text:
Citation and commencement
1
These Regulations may be cited as the Early Years Foundation Stage (Welfare Requirements) (Amendment) Regulations 2008 and come into force on 1st September 2008.
Amendments to the Early Years Foundation Stage (Welfare Requirements) Regulations 2007
2
The Early Years Foundation Stage (Welfare Requirements) Regulations 2007 are amended as follows.
3
In regulation 2 (interpretation) —
a
for the definition of “the Document”, substitute —
“the Document” means the Document entitled “Statutory Framework for the Early Years Foundation Stage” published by the Secretary of State on 19th May 2008 with ISBN 978-1-84775-128-7;
;
b
at the end, insert —
“instructor”, in relation to an independent school , means a person who provides education at the school which consists of instruction in any art or skill or in any subject or group of subjects in circumstances where —
special qualifications or experience or both are required for such instruction, and
the person or body of persons responsible for the management of the school is satisfied as to the qualifications or experience (or both) of the person providing education;
“overseas qualified teacher” means a person who has a qualification obtained as a result of successfully completing a programme of professional training for teachers in any country outside the United Kingdom which is recognised as such a programme of training by the competent authority in that country;
“the qualification requirement” means the requirement on page 31 of the Document which provides that “in registered settings other than childminding settings, all supervisors and managers must hold a full and relevant level 3 qualification (as defined by the Children’s Workforce Development Council ( CWDC )) and half of all other staff must hold a full and relevant level 2 qualification (as defined by CWDC)”;
“the ratio requirements for childminders” means the requirements in section B of Appendix 2 on page 51 of the Document;
“the ratio requirements for early years providers other than childminders” means the requirements in section A of Appendix 2 on pages 49 to 51 of the Document;
“registered early years provider” means a person who is registered in the early years register under Chapter 2 of Part 3 of the Act.
.
4
In regulation 3 (specification of the welfare requirements), in paragraph (2), after “have effect” insert “, with the modifications specified in regulations 3A, 3B and 3C,”.
5
After regulation 3, insert —
Transitional arrangements for specified early years providers
3A
1
Paragraphs (2) to (4) apply in the case of an early years provider who provides early years provision on domestic premises, where —
a
immediately before 1st September 2008 —
i
the early years provider, or
ii
in the case of an early years provider which is a domestic group provider, at least one person who is a partner in, or a director, secretary, other officer or member of the governing body of, the early years provider,
was registered under section 79F(1) of the Children Act 1989 as a child minder, and
b
on 1st September 2008, the early years provider becomes registered under section 37(2) of the Act as an early years provider other than a childminder .
2
The provisions in Section 3 of the Document have effect in relation to an early years provider described in paragraph (1) with the modifications specified in paragraphs (3) and (4).
3
The qualifications requirement, and any requirement in Section A of Appendix 2 to the Document for a level 2 or level 3 qualification, does not have effect until 1st March 2011.
4
Until such time as the early years provider has met the qualifications requirement, and any requirement in Section A of Appendix 2 to the Document for a level 2 or level 3 qualification, the ratio requirements for childminders apply to that early years provider instead of the ratio requirements for early years providers other than childminders.
5
In this regulation, “domestic group provider” means an early years provider who —
a
provides early years provision on domestic premises,
b
is registered under section 37(2) of the Act as an early years provider other than a childminder, and
c
is a partnership, body corporate or unincorporated association.
Transitional arrangements for independent schools
3B
1
The provisions in Section 3 of the Document have effect in relation to early years provision which is provided in an independent school with the modifications specified in paragraph (2).
2
Until 1st September 2009 —
a
the requirement in paragraph 9 in section A of Appendix 2 to the Document that “at least one other member of staff must hold a full and relevant level 3 qualification” does not apply, and
b
the requirements in paragraph 10 in section A of Appendix 2 to the Document that “at least one other member of staff must hold a full and relevant level 3 qualification (as defined by CWDC)” and that “at least half of all other staff must hold a full and relevant level 2 qualification (as defined by CWDC)” do not apply.
Further modifications for independent schools
3C
1
The provisions in Section 3 of the Document have effect in relation to early years provision which is provided in an independent school with the modifications specified in paragraphs (2), (3) and (5).
2
The requirements in paragraph 9 in Section A of Appendix 2 to the Document also apply where an instructor or an overseas qualified teacher is working directly with the children for whom the early years provision is provided.
3
The requirements in paragraph 10 in Section A of Appendix 2 to the Document also apply where an instructor or an overseas qualified teacher is not working directly with the children for whom the early years provision is provided.
4
Paragraph (5) applies where early years provision is provided in a class in which the majority of pupils will reach the age of 5 or over within the school year.
5
In paragraph 9 in Section A of Appendix 2 to the Document —
a
the reference to “one member of staff for every 13 children” is to be read as a reference to “one member of staff for every 30 children”; and
b
the requirement that “at least one other member of staff must hold a full and relevant level 3 qualification (as defined by CWDC)” does not apply.
6
In regulations 7(1), 8(1), 9(1) and (2), 10(1) and (4), and 11(1) and (2), in each case for the words “an early years provider” substitute “a registered early years provider”.
7
In regulation 8 (provision of information), at the end, insert —
3
Where the registered early years provider is required to notify the Chief Inspector of a change of person under paragraph 10(b), 11(a) or 12(a) or (b) of the Schedule to these Regulations, the notification must include the new person’s —
a
full name, and any former name or alias,
b
date of birth, and
c
home address.
.
8
In the Schedule (events to be notified to the Chief Inspector) —
a
in paragraph 5, before the word “injury” (in both places it appears) insert “serious”;
b
in paragraphs 8 and 9, in each case omit the words “or registered address”;
c
after paragraph 11, insert —
12
1
In the case of an early years provider (other than an early years childminder) which is a partnership, body corporate or unincorporated association —
a
any change of the person who is the nominated individual, and
b
where the early years provider’s sole or main purpose is the provision of childcare, any change of a person who is a partner in, or a director, secretary or other officer or member of the governing body of, the early years provider.
2
For the purposes of paragraph (1)(a), “the nominated individual” has the meaning given in paragraph 9 of Schedule 2 to the Childcare (Early Years Register) Regulations 2008 .
.
Beverley Hughes
Minister of State
Department for Children, Schools and Families
21st July 2008


type: legislation

jurisdiction: UK

text:
Citation and commencement
1
These Regulations may be cited as the Individual Savings Account (Amendment) Regulations 2008 and shall come into force on 6th April 2008 immediately after the Individual Savings Account (Amendment) Regulations 2007 .
Amendment of the Individual Savings Account Regulations 1998 ( S.I. 1998/1870 )
2
The Individual Savings Account Regulations 1998 are amended as follows.
Amendment of regulation 2 (interpretation)
3
1
Amend regulation 2 as follows.
2
Amend regulation 2(1)(a) as follows —
a
for the definition of “approved employee share ownership plan” (and the other expressions defined with that expression) substitute —
“approved SAYE option scheme” shall be construed in accordance with the SAYE code (see section 516(3) of ITEPA 2003 );
“approved SIP ” shall be construed in accordance with the SIP code (see section 488(3) of ITEPA 2003);
;
b
after the definition of “ building society bonus” insert —
“ceasing to be subject to the plan”, in relation to plan shares under an approved SIP, shall be construed in accordance with the SIP code (see section 488(3) of ITEPA 2003);
;
c
in the definition of “deposit-taker” for “section 481(2) of the Taxes Act” substitute “section 853 of ITA 2007 ”;
d
omit the definition of “income tax quarter”;
e
after the definition of “investment trust” insert the following definitions —
“ITA 2007” means the Income Tax Act 2007 ;
“ITEPA 2003” means the Income Tax (Earnings and Pensions) Act 2003 ;
“ ITTOIA 2005 ” means the Income Tax (Trading and Other Income) Act 2005 ;
;
f
in the definition of “investment trust” omit the words from “, and references” to the end of that definition;
g
after the definition of “notice” insert —
“participant”, in relation to an approved SIP, shall be construed in accordance with the SIP code (see section 488(3) of ITEPA 2003);”;
“plan shares”, in relation to an approved SIP, shall be construed in accordance with the SIP code (see section 488(3) of ITEPA 2003) except that —
paragraph 87(6) of Schedule 2 to ITEPA 2003 (meaning of the word “shares” in the context of company reconstructions) shall not apply, and
in paragraph 88(2) of that Schedule (treatment of shares acquired under rights issue) the words “or securities or rights” shall be treated as omitted;
;
h
in the definition of “relevant authorised person” for “section 333A(12) of the Taxes Act” substitute “section 697(2)(b) of ITTOIA 2005”;
i
in the definition of “relevant European institution” for “section 326A(10) of the Taxes Act” substitute “section 697(2)(a) of ITTOIA 2005”;
j
omit the definition of “savings-related share option scheme”.
3
Amend regulation 2(1)(b) as follows —
a
in the definition of “authorised fund” omit the words following “investment company”;
b
for the definition of a “Chapter 5 UCITS ” substitute —
a “Chapter 5 UCITS” means a UCITS complying with Chapter 5 of the Collective Investment schemes sourcebook;
;
c
omit the definitions of “the first condition”, “the second condition”, “fund of funds scheme”, “money market scheme” and “the New Collective Investment Schemes Sourcebook” ;
d
for the definition of “open-ended investment company” substitute —
“open-ended investment company” means a company incorporated in the United Kingdom to which section 236 of the Financial Services and Markets Act 2000 applies;
;
e
in the definition of “non-UCITS retail scheme” , in paragraph (a), omit “New”;
f
in the definition of “qualifying units in or shares of a non-UCITS retail scheme” , in paragraph (a), omit “New”;
g
omit the definitions of “securities scheme” and “the 1997 Regulations”;
h
in the definition of “umbrella scheme” —
i
in paragraph (i) of that definition for the words following “Taxes Act,” substitute “and sub-paragraphs (6) and (7) of regulation 7 of the Authorised Investment Funds (Tax) Regulations 2006 shall apply for the purposes of these Regulations as they apply for the purposes of those Regulations, and”, and
ii
in paragraph (ii) of that definition for the words following “in accordance with” substitute “subsection (4) of section 468A of the Taxes Act , and sub-paragraphs (2) and (3) of regulation 7 of the Authorised Investment Funds (Tax) Regulations 2006 shall apply for the purposes of these Regulations as they apply for the purposes of those Regulations;”;
i
for the definitions of “unit holder” and “unit trust scheme” substitute —
“unit holder” means a person entitled to a share of the investments subject to the trusts of a unit trust scheme;
“unit trust scheme” has the meaning given by section 237 of the Financial Services and Markets Act 2000;
;
j
omit the definition of “warrant scheme” .
