EU
Legislation (Official Controls) (Jersey) Regulations 2020
PART 1
general
1 Interpretation
(1) In
these Regulations –
“customs officer” means
the Agent of the Impôts or any other officer of the Impôts;
“designated officer” means
a person designated by the Minister under Regulation 4(1) or a person
listed in Regulation 4(3);
“Minister” means the
Minister for the Environment;
“Official Controls
Regulation” means Regulation (EU) 2017/625 of the
European Parliament and of the Council on official controls and other official
activities performed to ensure the application of food and feed law, rules on
animal health and welfare, plant health and plant protection products (OJ L
95, 7.4.2017, p. 1);
the Plant Health Regulations.
(2) Unless
the context otherwise requires –
(a) a reference to a member
State is to be construed as including the United Kingdom, Jersey, Guernsey and
the Isle of Man;
(b) terms used in these
Regulations and in the Official Controls Regulation have the same meaning as in
that Regulation;
(c) a reference in these
Regulations to the Official Controls Regulation is to be construed as a
reference to that Regulation as amended, substituted, extended or applied from
time to time by any other EU provision, or as it otherwise has effect in the EU
from time to time by virtue of any judgment of the European Court; and
(d) a reference in these
Regulations to the Official Controls Regulation is to be construed as including
any implementing act or delegated act (within the meaning given in Articles 290
and 291 of the Treaty on the Functioning of the European Union) adopted by
the Commission under or in relation to the Official Controls Regulation or for
which the legal basis otherwise is or includes the Official Controls Regulation.
2 Application of the Official Controls Regulation
(1) The
Official Controls Regulation has effect in Jersey.
(2) The
Official Controls Regulation has effect as if any reference to a member State
includes a reference to the United Kingdom, Jersey, Guernsey and the Isle of
Man.
3 Designation of competent authority
The Minister is
designated as the competent authority in respect of the areas governed by rules
listed in Article 1(2)(a) to (j) of the Official
Controls Regulation.
4 Appointment of designated officers
(1) The Minister may, in respect of the
designation under Article 4 of the Official Controls Regulation, appoint
in writing persons as officers authorised to exercise functions under these
Regulations or the Official Controls Regulation.
(2) Upon request, a designated officer must
produce evidence of appointment under this Regulation when exercising functions
under these Regulations or the Official Controls Regulation.
(3) In addition to persons designated under
paragraph (1), the following are designated officers for the purposes of these
Regulations –
(a) the States Veterinary
Officer appointed under the Animal Health (Jersey) Law 2016 and any inspector appointed
under Article 6 of that Law;
(b) any plant health inspector
authorised under the Plant Health (Jersey) Law 2003;
(c) any health inspector
authorised under the Loi (1934) sur la Santé Publique.
PART 2
functions of competent authority and designated
officers
5 Confidentiality and records
(1) The Minister must ensure that
arrangements are in place –
(a) to maintain appropriate
confidentiality in relation to the official controls and other official
activities undertaken; and
(b) to enable the reporting
of actual, potential or suspected non-compliance with the Official Controls Regulation.
(2) The Minister may –
(a) keep and maintain
such –
(i) registers and records,
(ii) lists of designated,
recognised, authorised or approved bodies, councils, agencies, laboratories or
like establishments (however described), or sites, facilities and stations
(however described), and
(iii) lists or records of
officers or other individuals appointed or permitted to perform official
controls and other official activities on his or her behalf (including
authorisations to issue official certificates or official attestations);
(b) grant, issue, amend,
suspend, withdraw and revoke such authorisations, consents, licences,
certificates, attestations, approvals or like permissions;
(c) publicise such
information (including on the internet); and
(d) take such other action,
as he or she considers to be necessary or expedient to enable the
Minister to discharge his or her functions under the Official Controls Regulation
and these Regulations.
6 Policies and guidance
The Minister may make available to the public, in a manner and form the
Minister considers appropriate, any policies and guidance the Minister intends
to take into account in exercising functions under the Official Controls Regulation
and these Regulations.
