph (3) of this Regulation and, where appropriate, a copy of part B (as so set out) of such a report only to a Member State and the Commission and following a duly substantiated request therefore.

(5) An EEC type examination certificate referred to in the said paragraph (3) shall be in the form specified in Annex V to Directive 295 or Annex V to Directive 296, as may be appropriate.

(6) ( a ) A person who applies under this Regulation to Eolas for the grant of an EEC type-examination certificate shall pay to Eolas a fee of such amount specified by Eolas as Eolas considers to be equal to the amount of the costs incurred by it in relation to the application and the grant or refusal to grant the certificate.

( b ) A fee payable to Eolas under this section may be recovered by it from the person who made the application concerned as a simple contract debt in any court of competent jurisdiction.

5. (1) Where a person proposes to commence the production or importation into the State of EEC protective structures for which an EEC type examination certificate has been granted, he or his authorised representative established in the Community shall inform the approved body that issued the EEC type-examination certificate concerned of—

( a ) the place of manufacture or warehousing (or both) of the structure within the Community, and

( b ) the date on which it is proposed to commence production or the importation into the State (or both) of the structure.

(2) A person who contravenes this Regulation shall be guilty of an offence.

6. (1) As respects EEC protective structures of any type that are being manufactured—

( a ) if the relevant EEC type-examination certificate was granted by Eolas, Eolas shall, if so directed by the Minister, carry out, or cause to be carried out on its behalf by one or more laboratories, spot checks to determine whether the structures conform to the type for which it issued the certificate and whether the checks specified in subparagraph (b) of this paragraph are being carried out on the structures, and

( b ) the holder of the certificate aforesaid (whether or not he is the manufacturer of the structures) shall arrange for the production of the structures to be checked so as to verify on a continuous and adequate basis that the structures conform to the type to which the said certificate relates as regards the materials used and the quality of workmanship.

(2) Where EEC protective structures are being manufactured or warehoused outside the State but in a Member State and the relevant EEC type-examination certificate was issued by Eolas, Eolas may collaborate, in relation to the relevant checks under Article 6 of Directive 295 or Article 6 of the Directive 296, as may be appropriate, with the approved body in that Member State.

(3) Eolas may request and select a sample of the protective structures concerned for the purpose of the spot check aforesaid, but Eolas shall perform a second spot check in accordance with Annex I of Directive 295 or Annex I of Directive 296, as may be appropriate, involving the destruction of the EEC protective structure concerned and the chassis concerned only if there are reasonable grounds for assuming that the structure does not comply with the performance requirements for the type concerned.

(4) Eolas may arrange to have any checks, tests or examinations that it is authorised under this Regulation or otherwise under these Regulations or under the Directives to perform performed by one or more laboratories.

7. (1) Any person aggrieved by a decision of Eolas in relation to the grant, suspension or withdrawal of an EEC type-examination certificate under these Regulations may, by notice in writing given to the Minister not later than 14 days after the receipt by the person from Eolas of notification of the decision, appeal to the Minister against the decision and the Minister, having considered any submissions made to him by the person, Eolas and any other interested parties and the report of any inquiry held under paragraph (2) of this Regulation in relation to the appeal or of any assessor appointed under paragraph (3) in relation thereto, may uphold, vary or reverse the decision of Eolas.

(2) The Minister may appoint an officer of the Minister to hold an inquiry in connection with an appeal under this section and to make a report to the Minister on the findings and result of the inquiry.

(3) The Minister may appoint an assessor to assist the Minister, and to make a report to him, in relation to an appeal under this Regulation or to assist an officer of the Minister in relation to an inquiry being held by him under paragraph (2) of this Regulation.

8. (1) Where, following the carrying out of checks specified in Regulation 6 of these Regulations, Eolas is satisfied that EEC protective structures for which the EEC type-examination certificates concerned was granted by Eolas do not conform to the type for which the certificate was granted or that a provision of the Directives or these Regulations has not been complied with in relation to the structures, Eolas shall—

( a ) if the non-conformity or non-compliance does not affect the basic design of the structures or is of a minor nature and does not impair safety—

(i) warn the manufacturer of the structures of the non-conformity or non-compliance and request him to ensure that such non-compliance ceases within a specified period, or

(ii) warn the manufacturer of the structures as aforesaid and carry out or arrange for the carrying out of additional such checks as aforesaid,

and

( b ) if the non-conformity or non-compliance is substantial or represents a safety hazard, withdraw or suspend for a specified period the EEC type-examination certificate.