Amendment of regulation 4 (general conditions for accounts and subscriptions to accounts)
4
In regulation 4(6), in each of sub-paragraphs (c) and (d), for “regulation 8(2)(c) and (d)” substitute “paragraphs (g), (h), (k), (l) and (m) of regulation 8(2)”.
Amendment of regulation 6 (general investment rules)
5
1
Amend regulation 6 as follows.
2
In paragraph (1)(a) for “rule 15.4.4 of the Collective Investment Schemes Sourcebook” substitute “rules 6.3.5 and 6.3.5B of the Collective Investment schemes sourcebook”.
3
In paragraph (1)(b) for “rule 4.3.11 of the Collective Investment Schemes Sourcebook” substitute “rules 6.3.5 and 6.3.5A of the Collective Investment schemes sourcebook”.
Amendment of regulation 7 (qualifying investments for a stocks and shares component)
6
1
Amend regulation 7 as follows.
2
In paragraph (2), in each of sub-paragraphs (b)(iii) and (d), for “paragraphs (7) and” substitute “paragraph”.
3
Omit paragraph (2)(e).
4
In paragraph (2)(h) —
a
in sub-paragraph (i) for “a savings-related share option scheme” substitute “an approved SAYE option scheme”;
b
in sub-paragraph (iii) for “employee share ownership plan” substitute “SIP”.
5
Omit paragraph (7).
6
In paragraph (8) —
a
in the words before sub-paragraph (a) for “trust, scheme or UCITS, or investments subject to the trusts of the scheme, as the case may be,” substitute “investment trust”;
b
in the words after sub-paragraph (b) for the words from “trust,” to the end substitute “investment trust”.
7
Omit paragraph (9).
8
In paragraph (10)(a) for “a savings-related share option scheme” substitute “an approved SAYE option scheme”.
9
In paragraph (14) omit “(e),” and for “, (g) or (ga)” substitute “or (g)”.
Amendment of regulation 8 (qualifying investments for a cash component)
7
1
Amend regulation 8 as follows.
2
In paragraph (2) omit sub-paragraphs (c) and (d).
3
In paragraph (2)(g) omit “(e),”and for “, (g) or (ga)” substitute “or (g)”.
Amendment of regulation 9 (insurance policies)
8
1
Amend regulation 9 as follows.
2
In paragraph (3)(d)(ii) for “regulation 2(1) of the Personal Portfolio Bonds (Tax) Regulations 1999 ” substitute “section 516 of ITTOIA 2005”.
3
In paragraph (7)(b)(i) for “final year in relation to the policy, within the meaning of section 546(4) of the Taxes Act” substitute “final insurance year in relation to the policy, within the meaning given by section 499 of ITTOIA 2005”.
Amendment of regulation 10 (qualifying individuals who may invest under an account)
9
In regulation 10(2)(d) for paragraph (ii) substitute —
ii
who, though not resident in the United Kingdom, has general earnings from overseas Crown employment subject to United Kingdom tax within the meaning given by section 28 of ITEPA 2003,
.
Amendment of regulation 12 (conditions for application to subscribe to an account)
10
1
Amend regulation 12 as follows.
2
In paragraph (3)(f) for paragraph (ii) substitute —
ii
is a person who has general earnings from overseas Crown employment subject to United Kingdom tax within the meaning given by section 28 of ITEPA 2003,
.
3
In paragraph (3)(g)(iv) for “the application is not in writing” substitute “a written declaration is required by paragraph (7)”.
4
In paragraph (7) —
a
for “Where paragraph (3)(g)(iv) applies” substitute “Where the application is not in writing or the manager operates a record system under which all original written applications are not retained”;
b
for “therein referred to” substitute “referred to in paragraph (3)(g)(iv)”;
5
In paragraph (10) —
a
for “(3)(g)(iv) of this regulation” substitute “(7)”;
b
omit “of this regulation” where it secondly appears.
Amendment of regulation 16 (account manager – appointment of tax representative)
11
In regulation 16(2)(a) for “subsection (5) of section 333A of the Taxes Act” substitute “section 698(2)(b) of ITTOIA 2005”.
Amendment of regulation 22 (exemption from tax of account income and gains)
12
1
Amend regulation 22 as follows.
2
In paragraph (1)(a)(ii) for “by section 714(2) of the Taxes Act” substitute “under Part 12 of ITA 2007 (accrued income profits)”.
3
In paragraph (1)(a) for paragraph (iv) substitute —
iv
on a profit on the disposal of a deeply discounted security within the meaning given by section 430 of ITTOIA 2005 ,
.
4
In paragraph (1)(a)(v) for “by section 541 of the Taxes Act” substitute “under Chapter 9 of Part 4 of ITTOIA 2005”.
5
For paragraph (1)(c) substitute —
c
a deficiency arising in a tax year and falling within section 539(1) of ITTOIA 2005 , so far as it relates to an account investment, shall not be allowable as a deduction from the total income of the account investor;
.
6
In paragraph (1)(e) for “section 660B of the Taxes Act” substitute “section 629 of ITTOIA 2005”.
Amendment of regulation 24 (tax liabilities and reliefs – account manager to act on behalf of account investor)
13
In regulation 24(3)(c) for “paragraph 3 or 4 of Schedule 23A to the Taxes Act” substitute “Chapter 9 of Part 15 of ITA 2007”.
Amendment of regulation 31 (returns of information by account manager)
14
1
Amend regulation 31 as follows.
2
In paragraph (1) for “and (5)” substitute “, (5) and (7)”.
3
Omit paragraph (2).
4
In paragraph (4)(a) for paragraph (iv) substitute —
iv
units in an authorised unit trust,
.
5
In paragraph (4)(a) for paragraph (vi) substitute —
vi
shares in an open-ended investment company,
.
6
In paragraph (4)(a) for paragraph (via) substitute —
via
the surrender value of life insurance policies which satisfy the condition of regulation 7(15),
.
7
In paragraph (4) for sub-paragraph (b) substitute —
b
the respective market values at the end of the year or the part of the year for which the return is made of account investments held under cash components, by him or a nominee for him on behalf of account investors, under all the accounts in respect of which he acted as account manager in that year or part, with separate values for —
i
cash, including cash represented in share accounts with building societies,
ii
the surrender value of life insurance policies which do not satisfy the condition in regulation 7(15), and
iii
investments (other than those specified in paragraphs (i) and (ii)) which do not satisfy the condition in regulation 7(15); and
.
8
Omit paragraph (6).
9
In paragraph (7) —
a
for the words from the beginning to “for which the return is made, as to” substitute —
The information specified in this paragraph is information relating to all accounts to which subscriptions were made in the year or part of the year, in respect of which he was acting as account manager immediately before the end of the year or part of the year for which the return is made, or in the case of an account that was closed during the year, in respect of which he was acting as manager at the date the account was closed, as to
;
b
in sub-paragraph (b) for “quarter or other period” substitute “year or part of the year”.
Amendment of regulation 34 (capital gains tax – adaptation of enactments)
15
1
Amend regulation 34 as follows.
2
In paragraph (2)(a), in the notionally added subsection (12)(b)(iii) of section 106A of the Taxation of Chargeable Gains Act 1992 , for “employee share ownership plan” substitute “SIP”.
3
In paragraph (2)(a), in the notionally added subsection (13) of section 106A of the Taxation of Chargeable Gains Act 1992, for paragraph (c) and the word “and” immediately preceding it substitute —
c
“approved SIP” and “ceased to be subject to the plan” shall be construed in accordance with the SIP code (see section 488(3) of ITEPA 2003); and
d
“plan shares”, in relation to an approved SIP, shall be construed in accordance with the SIP code (see section 488(3) of ITEPA 2003) except that —
i
paragraph 87(6) of Schedule 2 to ITEPA 2003 (meaning of the word “shares” in the context of company reconstructions) shall not apply, and
ii
in paragraph 88(2) of that Schedule (treatment of shares acquired under rights issue) the words “or securities or rights” shall be treated as omitted.
.
Amendment of regulation 35 (administration of tax in relation to accounts – supplementary)
16
1
Amend regulation 35 as follows.
2
In paragraph (5)(a) for “sections 95 and 96” substitute “section 95”.
3
In paragraph (6)(a) for “Chapter 2 of Part 13 of the Taxes Act” substitute “Chapter 9 of Part 4 of ITTOIA 2005”.
4
For paragraph (7) substitute —
7
A termination of a policy of insurance pursuant to regulation 9(3)(b)(ii) shall be treated as the surrender of all rights under the policy for the purposes of section 484(1)(a)(i) of ITTOIA 2005.
.
Amendment of regulation 36
17
1
Amend regulation 36 as follows.
2
In the title to the regulation after “Taxes Act” insert “and of Chapter 9 of Part 4 of ITTOIA 2005”.
3
In paragraph (2)(b) for “within the meaning given by section 540 of the Taxes Act” substitute “falling within section 484(1) of ITTOIA 2005”.
4
In paragraph (3) after “Taxes Act” insert “and of Chapter 9 of Part 4 of ITTOIA 2005”.
5
For paragraph (4) substitute —
4
Section 530 of ITTOIA 2005 does not apply to a gain in a case in which paragraph (1) applies.
.
6
In paragraph (5) for “section 550 of the Taxes Act” substitute “section 535 of ITTOIA 2005”.
Dave Watts
Alan Campbell
Two of the Lords Commissioners of Her Majesty’s Treasury
12th March 2008


text:
Citation and commencement
1
These Regulations may be cited as the Amusement Machine Licence Duty, etc (Amendments) Regulations 2008 and come into force on 1st November 2008.