7 Audits
(1) The Minister must make arrangements from
time to time for an audit of his or her functions as the competent authority.
(2) The Minister may, in writing, appoint an
auditor and, during the term of the appointment and the conduct of the audit,
the auditor is a competent authority under the Official Controls Regulation for
the purposes of performing functions under these Regulations.
(3) Upon request, an auditor must produce
evidence of appointment under this Regulation when exercising functions under
these Regulations.
(4) The Minister must provide such assistance
to the auditor as is reasonably required in order for the auditor to carry out
the audit effectively.
(5) The auditor must produce an audit report in
such form as he or she considers to be appropriate and send a copy of the
report to the Minister.
(6) In this Regulation –
“audit” means an audit of a competent authority carried out for the
purposes of Article 6 of the Official Controls Regulation;
“auditor” means a person conducting an audit appointed under
Regulation 7.
8 Limitation of civil liability
(1) A person or
body to whom this Regulation applies is not liable in damages for anything done
or omitted in the execution or purported execution of any function under these
Regulations unless it is shown that the act or omission was in bad faith.
(2) This Regulation
applies to the Minister, a designated officer or any
other person authorised to carry out a function under the Official Controls
Regulation or these Regulations.
(3) Paragraph (1) does not apply so as to
prevent an award of damages in respect of the act on the ground that it was
unlawful as a result of Article 7(1) of the Human Rights (Jersey) Law 2000.
PART 3
general powers of designated officers
9 Powers of entry
(1) A designated officer may enter any premises
at a reasonable time for any of the following purposes –
(a) performing official
controls to verify that –
(i) an operator is complying with the Official
Control Regulation,
(ii) a person is complying
with these Regulations, or
(iii) any animals, goods or
other objects which are subject to rules and requirements under the Official
Control Regulation comply with those rules or requirements;
(b) carrying out other
official activities which are to be performed by the Minister under the
Official Control Regulation;
(c) enforcing the Official
Control Regulation or these Regulations;
(d) verifying information
supplied by a person in connection with the conduct of official controls or
other official activities.
(2) Before entering any premises for the
purposes specified in paragraph (1), a designated officer must, if
requested to do so, produce a document showing that he or she is a designated officer
and any warrant issued under Regulation 10.
(3) Paragraph (1) does not apply to any
premises which are used wholly or mainly as a private dwelling unless 24 hours’
notice has been given to the occupier.
(4) A designated officer who enters premises
for a purpose specified in paragraph (1) or under a warrant issued by the
Bailiff may –
(a) examine, photograph or
mark any part of the premises, any object on the premises or anything that is
attached to or otherwise forms part of the premises;
(b) take samples of or from –
(i) any animal, good or other object,
(ii) any container, package
or object which has been or may have been in contact with an animal, good or
other object, or
(iii) any substance or
material;
(c) open any container or
package or require the owner, occupier or other person in charge of any
container or package to open the container or package; or
(d) inspect or make copies of
any documents or records (in whatever form they may be held) relating to the
animal, good or other object.
(5) A designated officer may destroy or
otherwise dispose of any sample taken under this Regulation when the sample is
no longer required.
(6) A designated officer may –
(a) be accompanied by –
(i) a representative of the European Commission
or an authorised officer of any competent authority designated in Union
territory for the purpose of the Official Controls Regulation, or
(ii) such other persons as
the designated officer considers necessary; and
(b) bring onto the premises
such equipment and vehicles as the designated officer considers necessary.
(7) A designated officer who is accompanied by
a person mentioned in paragraph (6)(a) may –
(a) show the person any
documents or records which are inspected or copied by the inspector under
paragraph (4)(d); and
(b) make copies, or require
copies to be made, of those documents or records for that person.
(8) A person accompanying a designated officer
under paragraph (6)(a) may –
(a) bring onto the premises
any equipment or vehicles that the person considers necessary; and
(b) perform any function
under these Regulations or the Official Controls Regulations on the premises in
a manner directed by a designated officer.
