S.I. No. 260/1994 - European Communities (Efficiency Requirements For New Hot Water Boilers Fired With Liquid Or Gaseous Fuels) Regulations, 1994.

S.I. No. 260 of 1994.

EUROPEAN COMMUNITIES (EFFICIENCY REQUIREMENTS FOR NEW HOT WATER BOILERS FIRED WITH LIQUID OR GASEOUS FUELS) REGULATIONS, 1994.

I, BRIAN COWEN, Minister for Transport, Energy and Communications, 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 92/42/EEC of 21 May, 1992⁽¹⁾, hereby make the following Regulations:

⁽¹⁾ OJ No. L 167, 22.6.92, P.17.

1 Citation and Commencement.

1. These Regulations may be cited as the European Communities (efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels) Regulations, 1994, and shall come into operation on 1st day of August, 1994.

2 Interpretation.

2. (1) In these Regulations:

"appliance" means a boiler body designed to have a burner fitted or a burner designed to be fitted to a boiler body;

"applicable national standard" means a national standard of any Member State incorporating the harmonised standards whose reference numbers have been published in the Official Journal of the European Communities;

"appropriate fee" means the fee referred to in Regulation 7;

"approved type" means a type of boiler which is representative of a boiler which is to be produced in a series and which has been approved by a notified body after carrying out an EC type-examination in respect of the boiler;

"authorised officer" has the meaning assigned to it by Regulation 17;

"average temperature of the boiler water" means the average of the water temperatures at the entry and exit of the boiler;

"back boiler" means a boiler designed to supply a central-heating system and to be installed in a fireplace recess as part of a back boiler/gas fire combination;

"boiler" means a combined boiler body-burner unit, designed to transmit to water the heat released from burning;

"boiler to be installed in the living space" means a boiler with an effective rated output of less than 37 kW, designed to provide heat to the part of the living space in which it is installed by means of the emission of heat from the casing having an open expansion chamber, supplying hot water using gravity circulation; such boilers shall bear on their casings the explicit indication that they must be installed in living spaces;

"the Commission" means the Commission of the European Communities;

"the Directive" means Council Directive 92/42/EEC of 21 May 1992⁽¹⁾ on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels;

⁽¹⁾ O.J No. L 167, 22.6.92, P.17.

"EC" mark" means the conformity mark specified in Paragraph 1 of Annex I of the Directive;

"the efficiency requirements" has the meaning referred to in Regulation 5;

"gas condensing boiler" means a boiler designed to condense permanently a large part of the water vapour contained in the combustion gases;

"gaseous fuel" means any fuel which is in a gaseous state at a temperature of 15 degrees Celsius under a pressure of 1 bar;

"low-temperature boiler" means a boiler which can work continuously with a water supply temperature of 35 to 40 degrees Celsius, possibly producing condensation in certain circumstances, including condensing boilers using liquid fuel;

"Member State" means a Member State of the European Communities;

"the Minister" means the Minister for Transport, Energy and Communications;

"notified body" means—

( a ) a notified body in the State, or

( b ) a body appointed by a Member State (other than the State) to exercise the functions, specified in the Directive, of a notified body referred to in Article 8 of and Annex V to the Directive;

"notified body in the State" shall be construed in accordance with Regulation 6 (1);

"part-load," which is expressed in percentage terms, means the ratio between the output of a boiler operating intermittently or at an output lower than the rated output and the same rated output;

"place on the market" means supply, sell, offer for sale, expose for sale or have in possession for sale, or place on the market under a rental agreement, lease agreement, hire purchase agreement or any other type of agreement;

"put into service" means install as part of, or connect into, a heating installation;

"rated output" expressed in kW means the maximum calorfic output laid down and guaranteed by the manufacturer as being deliverable during continuous operation while complying with the useful efficiency indicated by the manufacturer;

"standard boiler" means a boiler for which the average water temperature can be restricted by design;

"useful efficiency" means the ratio, expressed in percentage terms, 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) 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 Directive.

(3) In these Regulations:

( a ) a reference to a Regulation is to a Regulation of these Regulations;

( b ) a reference to a paragraph is to the paragraph of the Regulation in which the reference occurs.

3 Application of Regulations.

3. (1) These Regulations shall apply to boilers or appliances fired by liquid or gaseous fuels with a rated output of no less than 4 kW and no more than 400 kW to which the Directive applies.