Excise: amusement machine licence duty
2
In regulation 3 of the Amusement Machine Licence Duty Regulations 1995 (display of licence), start a new line and continue —
As of 1st November 2008, this does not apply when the licence is with the Commissioners or in transit to or from them.
.
3
After regulation 4 of those Regulations (spare amusement machines), insert —
Licences combined in single document
5
Amusement machine licences need only be combined in a single document if each of the following is true —
a
their expiry dates are the same;
b
their holder is the same;
c
the premises with respect to which each of them is in force is the same;
d
each of them authorises the provision of only one amusement machine for play on those premises, but is not a special amusement machine licence (see section 21(2) of the Betting and Gaming Duties Act 1981 – licence granted with respect to a machine rather than premises);
e
none of them is a seasonal licence (licence for 6 months beginning 1st April - see Schedule 4 paragraphs 4(3), 4(4) and 4(8) to the Betting and Gaming Duties Act 1981 );
f
at least one of them was granted for 12 months;
g
at least one of them was first granted on 1st November 2008 or later.
.
Insurance premium tax, landfill tax, climate change levy, aggregates levy
4
1
Substitute “£10,000 or less” for “less than £10,000” in —
a
regulation 13(3) of the Insurance Premium Tax Regulations 1994 ;
b
regulation 13(4) of the Landfill Tax Regulations 1996 ;
c
regulation 28(4A) of the Climate Change Levy (General) Regulations 2001 ;
d
regulation 29(6) of the Aggregates Levy (General) Regulations 2002 .
2
Each amendment only has effect for a discovery first made on 1st November 2008 or later.
(See regulations 13(3) (insurance premium tax), 13(4) (landfill tax), 28(2) or 28(3) (climate change levy), and 29(2) or 29(3) (aggregates levy) of the respective Regulations - discovery of error in tax return.)
Dave Hartnett
Steve Lamey
Two of the Commissioners for Her Majesty’s Revenue and Customs
10th October 2008


text:
Citation, commencement and application
1
1
These Regulations may be cited as the General Teaching Council for England (Disciplinary Functions) (Amendment) Regulations 2008.
2
These Regulations come into force on 20th January 2009.
3
These Regulations apply in relation to England.
Amendment of the General Teaching Council for England (Disciplinary Functions) Regulations 2001
2
1
Regulation 29 of The General Teaching Council for England (Disciplinary Functions) Regulations 2001 is amended as follows.
2
For sub-paragraph (a) of paragraph (1) substitute —
a
has ceased to use a registered teacher’s services on a ground relating to the registered teacher’s —
i
professional incompetence;
ii
misconduct; or
iii
conviction for a relevant offence within the meaning of paragraph 8 of Schedule 2 to the 1998 Act; or
.
3
For sub-paragraph (a) of paragraph (2) substitute —
a
has terminated the arrangements on a ground relating to the registered teacher’s —
i
professional incompetence;
ii
misconduct; or
iii
conviction for a relevant offence within the meaning of paragraph 8 of Schedule 2 to the 1998 Act;
.
Jim Knight
Minister of State
Department for Children, Schools and Families
17th December 2008


text:
1
This Order may be cited as the A4123 Trunk Road (Sandwell and Dudley) (Detrunking) Order 2008 and shall come into force on 13th November 2008.
2
In this Order —
i
“the plan” means the plan folio numbered HA 10/OD/315 consisting of sheets 1 and 2 and marked “The A4123 Trunk Road (Sandwell and Dudley) (Detrunking) Order 2008” signed by the authority of the Secretary of State for Transport and deposited at the Department for Transport, Information Management Division, Ashdown House, Sedlescombe Road North, St Leonards-on-Sea, East Sussex TN37 7GA;
ii
“principal road” as a classification for a highway, means that the highway is a principal road for the purposes of enactments and instruments which refer to highways classified as principal roads and is also classified for the purpose of every other enactment and instrument which refers to highways classified by the Secretary of State; and
iii
“the trunk road” means the A4123 Trunk Road
3
The length of the trunk road described in the Schedule to this Order shall cease to be a trunk road and shall be classified as a principal road from the date on which the Order comes into force.
Signed by authority of the Secretary of State for Transport
Tim Harbot
A Divisional Director, Highways Agency
22nd September 2008


text:
Citation and commencement
1
These Regulations may be cited as the Merchant Shipping (Training and Certification) (Amendment) Regulations 2008 and come into force on 2nd December 2008.
Amendment of the Merchant Shipping (Training and Certification) Regulations 1997
2
1
The Merchant Shipping (Training and Certification) Regulations 1997 are amended as follows.
2
In regulation 5 (recognition of certificates issued by EEA States) —
a
in paragraph (1), for “may” substitute “must”;
b
in paragraph (1)(a), after “issued” insert “in accordance with the requirements of the Directive”;
c
in paragraph (1)(b), for “paragraph (2)” substitute “paragraphs (2) and (3)”;
d
for paragraphs (2) and (3) substitute —
2
Subject to paragraphs (4) and (5), the Secretary of State may, before issuing a certificate of equivalent competency to an applicant performing management level functions, require the applicant to demonstrate sufficient knowledge of such United Kingdom maritime legislation as is relevant to the applicant’s management level functions;
3
The Secretary of State must not issue a certificate of equivalent competency to an applicant unless that applicant can demonstrate possession of adequate language proficiency, in accordance with the requirements in sections A-II/1, A-III/1, A-IV/2 and A-II/4 of the STCW Code.
;
e
in paragraph (4) for “of maritime legislation and administrative procedures” substitute “maritime legislation in accordance with paragraph (2)”;
f
in paragraph (5), delete “and administrative procedures”.
3
In regulation 5A (recognition of certificates issued by other states) —
a
in paragraph (2)(a) —
i
delete “certificates issued by”, and
ii
for “are” substitute “is”;
b
in paragraph (2)(a) and (c) for “Article 18” substitute “Article 18(3)”;
c
in paragraph (2)(c) —
i
for “paragraph (5)” substitute “paragraph (7)”, and
ii
delete “certificates issued by”;
d
in paragraph (7)(b) —
i
delete “certificates issued by”, and
ii
insert “third” after “that”;
e
in paragraph (8) delete “certificates issued by”;
f
in paragraph (8)(a) for “those certificates” substitute “that recognition”.
4
In regulation 17(3) (form, validity, record and surrender of certificates) after “affecting any such certificates or endorsements” insert “and any documentary evidence of training”.
5
In regulation 18 (refusal of certificates, and appeals against refusal) —
a
in paragraph (1) —
i
delete “or for a certificate of equivalent competency”;
ii
for “appropriate certificate” substitute “certificate of competency”;
b
after paragraph (3) insert —
4
If the Secretary of State fails either to issue or revalidate a certificate of equivalent competency or to give notice in writing pursuant to paragraph (2) to an applicant for a certificate of equivalent competency within twenty eight days of the application being made, the Secretary of State shall be deemed to have refused the application and the applicant shall have the right, to request in writing before the expiry of a further twenty eight days, that the application be reviewed at an inquiry.
.
6
Regulation 21 (Designated Authority) is deleted.
Signed by authority of the Secretary of State for Transport
Jim Fitzpatrick
Parliamentary Under Secretary of State
Department for Transport
4th November 2008


text:
Citation, Commencement and revocation
1
1
These Regulations may be cited as the Cosmetic Products (Safety) Regulations 2008 and shall come into force on 18th June 2008.
2
The Regulations listed in Schedule 1 are revoked.
Transitional provisions
2
1
In Schedule 4 (substances subject to restrictions and conditions) the labelling requirement for any toothpaste containing 0.1 to 0.15% fluoride in respect of entries numbered 26 to 43, 47 and 56 of Part 1 does not apply until 19th March 2009.
2
In Schedule 5 (colouring agents) the substance numbered 45425 is omitted after 17th October 2008.
3
In Schedule 6 (Preservatives) reference number 10 is deleted and the text of entry 56 is replaced after 17th October 2008.
4
Cosmetic products which fail to comply with the amendments to these Regulations referred to in paragraphs (2) and (3) may not be placed on the market by EEA manufacturers or by importers established within the EEA after 17th October 2008 and cosmetic products which fail to comply with those changes may not be disposed of to the final consumer after 18th April 2009.
Interpretation
3
In these Regulations —
“the 1987 Act ” means the Consumer Protection Act 1987;
“agent” means an agent established within the EEA appointed by a manufacturer of a cosmetic product to act on his behalf in relation to these Regulations;
“cosmetic ingredient” means any chemical substance or preparation of synthetic or natural origin, except for perfume and aromatic compositions, used in the composition of a cosmetic product;
“cosmetic product” means any substance or preparation intended to be placed in contact with the various external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, correcting body odours, protecting them, or keeping them in good condition except where such cleaning, perfuming, protecting, changing, keeping or correcting is wholly for the purpose of treating or preventing disease;
“cosmetic product intended to come into contact with the mucous membranes” means a cosmetic product intended to be applied in the vicinity of the eyes, on the lips, in the oral cavity or to the external genital organs, and does not include any cosmetic product which is intended to come into only brief contact with the skin;
“ the Directive ” means Council Directive 76/768/ EEC as amended by the Community instruments set out in Schedule 2;
“the EEA” means the area comprised of the EEA States;
“finished cosmetic product” means the cosmetic product in its final formulation as placed on the market and made available to the final consumer, or its prototype;
“ Member State ” means an EEA State;
“preservative” means a substance which is added to a cosmetic product for the primary purpose of inhibiting the development of micro-organisms in that product;
“prototype” means a first model or design that has not been produced in batches and from which the finished cosmetic product is copied or finally developed;
“supply” includes offering to supply, agreeing to supply, exposing for supply and possessing for supply, and cognate expressions shall be construed accordingly; and
“ UV filter” means a substance which is added to a sunscreen cosmetic product for the primary purpose of filtering ultra violet rays for the purpose of protecting the epidermis of the user from harmful effects of such ultra violet rays.
