European Union (Accessibility Requirements of Products and Services) Regulations 2023, enforcement: corrective action, withdrawal and restriction of products, directions, appeals, court orders, consumer applications, authorised officers, offences and complaints

Regulation 4(3) makes each compliance authority responsible for checking compliance of the service for which it is the compliance authority. These provisions give effect to Articles 19 to 23, 29 and 30 of Directive (EU) 2019/882, which require adequate and effective means to ensure compliance, including provisions whereby a consumer may take action before the courts, and penalties that are effective, proportionate and dissuasive.

Regulation 4(4) requires the National Disability Authority to advise a relevant authority on matters related to the accessibility requirements. Where the market surveillance authority has sufficient reason to believe that a product does not comply, it evaluates the product and, if it finds non-compliance, directs the economic operator to take all appropriate corrective action within the period it specifies.

If the economic operator fails to take adequate corrective action within that period, the authority directs it to withdraw the product from the market. If adequate corrective action is still not taken, the authority takes provisional measures to prohibit or restrict the product being made available on the market in the State, or to withdraw it from that market.

Where the CE marking is missing or wrongly affixed, the EU declaration of conformity is missing or incorrect, the technical documentation is unavailable or incomplete, or the identification particulars are absent, false or incomplete, the authority directs the economic operator to end the non-compliance and may then restrict or prohibit the product being made available in the State or withdraw it.

Where a relevant compliance authority finds that a service does not comply, it directs the economic operator to take all appropriate corrective action to bring the service into compliance within the period it specifies. Before giving a direction, a relevant authority must give the economic operator notice of the proposal and allow it 14 days from receipt to make written representations.

An economic operator to which a direction has been given must comply within the period specified and notify the authority in writing no later than 7 days after that period ends. An economic operator that is the subject of a direction or measure may appeal to the District Court by written notice lodged not later than 14 days from the date the direction was given or the notice of the measure was served.

An appeal does not suspend the direction or measure, but the District Court may suspend it on application until the appeal is determined or withdrawn. The measures that may be appealed are the provisional measures under Regulation 21(7) and the measures under Regulations 21(12), 22(1)(a) and 23(3). A relevant authority may apply to the Circuit Court for an order directing compliance where an economic operator has not complied with a direction.

A consumer who believes that an economic operator has failed or is failing to comply with a requirement of the Regulations may apply to the Circuit Court for an order directing compliance. On a consumer's application the court may declare that the economic operator has failed to comply, require compliance in the manner and within the period it specifies, and impose other conditions.

A public body or private association, organisation or other legal entity with a legitimate interest in ensuring that the Regulations are complied with may, with the consumer's approval, engage on behalf of or in support of a consumer who makes such an application. A relevant authority may appoint persons to be authorised officers for the purposes of ensuring compliance with the Regulations.

An authorised officer may, where necessary and justified, enter any premises or place where there are reasonable grounds to believe that an activity relating to the manufacture, import or distribution of a product, or the provision of a service, to which the Regulations apply is or has been carried on or that records of it are kept, and search and inspect the premises or place and any products, records or services found there.

An authorised officer needs the occupier's consent or a District Court warrant to enter a private dwelling.

Regulation 32 makes it an offence to fail to comply with Regulation 5(1), paragraph (4) or (9) of Regulation 15, Regulation 17, Regulation 21(2) or Regulation 24(3), to fail to comply with paragraphs (1) to (4) of Regulation 19 or affix a non-conforming CE marking, to fail to comply with a direction within the period specified, and to fail without reasonable excuse to comply with an order under Regulation 29 or 30.

Regulation 31(13) provides that a person shall not obstruct or interfere with an authorised officer, without reasonable excuse fail to comply with a request from an authorised officer, or make a statement to the officer which the person knows is false or misleading.

It is an offence to contravene a requirement of Regulation 31(13), and an offence to furnish information to a relevant authority, in purported compliance with a requirement under the Regulations, that the person knows or ought reasonably to know is false or misleading in a material respect.

An offence under the Regulations is punishable on summary conviction by a class A fine or imprisonment for up to 6 months or both, and on conviction on indictment by a fine of up to EUR 60,000 or imprisonment for up to 18 months or both. A class A fine is a fine not exceeding EUR 5,000. In imposing a penalty the court must have regard to the seriousness of the failure, the number of units of products or services to which it related and the number of persons affected.

A director, manager, secretary or other officer of a body corporate commits the offence as well as the body where it was committed with that person's consent, connivance or approval or is attributable to that person's wilful neglect. It is a defence for the person charged to prove that the person exercised due diligence and took all reasonable precautions to avoid the commission of the offence.

Summary proceedings may be brought by the Competition and Consumer Protection Commission, the Commission for Communications Regulation, the Central Bank of Ireland, the National Transport Authority, the Irish Aviation Authority or Coimisiún na Meán, each for the functions it exercises under the Regulations.

Regulations 29, 30 and 32 do not apply to procurement procedures subject to the European Union (Award of Public Authority Contracts) Regulations 2016 or the European Union (Award of Contracts by Utility Undertakings) Regulations 2016. Regulation 41 includes among the functions of a relevant authority the consideration of complaints that a product, service or economic operator has not complied with the Regulations.

A complaint about a product is considered by the market surveillance authority, and a complaint about a service by the relevant compliance authority.