(2) If Eolas suspends or withdraws an EEC type-examination certificate, it shall notify the other approved bodies and the other Member States of such action as soon as may be.

9. (1) In this Regulation "authorised officer" means

( a ) an officer of the Minister authorised in writing by the Minister, or

( b ) an officer of Eolas authorised in writing by Eolas,

to exercise, for the purposes of these Regulations and the Directives, the powers conferred by this Regulation.

(2) An authorised officer may, on production of his authorisation if so requested by any person affected—

( a ) at all reasonable times enter premises where he reasonably believes that EEC protective structures or construction plant referred to in Article 1 of Directive 295 or Article 1 of Directive 296 are being manufactured or stores or that it is proposed to commence such manufacture and inspect, examine and check such structures or plant in the premises or being manufactured in the premises,

( d ) direct any person on the premises to give to the officer such information as he may reasonably require for the purposes of these Regulations and the Directives,

( c ) take possession of and remove from the premises for examination and checking by the Minister or Eolas, as the case may be, an EEC protective structure (including such a structure in a partly manufactured state), and

( d ) if an EEC type-examination certificate has been granted in respect of a structure examined and checked pursuant to subparagraph (c) of this paragraph and there are reasonable grounds for assuming that it does not comply with the performance requirements for the type to which the certificate relates, carry out a test in accordance with Annex I of Directive 295 or, as the case may be, Annex I Directive 296 involving destroying the structure and possibly the chassis.

10. A representative of an approved body in another Member State duly authorised in writing in that behalf by the approved body and accompanied by an authorised officer may, for the purpose of these Regulations and the Directives, on production, if so requested by any person affected, of his authorisation authenticated by an officer of the Minister duly authorised in that behalf, enter any premises where he reasonably believes that EEC protective structures of a type for which the approved body has issued an EEC type-examination certificate are being manufactured or stored or that it is proposed to commence such manufacture and there exercise any of the powers specified in subparagraph (b) to (d) of Regulation 9 (2) of these Regulations.

11. If a person obstructs or interferes with an authorised officer (within the meaning of Regulation 9 of these Regulations) or a representative of an approved body in another member State in the performance of his functions under these Regulations or fails or refuses to comply with a direction of such an officer or representative under Regulation 9 or 10 of these Regulations, the person shall be guilty of an offence.

12. (1) A person guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 3 months or to both.

(2) Where an offence under these Regulations has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person, being a director, manager, secretary or other officer of that body corporate, or a person who was purporting to act in any such capacity, that person shall also be guilty of an offence and shall be liable to be proceeded against and punished as if he was guilty of the first-mentioned offence.

(3) An offence under these Regulations may be brought and prosecuted by the Minister.

(4) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under this Act may be instituted within one year from the date of the offence.

GIVEN under my Official Seal, this 1st day of August, 1990.

DESMOND O'MALLEY,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

The purpose of these Regulations is to give legal effect to EC Directives on the approximation of the laws of the Member States relating to roll-over protective structures and falling-object protective structures for certain construction plant i.e. crawler loaders and wheel loaders, crawlers tractors and wheel tractors, graders and tractor scrapers.

The Regulations come into effect on the 1st day of September 1990. The Regulations prohibit from that date the placing on the market of construction plant covered by the Regulations unless (a) it is fitted with a suitable roll-over protective structure, which complies with the EC Directive and is of a type which has satisfied EC type-examination requirements, and (b) is designed to be fitted with an EEC falling-object protective structure. The Regulations also prohibit the placing on the market of a falling-object protective structure for such plant unless it complies with the EC Directive.

The Regulations also provide for the appointment of Eolas as an Approved Body with powers to test protective structures in accordance with the Directives, issue type-examination certificates, carry out periodic checks on production and in certain circumstances withdraw or suspend the EEC type-examination certificate. The Regulations also provide for a review by the Minister, at the request of an aggrieved person, of a decision by Eolas in relation to the grant, suspension or withdrawal of a EEC type-examination certificate. Persons proposing to manufacture or import the protective structures into the State are required to inform the approved body that issued the type-examination certificate of the place of manufacture or warehousing as well as the commencement date.