General safety requirement
4
1
No person shall supply a cosmetic product which may cause damage to human health when applied under normal or reasonably foreseeable conditions of use, taking into account, in particular —
a
the product’s presentation,
b
its labelling,
c
any instructions for its use and disposal, and
d
any other indications or information provided by the manufacturer or his authorised agent or by any other person responsible for placing the product on the market in the EEA.
2
Paragraph (1) only applies to the supply by the manufacturer in or importer into the United Kingdom or, in the case of cosmetic products manufactured or imported into the United Kingdom on behalf of another person, to the supply by that other person.
3
The provision of warnings shall not, in any event, exempt any person from compliance with the other requirements of these Regulations.
Substances prohibited in cosmetic products
5
1
No person shall supply a cosmetic product containing a substance listed in Schedule 3 (substances which must not form part of the composition of cosmetic products).
2
The presence of traces of a substance listed in Schedule 3 is allowed provided that such presence is technically unavoidable in good manufacturing practice.
Substances subject to restrictions and conditions
6
No person shall supply a cosmetic product containing a substance listed in Part 1 (substances subject to restrictions and conditions) or Part 2 (substances subject to restrictions and conditions provisionally allowed) of Schedule 4 unless the restrictions and conditions there set out in respect of that substance are satisfied.
Colouring agents
7
1
No person shall supply a cosmetic product containing a colouring agent —
a
that is not listed in Schedule 5,
b
that is listed in Schedule 5 unless the restrictions and conditions there set out in respect of that substance are satisfied.
2
Paragraph (1) does not apply to a cosmetic product containing a colouring agent intended solely to colour hair.
Preservatives
8
No person shall supply a cosmetic product containing a preservative —
a
that is not listed in Schedule 6,
b
that is listed in Schedule 6 unless the requirements set out in columns (c) (d) and (e) of Schedule 6 are satisfied,
c
beyond the limits and outside the conditions laid down in Schedule 6 except where other concentrations are used for specific purposes apparent from the presentation of the product;
UV Filters
9
No person shall supply a cosmetic product containing a UV filter —
a
that is not listed in Schedule 7,
b
that is listed in Schedule 7, unless the requirements in columns (c), (d) and (e) of that Schedule are satisfied.
Restrictions on animal testing
10
1
No person shall supply a cosmetic product where, in order that the cosmetic product, or an ingredient or combination of ingredients might meet a requirement of these Regulations or the Directive —
a
the final formulation, or
b
an ingredient or combination of ingredients contained in the cosmetic product
has been tested on an animal using a method other than an alternative method.
2
No person shall test any ingredient or combination of ingredients on an animal in order to meet a requirement of these Regulations or the Directive using a method other than an alternative method.
3
Paragraph (1) applies only —
a
where an alternative method is listed —
i
in the Commission Regulation on test methods as specified in Article 13(2) of Regulation (EC) No. 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals ;
ii
in Annex IX to the Directive;
b
after 11th March 2013 in respect of tests concerning repeated dose toxicity, reproductive toxicity and toxicokinetics;
c
after 11th March 2009 in respect of all other tests.
4
Paragraph (2) applies only —
a
where an alternative method is listed —
i
in the Commission Regulations on test methods as specified in Article 13(2) of Regulation (EC) No. 1907/2006 ;
ii
in Annex IX to the Directive;
b
after 11th March 2009 in respect of all other tests.
5
References in paragraphs (3) and (4) to the Commission Regulation on test methods and to Annex IX to the Directive are to that Regulation and Annex as amended from time to time.
11
No person shall test a finished cosmetic product on an animal where such testing is undertaken in order that the product might satisfy a requirement of these Regulations or the Directive.
Labelling requirements
12
1
No person shall supply a cosmetic product unless the container and packaging displays the following information in indelible, easily legible and visible lettering —
a
the name or style and the address or registered office of the manufacturer or the person responsible for marketing the cosmetic product who is established within the EEA. Such information may be abbreviated in so far as the abbreviation makes it generally possible to identify the undertaking. Where the cosmetic product is manufactured outside the EEA, the country of origin must also be specified.
b
the date of minimum durability —
i
indicated by the words: ‘best used before the end of’ followed by either the date itself, or details of where it appears on the packaging;
ii
clearly expressed and consisting of either the month and year or the day, month and year in that order;
iii
supplemented, if necessary, by an indication of the conditions which must be satisfied to guarantee the stated durability;
except where the cosmetic product has a minimum durability of more than 30 months, in which case it is not mandatory to indicate the date of durability, but such a product shall have an indication of the period of time after opening for which the product can be used without any harm to the consumer. This information shall be indicated by the symbol given in Part 2 of Schedule 8 followed by the period in months or years or both months and years.
c
particular precautions to be observed in use. The ‘Conditions of use and warnings which must be printed on the label’ set out in Schedules 4, 5, 6 and 7 and any special precautionary information on cosmetic products for professional use, in particular in hairdressing, must appear on the container and packaging;
d
the batch number of manufacture or the reference for identifying the goods;
e
the function of the product, unless it is clear from the presentation of the product.
2
No person shall supply a cosmetic product unless the packaging in which it is supplied bears, in indelible, easily legible and visible lettering a list, preceded by the word ‘ingredients’ of the ingredients in descending order of weight as they are added —
a
an ingredient must be identified by the name provided for in the International Nomenclature of Cosmetic Ingredients ( INCI ) or in the absence of such identification, by its chemical name, its European Pharmacopoeia name, its International Non-proprietary name ( INN ) as recommended by the World Health Organisation, its EINECS , ELINCS or CAS identification reference or its colour index number .
b
the following shall not however be regarded as ingredients:
i
impurities in the raw materials used;
ii
subsidiary technical materials used in the preparation but not present in the final product;
iii
materials used in strictly necessary quantities as solvents or as carriers for perfumes and aromatic compositions;
c
perfume and aromatic compositions and their raw materials shall be referred to by the word ‘perfume’ or ‘aroma’.
d
the presence of substances, the mention of which is required under the column ‘other limitations and requirements’ in Schedule 4 shall be indicated in the list irrespective of their function in the product;
e
ingredients in concentrations of less than 1% may be listed in any order after those in concentrations of more than 1%;
f
colouring agents may be listed in any order after the other ingredients, in accordance with the colour index number or denomination adopted in Schedule 5;
g
for decorative cosmetic products marked in several colour shades, all colouring agents used in the range may be listed, provided that the words ‘may contain’ or ‘+/-‘ are added.
3
The particulars referred to —
a
in paragraph 1(b), (c) and (e) above shall be in English, but this shall not prohibit the additional use of other languages;
b
in paragraph (2) shall be in a language easily understood by the consumer.
4
Where two or more cosmetic products are supplied together as a single item, each product being in a separate container and the containers being enclosed together in packaging which bears clear and conspicuous instructions to the effect that the products must be mixed together in specified proportions before use, the particulars referred to in paragraph (1)(c) shall appear on an enclosed leaflet and an indication shall appear on both the containers and the packaging referring the consumer to the information in the leaflet.
13
1
Where a cosmetic product other than soap is supplied in neither a container nor packaging, the particulars referred to in paragraph (1) shall appear on the container in which the product is exposed for supply or a notice in immediate proximity to that container.
2
Where a cosmetic product has no packaging or it is impossible for practical reasons for the list of ingredients referred to in regulation 12(2) to appear on the packaging, the list shall appear on the container; and where a cosmetic product is supplied in neither a container nor packaging, the list shall appear on the container in which the product is exposed for supply or a notice in immediate proximity.
3
Where it is impossible for practical reasons for the required particulars as to the conditions of use or list of ingredients to appear on the container and packaging an enclosed leaflet, label, tape or card must contain that information to which the consumer is referred either by abbreviated information or the symbol in Part 1 of Schedule 8 which —
a
in the case of conditions of use must appear on the container and the packaging, and
b
in the case of the list of ingredients, must appear on the packaging.
4
Where it is impracticable, for reasons of size or shape, for the required particulars as to the conditions of use or list of ingredients to appear in an enclosed leaflet those particulars shall appear on a label, tag, tape or card which is enclosed or attached to the cosmetic product.
5
In the case of soap, bath balls and other small products where it is impracticable, for reasons of size or shape, for the required information as to the ingredients to appear on a label, tag, tape or card or in an enclosed leaflet, those particulars shall appear on a notice in immediate proximity to the container in which the cosmetic product is exposed for sale.
6
Where it is impossible for practical reasons for the batch number of manufacturer or the reference for identifying the goods to appear on the container and packaging because the cosmetic product is too small such information need only appear on the packaging.
14
The supply of a cosmetic product in respect of which a claim that the product or its ingredients have not been tested on animals appears on the product packaging or in any documents, notice, label, ring or collar accompanying or referring to the product is only permitted if —
a
the manufacturer and his supplier have not carried out any such tests on the finished product, its prototype or on any of the ingredients contained in the finished product or its prototype;
b
the manufacturer and his supplier have not commissioned any such tests on the finished product, its prototype or on any of the ingredients contained in the finished product or its prototype; and
c
the cosmetic product contains no ingredients which have been tested on animals by others for the purposes of developing new cosmetic products.
Responsible persons and competent authorities
15
1
A responsible person means in relation to a relevant cosmetic product —
a
the manufacturer of the product,
b
the manufacturer’s agent,
c
the person to whose order that cosmetic product is manufactured, or
d
where the manufacturer or the person to whose order the cosmetic product is manufactured is not established in the EEA and either —
i
the manufacturer has not appointed an agent, or
ii
the manufacturer’s agent is not the supplier of that cosmetic product,
the person who first supplies the cosmetic product in the EEA.
2
A “competent authority” means a body responsible for requiring and receiving the information provided for in regulations 16, 17 and 19 and granting and refusing requests for confidentiality in accordance with regulation 21, and which is —
a
a United Kingdom competent authority; or
b
a competent authority of a Member State other than the United Kingdom, having been notified as a competent authority by the Member State concerned to the Commission in accordance with Articles 7.3 and 7a.5 of the Directive and Article 10 of Directive 95/17/ EC ;
3
The United Kingdom competent authority shall be the Secretary of State provided that he may from time to time appoint such person as he thinks fit to be a United Kingdom competent authority in addition to or in substitution for himself.
