The Enterprise Act 2002 (Amendment) Regulations 2006

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement Articles 4(6) and 13(4) of Regulation (EC) No. 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, as amended by Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (the “CPC Regulation”).

The CPC Regulation creates a network of enforcers which are responsible for taking action to stamp out cross border infringements of the EC consumer protection legislation set out in the Annex to the said Regulation. Article 4(6), which prescribes the powers which enforcers under the CPC Regulation must have, requires further implementation.

Part 8 of the Enterprise Act 2002 (the “2002 Act”) confers some of the enforcement powers referred to in the CPC Regulation on certain bodies in relation to most (but not all) of the EC consumer protection legislation which the CPC Regulation applies to. Most of the Regulations amend Part 8 to ensure that the powers set out in Article 4(6) of the CPC Regulation may be exercised in accordance with the terms of the said Regulation.

Regulation 17 adds entry and inspection powers to Part 8 of the 2002 Act along with certain procedural safeguards and a criminal offence of obstructing officers of enforcers Part 8 to give effect to Article 4(6)(c) of the CPC Regulation, since Part 8 does not contain entry and inspection powers.

Regulation 11 gives details of the bodies which are entitled to exercise those powers. Regulation 12 restricts the scope of CPC enforcers' activities by providing that they may only apply for an enforcement order in relation to Community infringements.

Regulation 13 gives give effect to Article 4(6)(e) of the CPC Regulation by giving CPC enforcers the power to publish (or to obtain an undertaking to publish) an undertaking obtained other than in connection with proceedings to obtain an enforcement order. Regulation 16 extends the power in section 226 of the 2002 Act to enable enforcers to obtain information in any form (in accordance with Article 4(6)(a) of the CPC Regulation).

Regulation 20 clarifies how references to those bodies, where they already act as enforcers under Part 8 are to be interpreted. The remainder of regulations 4 to 19 make amendments to Part 8 which are ancillary to the substantive provisions described above. Regulation 21 ensures that the entry and inspection powers do not apply to premises occupied by the Crown. Regulation 22 adds the three pieces of Community legislation to Schedule 13 of the 2002 Act to which CPC applies but Part 8 does not.

Regulation 23 ensures that certain powers and protections which the Financial Service Authority enjoys under the Financial Services and Markets Act 2000 which are necessary for the proper discharge of its functions under the CPC Regulation will apply to the discharge of those functions.

Regulation 28 applies the enhanced seizure powers contained in section 50 of the Criminal Justice and Police Act 2001 (the “2001 Act”) to the power of entry and inspection under warrant set out in regulation 17. Regulation 26(1) ensures that the definition of legal professional privilege in regulation 17 applies where the issue of privilege arises in the context of the exercise of powers under the 2001 Act by CPC enforcers. Regulations 25, 26(2) and (3) and 27 make certain ancillary amendments to the 2001 Act.

Regulation 29 implements Article 13(4) of the CPC Regulation by ensuring that the subject access provisions in the Data Protection Act 1998 do not obstruct the proper functioning of the CPC Regulation.

A full regulatory impact assessment of the effect that this instrument will have on the costs of business is available from Duncan Lawson, Bay 407, Department of Trade & Industry, 1 Victoria Street, London, SW1H 0ET.