(2) These Regulations shall not apply to those boilers, equipment or appliances exempted by Article 3 (1) of the Directive.

(3) In the case of boilers with the dual function as defined in Article 3 (2) of the Directive, these Regulations shall apply to the heating function only.

(4) These Regulations shall not apply until 31 December, 1997, to the placing on the market and putting into service of boilers which comply with any Irish Standard which was in force on or before 21 May, 1992, and relates to the energy efficiency of hot-water boilers fired with liquid or gaseous fuels.

4 Obligations on Suppliers and Installers of Boilers.

4. (1) A person shall not, on or after the 1st day of August, 1994, place on the market or put into service a new boiler unless it satisfies the efficiency requirements applicable to it as set out in Regulation 5.

(2) Without prejudice to the provisions of paragraph (1), a person may place on the market or put into service a back boiler or a boiler to be installed in a living space, provided that their useful efficiency both at rated output and at 30 per cent part load is not more than 4 per cent below the requirements applicable to standard boilers as set out in Regulation 5.

5 Useful Efficiency Requirements

5. (1) Boilers shall comply with the useful efficiency requirements set out in the Table to paragraph (2) at both:

( a ) rated output, i.e. operating at rated output Pn expressed in kW, at an average boiler-water temperature of 70 degrees Celsius, and

( b ) a part load, i.e. operating at 30 per cent part load, at an average boiler-water temperature which varies as shown in column (4) of the Table according to the category of boiler specified in column (1) of the Table.

(2) The useful efficiency requirements to be complied with by the category of boiler specified in Column (1) of the Table to this paragraph at a reference number shall be both requirements set out in columns (3) and (4) opposite that reference number.

(*) Including condensing boilers using liquid fuels

(**) Temperature of boiler water-supply

In the above Schedule

">" means "equal to or greater than"

"Pn" means the rated output expressed in kW (kilowatts)

"log" means logarithm to the base 10

(3) Any boiler which complies with the applicable national standard within the meaning of these regulations or with an approved type for which an EC type-examination certificate has been issued by a notified body shall be deemed to be in conformity with the essential efficiency requirements stipulated in paragraph (1) and such boiler must bear the EC mark and be accompanied by an EC declaration of conformity.

6 Appointment of Notified Bodies in the State

6. (1) The Minister may appoint one or more persons to exercise in the State (whether individually or, where more than one person is so appointed and the Minister so directs, together with one or more of the other persons so appointed) the functions, specified in the Directive, of bodies referred to as "notified bodies" in Article 8 of and Annex V to the Directive.

(2) References in these Regulations to a notified body in the State shall be construed as references to each person so appointed or, as the case may be, to such of the persons so appointed as are subject to the specified direction.

(3) In making an appointment under paragraph (1), the Minister shall take into acount the minimum criteria set out in Annex V to the Directive regarding the approval of notified bodies for the efficient and proper functioning of a notified body in the State and the Minister may, in making such an appointment, attach, from time to time, such conditions thereto as he thinks fit.

(4) An appointment under paragraph (1)—

( a ) may be for a fixed or indefinite time,

( b ) may be revoked by the Minister at any time, and

( c ) shall be revoked by the Minister if he has reason to believe that the notified body in the State does not meet the criteria referred to in paragraph (3).

(5) The Minister may amend or revoke any or all of the conditions (if any) attached under paragraph (3) to an appointment under paragraph (1) or attach additional conditions from time to time to such appointment for the efficient and proper functioning of the body in question.

7 Fees

7. (1) A notified body in the State may charge a fee (in these Regulations referred to as the "appropriate fee") which shall be equal to the amount which the body estimates it will incur in, or in connection with, carrying out or causing to be carried out the functions referred to in these Regulations in respect of the application concerned.

(2) Where the costs incurred are greater than the appropriate fee, the difference between those costs and that fee shall be payable by the manufacturer or his authorised representative to the notified body in the State, and where those costs are less than the appropriate fee, the difference between the costs and that fee shall be repayable by the notified body to the manufacturer or his authorised representative, as the case may be.