Information to be made accessible to competent authority
16
1
Where a cosmetic product is manufactured or supplied in the United Kingdom a responsible person shall keep the following information easily accessible to a United Kingdom competent authority for control purposes —
a
the qualitative and quantitative composition of the product, except to the extent that the product is composed of any perfume or perfume composition, in which case the responsible person shall only be required to keep the name and code number of the perfume or perfume composition and the identity of the supplier;
b
the physico-chemical and microbiological specifications of the raw materials and the finished product and the purity and microbiological control criteria of the cosmetic product;
c
the method of manufacture which shall be in accordance with good manufacturing practice, that is to say that the cosmetic product shall be manufactured in such a way that under normal and reasonably foreseeable conditions of use it shall not endanger human health or safety;
d
a health assessment;
e
a specific health assessment in respect of cosmetic products intended for use on children under the age of 3 and for cosmetic products intended exclusively for use in external intimate hygiene;
f
the name and address of the qualified person or persons responsible for the health assessment;
g
existing data on undesirable effects on human health resulting from use of the cosmetic product;
h
proof of the effect claimed for the cosmetic product, where justified by the nature of the effect or product; and
i
data on any animal testing performed by the manufacturer, his agents or suppliers, relating to the development or safety evaluation of the product or its ingredients, including any animal testing performed to meet the legislative or regulatory requirements of countries which are not Member States ;
the information should be kept available at the address or registered office specified on the container or packaging of the cosmetic product.
2
In this regulation, “health assessment” means an assessment of the safety for human health of the finished product. The health assessment shall be carried out in accordance with the principles of good laboratory practice referred to in Article 1 of European Parliament and Council Directive 2004/10/EC on the application of the principles of good laboratory practice and the verification of their applications for tests on chemical substances and shall take particular account of the following —
a
the general toxicological profile of each ingredient used;
b
the chemical structure of each ingredient;
c
the level of exposure of each ingredient;
d
the specific exposure characteristics of the areas on which the cosmetic product will be applied; and
e
the specific exposure characteristics of the class of individuals for whom the cosmetic product is intended.
3
Without prejudice to the protection in particular of commercial secrecy and of intellectual property rights where a cosmetic product is manufactured or supplied in the United Kingdom a responsible person shall ensure that the information specified in paragraphs (1)(a) and (1)(g) shall be made easily accessible to the public by any appropriate means.
4
For the purposes of paragraph (3), the quantitative information required under paragraph (1)(a) shall be limited to information relating to dangerous substances covered by Directive 67/548/EEC .
5
Where the manufacturer manufactures a cosmetic product at two or more places within the EEA, and one of those places is within the United Kingdom, the responsible person may choose a single place of manufacture within the EEA where the information referred to in paragraph (1) will be kept available provided that, if requested by a United Kingdom competent authority, the responsible person informs the said authority of the location at which the said information is to be kept.
6
Where the information referred to in paragraph (1) is to be kept accessible to a United Kingdom competent authority it must be in English or a language readily understood by the said authority.
17
Where the place of manufacture or initial importation into the EEA of a type of cosmetic product is within the United Kingdom, the responsible person shall notify a United Kingdom competent authority of the address of the place of manufacture or, as the case may be, initial importation into the EEA of that type of cosmetic product before its first supply in the EEA.
Qualified persons
18
1
The qualified person referred to in regulation 16(1)(f) must be —
a
a person who is “appropriately qualified” within the meaning of article 11(1)(a)(i) of the Pharmacists and Pharmacy Technicians Order 2007 or any other person who has the right, granted by a competent authority of a Member State, to take up and pursue the activities of a pharmacist;
b
a person who is entitled to be registered under section 3(1) of the Medical Act 1983 as a fully registered medical practitioner and who has the right, granted by a competent authority in a Member State, to take up and pursue the activities of a doctor; or
c
the holder of a professional qualification within the meaning of regulation 7 of the European Communities (Recognition of Professional Qualifications) Regulations 2007 showing that the holder has the qualifications required to practise as a chartered biologist or as a chartered chemist or a profession equivalent to the profession of chartered biologist or chartered chemist in a Member State other than the United Kingdom.
2
Any diploma or other evidence of qualification required for the purposes of paragraph (1)(a) or (b) shall satisfy that requirement only if —
a
the education and training attested were received mainly within the EEA; or
b
the holder has spent at least three years in lawful pursuit in a Member State of the relevant profession, and such professional experience has been certified by a competent authority in a Member State (being a State which recognised a diploma or other evidence of qualification obtained in a non-Member State).
Medical treatment
19
1
A United Kingdom competent authority may, where difficulties are encountered in providing prompt and appropriate medical treatment, require any holder of appropriate and adequate information on substances used in cosmetic products to make such information available to it, where the difficulties referred to may be overcome or eased by the provision of the said information.
2
Where the information referred to in paragraph (1) is made available, the United Kingdom competent authority shall ensure that it is used solely for the purposes of the treatment referred to in paragraph (1).
Authorisation by the Secretary of State
20
1
The Secretary of State may authorise the use in a cosmetic product for a maximum period of three years of a particular substance, not being a substance or ingredient listed in Schedule 3 (substances which must not form part of the composition of cosmetic products) or Schedule 4 (substances subject to restrictions and conditions).
2
An authorisation as to the use of a particular substance in a cosmetic product may contain conditions relating to any matter which the Secretary of State considers appropriate including —
a
the purpose of the substance,
b
the type of cosmetic product,
c
the maximum concentration of the substance in any cosmetic product, and
d
information and labelling requirements.
3
The Secretary of State may on reasonable notice vary or revoke any authorisation given under paragraph (1).
4
The Secretary of State shall arrange for the authorisation, variation or revocation, as the case may be, to be published in such manner as he considers appropriate for bringing it to the attention of persons who, in his opinion, would be likely to have an interest in it.
5
The fact that a cosmetic product contains a particular substance does not constitute a contravention of these Regulations provided that at the relevant time —
a
the use of that particular substance in that cosmetic product was duly authorised; and
b
all of the conditions imposed by the authorisation were complied with.
Requests for confidentiality
21
1
A responsible person who for reasons of trade secrecy wishes not to include one or more cosmetic ingredients in the list of cosmetic ingredients referred to in regulation 12(2) shall submit a request to that effect to the competent authority.
2
In this regulation “applicant” means a responsible person who submits a request for confidentiality.
3
The applicant shall ensure that —
a
the request for confidentiality includes the particulars laid down in Part 1 of Schedule 9; and
b
any amendments to the particulars provided for in sub-paragraph (a) are communicated as quickly as possible to the competent authority and, in particular, that all changes to the names of cosmetic products containing the cosmetic ingredient in respect of which confidentiality is or has been sought, are communicated to the competent authority at least 15 days before those cosmetic products are supplied under their new names.
4
Within four months of the receipt of a request for confidentiality in respect of which the requirements of paragraph (3)(a) are satisfied, the competent authority shall examine the request and inform the applicant in writing of its decision.
5
If the competent authority decides to grant its approval to the applicant’s request it shall, in notifying the applicant of its decision, in accordance with paragraph (4), also notify the applicant of the registration number which will replace the cosmetic ingredient in question in the list referred to in regulation 12(2), the said number to be allocated to the product in accordance with the procedure provided for in Part 2 of Schedule 9.
6
If the competent authority refuses to grant its approval to the applicant’s request it shall, in its notification of this refusal, include a statement of the reasons for refusal and a clear explanation of appeals procedures and their time limits.
7
In exceptional cases the competent authority may inform the applicant in writing that a period of two months in addition to the four-month period referred to in paragraph (4) is required for the examination of the request.
8
A decision granting confidentiality shall be valid for a period of five years.
9
An applicant may, by submitting a reasoned request to the competent authority, request that the period of confidentiality referred to in paragraph (8) be extended.
10
In the event of a reasoned request being submitted in accordance with paragraph (9), the competent authority shall deal with the request in accordance with paragraphs (4), (5) and (6).
11
Any extension of the period of confidentiality shall not exceed three years.
12
The competent authority may withdraw its approval to an applicant’s request for confidentiality if it considers this appropriate taking into account —
a
any amendments to the particulars provided for in paragraph (3)(a) which are communicated to it in accordance with paragraph (3)(b); and
b
any new information which comes to its attention which makes it imperative, particularly for compelling reasons of public health, for it to so act,
and in withdrawing its approval the competent authority shall comply with the provisions of paragraphs (4), (6) and (7).
Contravention of these Regulations
22
1
For the purposes of the 1987 Act —
a
these regulations, with the exception of regulations 10, 11, 14 and 16(1)(i) are safety regulations made under section 11 of the 1987 Act;
b
regulations 10,11,14 and 16(1)(i), which are not made under the 1987 Act, shall be treated as if they were safety regulations made for all purposes under section 11 of the 1987 Act.
2
The term of imprisonment to which a person guilty of an offence of contravening a requirement of regulations 16, 17 or 19 shall be liable on summary conviction shall not exceed three months.
3
Any person guilty of an offence under paragraph (1)(b) shall be liable, on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment not exceeding three months and, on conviction on indictment, to a fine or to imprisonment not exceeding six months.
Enforcement
23
1
No proceedings shall be brought and no enforcement action taken in respect of —
a
a failure to comply with regulations 4 to 9, 12, 13, 16, 17 and 18 where the cosmetic product is supplied for the purposes of exporting that product to any country which is not a Member State; or
b
a failure to comply with regulation 12(3)(a) in any case in which the enforcement authority is satisfied that the person supplying the cosmetic product reasonably believes that it will not be used in the United Kingdom.
2
For the purposes of this regulation, “enforcement action” means action taken pursuant to or in connection with sections 13, 14, 16, 17, 28, 29, 30 or 31 of the 1987 Act.