8 Granting of EC type-examination certificate for boilers.

8. (1) On an application for an EC type-examination certificate in respect of a boiler being made in accordance with Annex III to the Directive being made in that behalf and, on receipt of the appropriate fee, a notified body in the State shall carry out, or cause to be carried out, on its behalf such examinations, tests and checks as are required for EC type-examination under the Directive.

(2) If the notified body in the State, after carrying out or causing to be carried out the examinations, tests and checks in accordance with the procedures laid down by Annex III to the Directive decides that the boiler type submitted to it for the purposes of the type-examination complies with the provisions of the Directive applicable to it, it shall issue to the applicant an EC type-examination certificate in the form specified in the Directive.

(3) The applicant shall inform the notified body that holds the technical documents concerning the EC type-examination certificate of all modifications to the approved boiler which must receive additional approval where such changes may affect the conformity with the essential requirements or the prescribed conditions for use of the product. Such additional approval shall be given in the form of an addition to the original EC type-examination certificate.

(4) A manufacturer or his authorised representative established within the Community shall keep with the technical documents which he is obliged to keep by virtue of the Directive, copies of EC type-examination certificates of boilers to which these Regulations apply and any additions or amendments thereto for a period of, at least, 10 years after the last date of manufacture of the product concerned.

(5) Where neither the manufacturer nor his authorised representative is established within the Community, the obligation to keep the technical documents available shall be the responsibility of the person who places the product on the Community market.

(6) Where an applicant has been unsuccessful in an application to a notified body, he may, on notice to the notified body, apply to the Circuit Court for an order to compel the notified body to issue an EC type-examination certificate and the Court may order the notified body to grant such a certificate if it is satisfied that such a certificate should be granted.

9 EC Declaration of Conformity for Boilers.

9. (1) The conformity of series-produced boilers shall be certified by an examination of the efficiency of a boiler type in accordance with Module B of Annex III to the Directive and a written declaration of conformity to the approved type in accordance with Module C, D or E of Annex IV to the Directive.

(2) For boilers burning gaseous fuels, the procedures for assessing the conformity of their efficiency shall be those used to assess conformity to the safety requirements laid down in the European Communities (Appliances Burning Gaseous Fuels) Regulations, 1992 ( S.I. No. 101 of 1992 ).

(3) Where appliances marketed separately are placed on the market, the manufacturer or his authorised representative within the Community shall ensure that they bear the EC mark and be accompanied by the EC declaration of conformity, which defines the parameters enabling them after assembly to achieve the useful efficiency requirements laid down in Regulation 5.

(4) Where a declaration of conformity is drawn up to the approved type in accordance with Module C of Annex IV to the Directive, the manufacturer or his representative shall keep a copy of the declaration of conformity for a period of at least 10 years after the last date of manufacture of the product concerned.

(5) Where neither the manufacturer nor his authorised representative is established within the Community the obligation to keep the technical documents available shall be the responsibility of the person who places the product on the Community market.

(6) Where a declaration of conformity is drawn up to the approved type in accordance with Modules D or E of Annex IV to the Directive, the manufacturer must, for a period of at least 10 years after the last date of manufacture of the product concerned, keep at the disposal of the national authorities the data referred to in paragraph 5 of Module D or the data referred to in paragraph 5 of Module E of Annex IV to the Directive, whichever is applicable.

10 Quality System Approval.

10. (1) On application for approval of a quality system in accordance with Module D or E of Annex IV of the Directive and, on receipt of the appropriate fee, a notified body in the State shall carry out or cause to be carried out such examinations, tests and checks as are required for quality system approval under the Directive.

(2) If a notified body in the State, after carrying out or causing to be carried out the aforementioned examinations, tests and checks is satisfied that the quality system ensures conformity with the type described in the EC type-examination certificate and with the efficiency requirements it shall notify the applicant of its approval of the quality system.

(3) A notified body in the State shall provide the other notified bodies in the Community with the relevant information concerning the quality system approvals issued by it.

11 EC Monitoring

11. Where a manufacturer has chosen the means of conformity to type as referred to in Module D or Module E of Annex IV to the Directive, he shall apply a quality system as approved by the notified body that ensures conformity with the type as described in the EC type-examination certificate and the said manufacturer shall be subject to the monitoring as outlined in paragraph 4 of Module D and paragraph 4 of Module E of Annex IV to the Directive to ensure that he fulfils the obligations arising out of the approved quality system.

12 EC Mark.

12. (1) The manufacturer or his authorised representative within the Community shall ensure that the EC mark of conformity to the requirements of these Regulations shall be affixed on boilers in a visible, easily legible and indelible manner.

(2) No person shall affix on a boiler to which these Regulations apply any mark, sign or indication liable to create confusion with the EC mark as regards either its significance or its appearance.

13 Criteria for Affixing Energy Performance Labels

13. (1) For boilers which satisfy, as a minimum, the useful efficiency requirements for standard boilers set out in Regulation 5, the following system of energy performance labelling may be applied:

( a ) a boiler having useful efficiencies both at rated output and at part load equal to or greater than the corresponding values for standard boilers as set out in Regulation 5 shall be awarded an energy performance label consisting of one symbol of the type set out in Section 2 of Annex I to the Directive;

( b ) a boiler having useful efficiencies both at rated output and at part load three or more points higher than the relevant values for standard boilers as set out in Regulation 5 shall be awarded an energy performance label consisting of two symbols of the type set out in Section 2 of Annex I to the Directive.

( c ) a boiler having useful efficiencies both at rated output and at part load which further exceed, by a multiple of, three percentage points, the relevant values for standard boilers as set out in Regulation 5 shall be awarded a further symbol of the type set out in Section 2 of Annex I to the Directive corresponding to each step of three points as set out in the Table of Annex II to the Directive.

(2) No person shall affix on a boiler to which these Regulations apply any label, other than that permitted by these Regulations, which is likely to create confusion with the energy performance label referred to in this Regulation.

14 Refusal, Suspension or Withdrawal of EC Type-Examination Certificate or Quality System Approval.

14. (1) Where a notified body in the State has established:

( a ) that boilers for which an EC type-examination certificate has been issued do not satisfy the useful efficiency requirements as set out in Regulation 5; or

( b ) that the manufacturer or his authorised representative has failed to fulfil his obligations under Annex III and Annex IV to the Directive;

the notified body shall report the fact to the Minister and, where the manufacturer of the boilers or appliances has failed to comply with a written request from the notified body to take the appropriate measures, within the time specified in the request to conform with the useful efficiency requirements of the Directive, the notified body shall, as appropriate, suspend or withdraw the EC type-examination certificate issued by it under Regulation 8 or the quality system approval issued under Regulation 10.

(2) Where a notified body in the State suspends or withdraws an EC type-examination certificate, issued by it under Regulation 8, or the quality system approval issued under Regulation 10, it shall so inform the other notified bodies in the Community and the Minister, giving the reason for its decision.

(3) On taking a decision to refuse to grant, or a decision to suspend or withdraw, an EC type-examination certificate or quality system approval, a notified body in the State shall, as soon as practicable thereafter, send to the manufacturer in question or his authorised representative a notice in writing of that decision stating the exact grounds on which it is based and informing the manufacturer or his authorised representative of his right to appeal against the decision under Regulation 16 (1) and of the time limit for bringing such an appeal.

15 Prohibition on marketing

15. (1) Where the Minister is of the opinion that a person is placing or has placed on the market a boiler or an appliance bearing the EC mark which, in the case of a boiler, does not satisfy the useful efficiency requirements as set out in Regulation 5, or, in the case of an appliance, is not accompanied by the necessary EC declaration of conformity prescribed in Regulation 9 (3) he may, by direction in writing given to that person, prohibit him from placing or continuing to place on the market such a boiler or appliance, impose restrictions on his so doing or require him to take all practicable steps to withdraw from the market any such boiler or appliance already placed by him on the market, and that person shall comply with the direction.

(2) The Minister may, as he thinks fit, withdraw a direction given by him under paragraph (1).

(3) Where the Minister gives or withdraws a direction under paragraph (1) he shall immediately inform the Commission of the fact indicating the reasons for his having given or withdrawn the direction.

(4) Any trader, importer or manufacturer who is affected by a direction given under paragraph (1) may appeal to the High Court against the direction and the Court, as it thinks proper, may vary, annul or confirm the direction.

(5) Where such a Court hearing arises a document purporting to be a direction given by the Minister under paragraph (1) and to be signed by him shall be received in evidence and deemed to be such direction without further proof, unless the contrary is shown.