24
Any test of goods purchased under section 28 or seized under section 29 of the 1987 Act (which relate to enforcement) by or on behalf of an enforcement authority for the purpose of ascertaining whether the provisions of these Regulations have been contravened shall in all cases be carried out in accordance with the provisions of paragraphs 2 to 5 of Schedule 10 and any test for which a method is specified in paragraph 6 of Schedule 10 shall be carried out in accordance with that method.
Proceedings
25
No proceedings for an offence under these Regulations shall be commenced after the earlier of —
a
the end of the period of three years beginning with the date of the commission of the offence, or
b
the end of the period of one year beginning with the date of the discovery of the offence by the prosecutor.
Amendment to Legislative and Regulatory Reform (Regulatory Functions) Order 2007
26
1
In the Schedule to the Legislative and Regulatory Reform (Regulatory Functions) Order 2007 , Part 3 is amended as follows.
2
In the heading “Consumer and business protection”, after the entry for the Consumer Protection from Unfair Trading Regulations 2008, insert “Cosmetic Products (Safety) Regulations 2008”.
Gareth Thomas
Parliamentary Under-Secretary of State for Trade and Consumer Affairs
Department for Business, Enterprise & Regulatory Reform
13th May 2008


text:
PART 1 INTRODUCTORY
Citation, commencement and extent
1
1
These Regulations may be cited as the Wireless Telegraphy (Licence Award) (Cardiff) Regulations 2008 and shall come into force on 5th January 2009.
2
These Regulations shall not extend to the Channel Islands or to the Isle of Man.
Interpretation
2
In these Regulations —
“applicant” means a body corporate making an application for the licence;
“associate” means, in relation to an applicant or a bidder, a person who has a material interest in that applicant or bidder;
“auction stage” has the meaning given in regulation 15(1) ;
“authorised person” means a person specified by an applicant in its application as authorised to bind that applicant for all purposes relating to the award process;
“bid form” has the meaning given in regulation 16(1) ;
“bid total” has the meaning given in regulation 18 (1);
“bidder” means an applicant which has qualified to bid in the award process and which has not withdrawn from the award process on or before the last day for withdrawal;
“bidder group” means, in relation to an applicant or bidder —
that applicant or bidder;
each associate of that applicant or bidder; and
each person in respect of whom the applicant or bidder has delivered to OFCOM a completed document in the form set out in Schedule 2;
“confidential information” means, in relation to any applicant or bidder, any information which is not in the public domain and which if it were made public, or disclosed to another applicant (or potential applicant) or bidder or a member of their respective bidder groups, would be likely to affect decisions that such other applicant (or potential applicant) or bidder may make in relation to the award process;
“electronic auction system” means the system established by OFCOM for bidders to participate in the award process;
“final round” shall be construed in accordance with regulation 18(3)(a) ;
“initial deposit” shall be construed in accordance with regulation 4(3)(b) ;
“last day for withdrawal” has the meaning given in regulation 9(1) ;
“licence” means the wireless telegraphy licence to be granted pursuant to these Regulations to establish or use a wireless telegraphy station or install or use wireless telegraphy apparatus at the site in Wenvoe, Cardiff which has the Ordnance Survey national grid reference ST110742 at the frequencies 742 to 750 megahertz for a period specified in the licence and, after that period, at the frequencies 542 to 550 megahertz.
“material interest” means, whether held directly or indirectly —
any interest (construed in accordance with sections 820 to 825 of the Companies Act 2006 ) in —
any share which carries, or any shares which together carry, more than twenty five per cent. of the votes entitled to be cast at a general meeting of the applicant or bidder; or
any share or shares in the case of which the consent of the holder of that share or those shares is required for the conduct of any business of the applicant or bidder; or
the right to appoint or remove a majority of the applicant’s or bidder’s board of directors;
“OFCOM” means the Office of Communications;
“OFCOM’s bank account” means the bank account nominated by OFCOM for the purposes of the award process, details of which are published on their internet website;
“pounds” means pounds sterling;
“round extension” has the meaning given in regulation 23 (2);
“round price” shall be construed in accordance with regulation 20 ;
“valid bid” has the meaning given in regulation 22(1) ; and
“winning bid” shall be construed in accordance with regulation 30 .
PART 2 APPLICATION STAGE
Applications for the grant of the licence
3
Applications for the grant of the licence shall only be made in accordance with the procedure set out in these Regulations.
Application
4
1
Only a body corporate may apply to OFCOM for the licence.
2
A body corporate may only make one application.
3
To apply for the licence, a body corporate must —
a
on the day specified by OFCOM for receipt of applications, deliver to OFCOM at Riverside House, 2a Southwark Bridge Road, London SE1 9HA or at 2 Caspian Point, Caspian Way, Cardiff CF10 4DQ within the times on that day specified by OFCOM a sealed envelope containing —
i
a document containing the application information required by, and the warranty set out in, Schedule 1 completed in respect of the applicant and signed on its behalf by two authorised persons;
ii
for each person, not being an associate of the applicant, which the applicant wishes to join its bidder group, a document in the form set out in Schedule 2 which has been —
aa
completed by the applicant and signed on its behalf by two authorised persons; and
bb
completed by and signed by or on behalf of the person in respect of whom that document is completed; and
b
by the deadline specified by OFCOM, pay into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the applicant, an initial deposit of ten thousand pounds.
4
OFCOM shall publish the day, times and deadline on their internet website.
PART 3 QUALIFICATION STAGE
Assessment of bidder groups
5
1
OFCOM shall give notice to each applicant of —
a
the name of each other applicant and the names of their associates; and
b
the deadline by when each applicant must notify OFCOM under paragraph (3) or (4) (as the case may be).
2
On receipt of that notice, each applicant must examine the names of the other applicants and their associates and determine whether any member of its bidder group is also an associate of another applicant or is also an applicant.
3
Where an applicant determines that a member of its bidder group is also an associate of another applicant or is also an applicant, it must notify the other applicant and OFCOM of that fact by the deadline specified by OFCOM, and OFCOM shall specify a further deadline by when each applicant concerned must —
a
notify OFCOM of any change in circumstances the effect of which is that no member of its bidder group is an associate of another applicant or is an applicant; and
b
where changes have occurred to its bidder group, provide OFCOM with versions of the documents provided under regulation 4(3)(a)(i) which comply with those provisions in the changed circumstances.
4
Where an applicant determines that no member of its bidder group is an associate of another applicant or is an applicant it must notify OFCOM of that fact by the deadline specified by OFCOM.
5
If it appears to OFCOM from any application that a member of one bidder group is also a member of another bidder group, OFCOM shall give notice to each of the applicants concerned of that fact and specify the deadline by when each applicant concerned must —
a
notify OFCOM of any change in circumstances the effect of which is that no member of its bidder group is also a member of another bidder group; and
b
where changes have occurred to its bidder group provide OFCOM with versions of the documents provided under regulation 4(3)(a)(i) which comply with those provisions in the changed circumstances.
6
OFCOM shall record the members of each applicant’s bidder group as soon as reasonably practicable after the last deadline specified by OFCOM under paragraphs (1), (3) and (5) .
Subsequent changes to bidder groups
6
1
An applicant or a bidder may change its bidder group after the recording by OFCOM of the members of each applicant’s bidder group but, in relation to the award process, the applicant shall be subject to regulation 7(2) and regulation 36 if they apply to any such change.
2
Where the change involves the addition or removal of an associate, the applicant or bidder must notify OFCOM of the change and submit a version of the documents provided under regulation 4(3)(a)(i) which comply with those provisions in the changed circumstances.
3
To add a person who is not an associate of the applicant or bidder to its bidder group, the applicant or bidder must deliver to OFCOM a document in the form set out in Schedule 2 completed by the applicant or bidder and signed on its behalf by two authorised persons and completed by and signed by or on behalf of the person in respect of whom that document is completed.
Determination of applicants which are qualified to bid
7
1
OFCOM shall determine whether each applicant which has submitted an application in accordance with regulation 4 is qualified to bid in the award process.
2
An applicant shall not be qualified to bid in the award process if a member of its bidder group is also a member of another applicant’s bidder group.
3
In making their determination under paragraph (1) OFCOM shall take into account whether —
a
the grant of the licence to the applicant would be prejudicial to the interests of national security;
b
the applicant is a fit and proper person to hold the licence having regard to the probity of —
i
the applicant;
ii
each member of the applicant’s bidder group; and
iii
each director of each member of the applicant’s bidder group;
c
any of the information submitted to OFCOM by the applicant in connection with the award process is false or misleading;
d
any member of the applicant’s bidder group has colluded or attempted to collude, or is colluding or attempting to collude, with another person to distort the outcome of the award process;
e
any member of the applicant’s bidder group has acted or is acting in a way which is likely to distort the outcome of the award process;
f
any member of the applicant’s bidder group, or any person to whom confidential information has been disclosed, has disclosed, or is disclosing or attempting to disclose, or has incited or is inciting another person to disclose, any confidential information, whether directly or indirectly, to any person, except where the disclosure is —
i
to OFCOM;
ii
to a member of the applicant’s bidder group;
iii
to a provider of finance for the purpose of raising finance for the applicant’s application; or
iv
to a person for the purpose of enabling that person to decide whether to participate as a member of the applicant’s bidder group;
g
any member of the applicant’s bidder group has obtained, is obtaining or attempting to obtain confidential information relating to another applicant;
h
any member of the applicant’s bidder group is receiving or is attempting to receive services in relation to the award process from any person who has provided or is providing services to OFCOM in relation to the award process; and
i
any person who is a member or a director or employee of a member of the applicant’s bidder group and is also a director or employee of a member of another bidder group is —
i
taking part in the preparation of both bidder groups for participation in the award process; or
ii
receiving confidential information relating to both bidder groups.
4
Applicants must, if requested to do so by OFCOM, provide by a deadline specified by OFCOM any information or documentation which OFCOM reasonably require to make their determination.
5
If an applicant does not provide such information or documentation by the deadline specified by OFCOM, OFCOM shall also take that fact into account in making their determination.
6
Where OFCOM determine that an applicant is not qualified to bid in the award process, that applicant’s initial deposit shall not be forfeited for that reason.
Publication of determination
8
1
OFCOM shall notify each applicant of their determination under regulation 7(1) .