16 Review.

16. (1) Any person aggrieved by a decision of a notified body in the State under Regulation 14 (1) may, by notice in writing given to the Minister not later than 14 days after the receipt by that person of notice of that decision, appeal to the Minister against the decision and the Minister, having considered any submissions made to him by the person, the notified body in the State and any other interested parties and the report of any inquiry held under paragraph (2) in relation to the appeal or of any assessor appointed under paragraph (3) in relation thereto, may uphold, vary or reverse the decision of the notified body.

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

(3) The Minister may appoint an assessor to assist him 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 the Minister under paragraph (2).

17 Powers of authorised officers.

17. (1) The Minister may appoint as authorised officers such and so many persons as he considers necessary for the purposes of these Regulations.

(2) Every person appointed pursuant to this Regulation shall be furnished with a certificate of appointment and when exercising a power under these Regulations shall, if requested by any person thereby affected, produce such certificate for inspection by the person so affected.

(3) An authorised officer may, on production of his authorisation if so required by any person affected, for the purposes of these Regulations and of the Directive—

( a ) at all reasonable times, enter any premises or place in which he has reasonable grounds for believing that there is a boiler or appliance, or a boiler or appliance is being manufactured, or any premises or place that are part of an undertaking engaged in the manufacture of boilers or appliances,

( b ) at such premises or place, request the production of, or search for, inspect and take copies of, or extracts from, any books, records or other documents which he finds in the course of his inspection,

( c ) carry out or have carried out such examinations, tests, inspections and checks of the place and any equipment, machinery or plant in or at the place as he reasonably considers to be necessary for the purposes of his functions under these Regulations or the Directive,

( d ) require any person at the premises or place and the owner or person in charge and any person employed in connection therewith to give to him such information and to produce to him such books, documents and other records which are in that person's power or procurement as he may reasonably require for the purposes of his functions under these Regulations or the Directive,

( e ) take possession of and remove for examination and checking by the Minister or an inspection body, a boiler or an appliance or any part thereof, and retain such boiler or appliance or part thereof for such time as he considers reasonable for the purposes of his functions under these Regulations or the Directive.

18 Offences.

18. (1) A person who—

( a ) obstructs or interferes with an authorised officer in the course of exercising a power conferred on him by these Regulations or impedes the exercise by the officer of such power or fails or refuses to comply with a request made by or to answer a question asked by an authorised officer pursuant to these Regulations or in purported compliance with such request or in answer to such question gives information to an officer that he knows to be false or misleading in a material respect, or

( b ) affixes to an appliance a mark or inscription which is likely to be confused with the EC mark, or

( c ) contravenes in any other way any provision or requirement of, or under, these Regulations

shall be guilty of an offence.

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

(3) 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 twelve months or to both such fine and such imprisonment.

19 Prosecution of offences.

19. Proceedings for an offence under these Regulations may be brought and prosecuted by the Minister.

GIVEN under my Official Seal, this 27th day of July, 1994.

BRIAN COWEN,

Minister for Transport, Energy

and Communications.

EXPLANATORY NOTE.

The purpose of the Regulations is to give legal effect to Council Directive 92/42/EEC of 21 May 1992 on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels.

The Regulations come into operation on 1st August, 1994, and apply to new hot water boilers fired by liquid or gaseous fuels with a rated output of no less than 4 kW and no more than 400 kW with the exception of those boilers as specified in the Directive. The Regulations prohibit the placing on the market or the putting into service of a boiler or appliance unless it satisfies the efficiency requirement applicable to it as set out in the Directive. Included in the Regulations is a transitional period as provided for in Article 9 of the Directive.

The Regulations also provide for the appointment of a notified body and the procedures for the granting by the notified body of EC type-examination certificates and the drawing up of written declarations of conformity as well as the operation of EC verification and surveillance of the manufacture of boilers or appliances. The Regulations set out the obligations on manufacturers or their authorised representatives and the conditions under which they may issue a declaration of conformity and attach the CE mark.

The Regulations also empower the Minister to order the withdrawal from the market of boilers or appliances bearing the CE mark if they do not meet the efficiency requirements. The Regulations also provide for an appeals procedure for persons aggrieved by a decision of the Minister or of a notified body, the appointment and powers of authorised officers and penalties for offences under the Regulations.