2
OFCOM shall also notify each applicant qualified to bid of the name of each other applicant which is so qualified and shall publish the names of all applicants which are qualified to bid on OFCOM’s internet website.
Withdrawal of an application
9
1
OFCOM shall notify each applicant qualified to bid of the last day for withdrawal from the award process (“last day for withdrawal”) and shall publish the last day for withdrawal on OFCOM’s internet website.
2
If, on or before the last day for withdrawal, OFCOM receive notice of an applicant’s intention to withdraw its application, signed by two authorised persons of that applicant, the application shall be withdrawn and the applicant shall be excluded from the award process and OFCOM shall notify all other applicants of the withdrawal.
3
Where an applicant withdraws its application in accordance with paragraph (2) —
a
that applicant shall not be re-admitted to the award process; and
b
that applicant’s initial deposit shall not be forfeited for that reason.
Determination of number of bidders
10
1
After the last day for withdrawal, OFCOM shall determine the number of bidders.
2
Where there are no bidders, OFCOM shall complete the award process by refunding to applicants which were not qualified, or withdrew in accordance with regulation 9 , the initial deposits (where such deposits have not been forfeited under regulation 36 ) but not any interest which has accrued on the deposits.
3
Where there is only one bidder, OFCOM shall grant the licence in accordance with the procedure set out in Part 4 of these Regulations.
4
Where the number of bidders is more than one, OFCOM shall grant the licence in accordance with the procedure set out in Part 5 of these Regulations.
5
OFCOM shall publish the names of the bidders on OFCOM’s internet website together with a statement of whether OFCOM will proceed to grant the licence in accordance with Part 4 or Part 5 (as the case may be) of these Regulations.
PART 4 PROCEDURE WHERE THERE IS ONLY ONE BIDDER
Payment of licence fee
11
1
Where there is only one bidder and where the initial deposit of that bidder has not been forfeited in accordance with regulation 36, OFCOM shall grant the bidder the licence.
2
Where there is only one bidder and where the initial deposit has been forfeited in accordance with regulation 36, OFCOM shall give notice to that bidder of the deadline by which that bidder must pay into OFCOM’s bank account with accompanying information that identifies the bidder, the licence fee.
3
The licence fee shall be ten thousand pounds.
Failure to pay licence fee
12
If the bidder fails to make payment in accordance with regulation 11 (2), it shall not be granted the licence.
Grant of licence
13
Where OFCOM receive payment from a bidder to which regulation 11(2) applies in accordance with that regulation, OFCOM shall grant the bidder the licence.
Completion of the award process
14
After the grant of the licence, OFCOM shall complete the award process by– —
a
publishing on their internet website the name of the bidder to which the licence has been granted; and
b
refunding to applicants which were not qualified, or withdrew in accordance with regulation 9 , the initial deposits (where such deposits have not been forfeited under regulation 36) but not any interest which has accrued on the deposits.
PART 5 PROCEDURE WHERE THERE IS MORE THAN ONE BIDDER
CHAPTER 1
Auction stage
Auction stage
15
1
Where there is more than one bidder, the process for the award of the licence shall consist of the procedure set out in this Part (“auction stage”).
2
A bid made during the auction stage shall be a bid for the licence.
3
During the auction stage there shall be one or more rounds for the making of bids.
CHAPTER 2
Bids
Bid requirements
16
1
In order to make a bid a bidder must, on a form provided to the bidder by OFCOM (“bid form”), specify the amount that it is willing to pay for the licence.
2
The amount of the bid shall be determined by the bidder, subject to the restrictions set out in regulation 21 .
3
A bidder must not submit more than one bid in any one round.
Requirement for a valid bid in the first round
17
1
Any bidder which does not submit a valid bid in the first round shall be excluded from the award process and shall not receive a refund of its initial deposit nor any sum that the bidder has paid as a deposit under regulation 29, which shall (where not already forfeited under regulation 36) be forfeited.
2
Where there are no valid bids in the first round, there shall be no subsequent rounds and there shall be no winning bidder.
Number of rounds
18
1
After each round, OFCOM shall determine the total number of valid bids submitted at an amount equal to the round price for that round (“bid total”).
2
Where the bid total is more than one there shall be another round.
3
Where the bid total is one or zero or where there are no valid bids —
a
that round shall be the final round; and
b
OFCOM shall determine the winning bid and licence fee in accordance with regulation 30 .
Participation in subsequent rounds
19
Where there is another round in accordance with regulation 18(2) , a bidder may make a bid in that round only if it made a valid bid in the previous round at an amount equal to the round price.
Determination of round prices for rounds
20
1
In the first round, the round price shall be fifteen thousand pounds.
2
In subsequent rounds, the round price shall be determined by OFCOM in accordance with paragraphs (3) and (4) .
3
The round price shall be higher than the round price in the previous round.
4
The round price shall not be more than twice the round price in the previous round.
Amount of bids
21
1
A bid made during the first round shall be at an amount in whole pounds that is —
a
at least ten thousand pounds; and
b
not more than the amount of the round price for the first round.
2
A bid made during a subsequent round shall be at an amount in whole pounds that is —
a
more than the amount of the round price for the preceding round; and
b
not more than the amount of the round price for that round.
Valid bids
22
1
A bid shall only be taken into consideration for the purposes of determining —
a
the bid total in accordance with regulation 18(1) ;
b
the winning bid in accordance with regulation 30(2) ; and
c
the licence fee payable by the winning bidder in accordance with regulation 30(5)
if it satisfies the conditions set out in paragraph (2) (“valid bid”).
2
The conditions are that —
a
the bid is made on a bid form that has been completed in accordance with regulation 16(1) ;
b
the bid is submitted in accordance with the restriction set out in regulation 16(3) ;
c
the bidder complies with regulation 19 and 21;
d
the completed bid form is submitted to OFCOM in accordance with regulation 24(1) and is received by OFCOM in accordance with regulation 24(2) ; and
e
if regulation 26 applies, the bid is not rejected in accordance with regulation 26(3).
CHAPTER 3
Procedure for rounds
Notice to bidders
23
1
Before the start of a round, OFCOM shall notify each bidder of —
a
the day on which, and the times on that day during which, subject to paragraph (2) , the round will be held; and
b
the round price for that round.
2
The time notified by OFCOM under paragraph (1) (a) as the end of the round may be treated by a bidder in respect of —
a
no more than two rounds; and
b
for each round in respect of which paragraph (3) applies to the bidder, a further round,
as that time extended by thirty minutes, and OFCOM shall treat that extended time as the end of the round for the purposes of paragraph (1) (a) (“round extension”).
3
This paragraph applies to a bidder where —
a
in respect of a previous round, the bidder treated the end of that round as extended by thirty minutes in accordance with paragraph (2) ;
b
the bidder submitted its completed bid form for that round so that it was received by OFCOM by the end of the round so extended; and
c
OFCOM have notified the bidder that they are satisfied that, in respect of that round, circumstances existed which were beyond the bidder’s control which had the effect that the bidder could not have submitted its bid form so that it was received by OFCOM by the end of the round without such an extension.
4
Where there is a round extension in accordance with paragraph (2) , OFCOM shall notify bidders when the round has been extended and when it has been concluded.
Submission of bid form to OFCOM
24
1
Except as provided for in regulation 25 , a bidder must submit the completed bid form to OFCOM by using the electronic auction system.
2
The completed bid form must be received by OFCOM by the time notified by OFCOM under regulation 23(1)(a) as the end of that round.
Alternative method for submission of bid form
25
1
Where OFCOM are satisfied that a bidder is unable to submit a bid form by using the electronic auction system because of technical failure (or an event or circumstance with similar effect on the bidder’s ability to use the electronic auction system), OFCOM shall notify the bidder of an alternative method of submitting the bid form and any requirements relating to the authentication of communications made by means of the alternative method.
2
The bidder must submit the bid form by means of the alternative method and must comply with any requirements which have been notified to it under paragraph (1) relating to the authentication of communications.
Incomplete or defective bid forms
26
1
Where, due to the manner of completion, a bid form is incomplete or defective but OFCOM believe that they can ascertain the bidder’s intention in relation to the making of the bid, OFCOM shall ask the bidder to confirm in a notice to OFCOM by a specified deadline that OFCOM have correctly ascertained the bidder’s intention in relation to the making of the bid.
2
Where the bidder confirms in a notice given to OFCOM by the specified deadline which is signed by two authorised persons of that bidder that OFCOM have correctly ascertained the bidder’s intention, the bid form in its entirety shall be accepted by OFCOM on that basis.
3
Where the bidder does not give such confirmation, the bid form in its entirety shall be rejected by OFCOM and the bid submitted on the bid form shall not be a valid bid.
Notification that bid is not valid
27
Where a bidder submits a bid that is not a valid bid during a round OFCOM shall, after the end of that round, notify the bidder of that fact and shall give the reasons why the bid is not a valid bid.
Release of information on bids
28
After the end of a round and before the start of a subsequent round, OFCOM shall notify each bidder of the number of bidders in that round that made —
a
a valid bid at the round price for that round; and
b
a valid bid at an amount less than the round price for that round.
Further deposit for subsequent rounds
29
1
Where, in respect of a bid, the amount specified by a bidder is greater than the total amount that the bidder has on deposit OFCOM may, having regard to the desirability of securing an efficient outcome of the auction stage, subsequently notify the bidder that the bidder is required to pay a further sum in pounds as a deposit.
2
The further sum shall be an amount such that the total amount that the bidder has on deposit is not less than the amount of the highest valid bid that the bidder made before OFCOM gave notice to the bidder under paragraph (1) .
3
Any such sum shall be paid into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the bidder, by a deadline specified by OFCOM.
4
Where a bidder does not satisfy the requirements set out in paragraph (3) , OFCOM shall notify the bidder of that fact, and following notice being given under this paragraph the bidder shall not submit a bid in any subsequent round.
CHAPTER 4
Determination of winning bid, grant of licence and completion of award process
Determination of the winning bid and the licence fee
30
1
Following the final round, OFCOM shall determine the winning bid and the identity of the winning bidder.
2
Subject to paragraph (3) , the winning bid shall be the highest valid bid made in the auction stage.
3
Where there is more than one valid bid of equal highest value, OFCOM shall employ a method of random selection amongst those bids to determine which shall be the winning bid.
4
The winning bidder shall be the bidder which submitted the winning bid.
5
Subject to paragraph (6) , the licence fee shall be the amount of the highest valid bid in the auction stage that was not made by the winning bidder.
6
Where there is only one valid bid in the first round, the licence fee shall be ten thousand pounds.
Notification of results of the auction stage
31
OFCOM shall notify the winning bidder of the winning bid and the licence fee.
Procedure where amount of winning bidder’s deposit is less than the licence fee
32
1
Where the amount of the winning bidder’s deposit (including the initial deposit and any sum paid as a deposit under regulation 29, but not including any sum forfeited under regulation 36 ) is an amount that is less than the amount of the licence fee calculated in accordance with regulation 30 —
a
OFCOM shall notify the bidder of a deadline by when the bidder must comply with sub-paragraph (b) ; and
b
the winning bidder must by that deadline pay into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the winning bidder, a sum in pounds calculated in accordance with paragraph (2) .
2
The sum which the bidder must pay to OFCOM shall be the difference between the amount of the licence fee calculated in accordance with regulation 30 and the amount of the winning bidder’s deposit (including the initial deposit and any sum paid as a deposit under regulation 29, but not including any sum forfeited under regulation 36 ).
3
Where the winning bidder has satisfied the requirement set out in paragraph (1)(b) , OFCOM shall grant the winning bidder the licence.
4
Where the winning bidder has not satisfied the requirement set out in paragraph (1) (b) , that bidder —
a
shall not be entitled to the grant of the licence under these Regulations; and
b
shall not receive a refund of its initial deposit and any sum paid as a deposit under regulation 29, which shall (where not already forfeited under regulation 36 ) be forfeited.
Procedure where amount of winning bidder’s deposit is greater than or equal to the licence fee
33
1
Where the amount of the winning bidder’s deposit (including the initial deposit and any sum paid as a deposit under regulation 29, but not including any sum forfeited under regulation 36 ) is greater than or equal to the amount of the licence fee calculated in accordance with regulation 30 , OFCOM shall —
a
grant the winning bidder the licence; and
b
refund to the winning bidder a sum in pounds calculated in accordance with paragraph (2) .
2
The sum which OFCOM shall refund to the winning bidder shall be the difference (if any) between the amount of the winning bidder’s deposit (including the initial deposit and any sum paid as a deposit under regulation 29, but not including any sum forfeited under regulation 36 ) and the amount of the licence fee calculated in accordance with regulation 30 , but not any interest which has accrued on the deposit.
Licences not awarded
34
1
Where OFCOM do not grant the licence to the winning bidder because that bidder has failed to make payment in accordance with regulation 32(1)(b), OFCOM shall select the appropriate bidder (from among the remaining bidders) which should next be offered the licence in accordance with the order of precedence set out in paragraph (3) and OFCOM shall follow paragraphs (5) and (6) of regulation 30 but having regard only to valid bids made by the remaining bidders to determine the licence fee and the procedures in regulation 31 and either regulation 32 or 33 (as the case may be) in order to receive payment of the licence fee and grant the licence.
2
Should that bidder fail to make payment, OFCOM shall follow the same procedure to offer the licence to the next bidder in the order of precedence until the licence is awarded or the list of remaining bidders is exhausted.
3
The order of precedence amongst the list of remaining bidders shall be determined by the amount of the highest valid bid made by each of those bidders such that higher amounts shall prevail over lower amounts and, where the highest valid bids of any two or more bidders are for equal amounts, OFCOM shall employ a method of random selection to determine the precedence among those bidders.
Completion of the award process
35
After the grant of the licence, OFCOM shall complete the award process by —
a
publishing on their internet website details of all valid bids made by each bidder, the name of the person to whom the licence was granted, and the amount of the licence fee paid; and
b
refunding to —
i
applicants which were not qualified or which withdrew in accordance with regulation 9 ; and
ii
bidders which were not the winning bidder;
the initial deposit and any sum paid as a deposit under regulation 29 (where such deposits have not been forfeited under regulation 36 ) but not any interest which has accrued on the deposits.
PART 6 ACTIVITY RULES
Forfeit of deposit and exclusion from award process
36
If, in relation to an applicant which is qualified to bid or a bidder, OFCOM are satisfied that any of the events set out in regulation 37 are occurring (or have occurred) and that the occurrence would materially affect the outcome of the award process —
a
the initial deposit and any sum or sums paid as a deposit under regulation 29 shall be forfeited by, and not refunded to, the applicant or bidder concerned; and
b
that applicant or bidder may also be excluded by OFCOM from the award process by OFCOM giving that applicant or bidder notice in writing.
Events
37
The events referred to in regulation 36 , in relation to an applicant or bidder, are —
a
the submission to OFCOM of any information in connection with the award process which is false or misleading;
b
any member of that applicant’s or bidder’s bidder group colluding or attempting to collude with another person to distort the outcome of the award process;
c
any member of that applicant’s or bidder’s bidder group acting in a way which is likely to distort the outcome of the award process;
d
any member of that applicant’s or bidder’s bidder group, or any person to whom confidential information has been disclosed, disclosing, or attempting to disclose, or inciting another person to disclose, any confidential information, whether directly or indirectly, to any person, except where the disclosure is —
i
to OFCOM;
ii
to a member of that applicant’s or bidder’s bidder group;
iii
to a provider of finance for the purpose of raising finance for a bid; or
iv
to a person for the purpose of enabling that person to decide whether to participate as a member of the applicant’s or bidder’s bidder group;
e
any member of that applicant’s or bidder’s bidder group obtaining or attempting to obtain confidential information relating to another applicant or bidder;
f
any member of that applicant’s or bidder’s bidder group receiving or attempting to receive services in relation to the award process from any person who has provided or is providing services to OFCOM in relation to the award process;
g
any person who is a member or a director or employee of a member of that applicant’s or bidder’s bidder group and also a director or employee of a member of another bidder group —
i
taking part in the preparation of both bidder groups for participation in the award process; or
ii
receiving confidential information relating to both bidder groups;
h
a member of that applicant’s or bidder’s bidder group is or becomes a member of another applicant’s or bidder’s bidder group;
i
a change occurring in the membership of that applicant’s or bidder’s bidder group from that notified to OFCOM in its application except as a result of —
i
a person ceasing to be a member of that bidder group;
ii
a person joining that bidder group under the procedure in regulation 6(3) ;
iii
a person becoming an associate through merger or acquisition activity provided that such activity is not for a purpose related to the award process.
PART 7 MISCELLANEOUS
General power of exclusion
38
OFCOM may, at any time, notify any applicant or bidder of its exclusion from the award process if, in their opinion, the grant of the licence to that applicant or bidder would be prejudicial to the interests of national security or the applicant or bidder is not a fit and proper person to hold the licence.
Notification to OFCOM
39
If, in accordance with any provision of these Regulations, an applicant or bidder is required, or wishes, to notify OFCOM of any fact or circumstance, it must do so by notice in writing which is marked for the attention of the OFCOM personnel who are specified by OFCOM for that purpose on OFCOM’s internet website and must deliver that notice to OFCOM —
a
by electronic mail to an electronic mail address dedicated to the award process which is published by OFCOM on their internet website;
b
by personal delivery to Riverside House, 2a Southwark Bridge Road, London, SE1 9HA; or
c
by fax to a number dedicated to the award process which is published by OFCOM on their internet website.
Changes to timing or location
40
1
Paragraph (2) applies where OFCOM determine that it is impracticable for any reason —
a
for any document which is to be delivered to OFCOM under these Regulations to be delivered at the place specified or by the deadline specified under these Regulations; or
b
for any action which is required to be undertaken in accordance with these Regulations to be completed by the deadline specified.
2
Where this paragraph applies, OFCOM shall take all reasonable steps to notify the applicants or bidders (as the case may be) that —
a
delivery must be made on a different day or within different times on that day or at a different place;
b
the action must be completed on a different day or by a different deadline.
Changes to round times and use of electronic auction system
41
1
Where a time for the start of a round has been notified to bidders and OFCOM determine that it is impracticable for any reason to start the round at that time, OFCOM shall take all reasonable steps to notify bidders of a revised time for the start of the round.
2
Where a time for the end of a round has been notified to bidders and OFCOM determine that it is impracticable for any reason for the round to end at that time, OFCOM shall take all reasonable steps to notify bidders of a revised time for the end of the round.
3
Where OFCOM determine that it is impracticable for any reason to use the electronic auction system for any of the purposes specified in Part 5 of these Regulations, OFCOM shall take all reasonable steps to notify bidders of an alternative method of participating in the award process and any requirements relating to the authentication of communications made by means of the alternative method.
4
Bidders must use the alternative method of participating in the award process in accordance with a notification under paragraph (3) .
Rerunning rounds
42
1
Where a round is in progress and OFCOM determine that it is not possible to continue the round because of technical failure (or an event or circumstance with similar effect on the continuation of the round), OFCOM shall —
a
notify bidders of their determination;
b
disregard the bids made in that round;
c
resume the award procedure from the end of the previous round (or, if there was no previous round, from the start of the first round).
2
Where OFCOM determine that it is not possible to continue the award process in accordance with the provisions of Part 5 of these Regulations because of technical failure (or an event or circumstance with similar effect on the continuation of the award process), OFCOM may, in order to secure a fair and efficient outcome —
a
disregard bids made in one or more rounds; and
b
resume the award process from the end of the latest round for which bids are not disregarded under sub-paragraph (a) , or, where all bids are to be disregarded under that sub-paragraph, to resume the award process from the start of the first round.
3
OFCOM shall notify bidders of their determination under paragraph (2).
Refunds
43
OFCOM may, in such cases as they think fit, refund, in whole or in part, sums which have been paid to them in accordance with any provision of these Regulations.
Philip Rutnam
Partner, Spectrum Policy
for and by authority of the Office of Communications
15 December 2008