10 Right of entry conferred by a warrant issued by the Bailiff
(1) The Bailiff may, by warrant, permit a
designated officer to enter premises for a purpose mentioned in Regulation 9(1),
if necessary by reasonable force, if the Bailiff, on sworn information in
writing, is satisfied that –
(a) there are reasonable
grounds to enter those premises; and
(b) any of the conditions in
paragraph (2) are met.
(2) The conditions are that –
(a) entry to the premises has
been, or is likely to be, refused and notice of the intention to apply for a
warrant has been given to the occupier;
(b) asking for admission to
the premises, or giving notice of the intention to apply for a warrant, would
defeat the object of the entry;
(c) entry is required
urgently; or
(d) the premises are
unoccupied or the occupier is temporarily absent.
(3) A designated officer who enters any
unoccupied premises under a warrant under this Regulation must leave them as
effectively secured against unauthorised entry as they were before entry.
11 Notices
(1) A designated officer may by notice in
writing require an appropriate person to provide, within the time specified in
the notice, any information which the person may possess in relation to the
premises specified in the notice as to –
(a) the animals, goods or
other objects stored at any time on those premises;
(b) any animal disease or any
other risk or hazard to animal or plant health, animal welfare or the
environment; or
(c) any persons who have had,
or are likely to have had, any animal, good or other object in their possession
or under their charge.
(2) A designated officer may by notice in
writing to an appropriate person –
(a) inform the person of such
action that is being or is going to be taken by the designated officer; or
(b) require an appropriate
person to take such action, within the time specified in the notice,
as the designated officer considers to be necessary for the purposes
of preventing the establishment or spread of, or for the purposes of
eradicating, any actual or suspected animal disease or any other risk or hazard
to animal or plant health, animal welfare or the environment.
(3) In cases of actual or suspected
non-compliance with obligations arising under the Official Controls Regulation,
including non-compliance in a member State, the United Kingdom, Guernsey or the
Isle of Man, a designated officer may by notice in writing to an appropriate
person –
(a) informing the person what
action is being or is going to be taken by the designated officer, including
any of the measures in Articles 137 and 138 of the Official Controls Regulation;
or
(b) require an appropriate
person to take such action as the designated officer considers to be necessary
within the time specified in the notice including any of the measures in
Articles 66 and 67 of the Official Controls Regulation.
(4) The time within which the information is
required to be given or action is required to be taken must be reasonable.
(5) The notice may require that an appropriate
person produces for examination by a designated officer any authorisation,
official statement, certificate, record, invoice or other document relating to
an animal, good or other object specified in the notice.
(6) In this Regulation, “appropriate person” means –
(a) in relation to any
premises to be specified in a notice under paragraph (1), a person who is
the owner, occupier or other person in charge of the premises;
(b) a person who has, has
had, or is reasonably suspected by the designated officer to have or have had,
possession or charge of an animal, good or other object; or
(c) a person who, as auctioneer,
salesman or otherwise, has sold, offered for sale or otherwise disposed of an
animal, good or object.
(7) The Minister may by notice –
(a) demarcate an area in
relation to the presence of an animal disease or any other risk or hazard to
animal or plant health, animal welfare or the environment; and
(b) specify the prohibitions
or restrictions which are to apply in the demarcated area for that purpose.
(8) A notice under paragraph (7) must –
(a) describe the extent of
the demarcated area;
(b) specify the date on which
any such prohibitions or restrictions are to commence; and
(c) be published in a manner
appropriate to bring it to the attention of the public.
12 Failure to comply with a notice
(1) If a person fails to comply with a notice
within the time specified in the notice served on that person under these
Regulations, a designated officer may enter any premises specified in the
notice at all reasonable times to take or cause to be taken any steps that the designated
officer considers necessary to ensure compliance with the notice or to remedy
the consequences of the person’s failure to carry them out.
(2) The reasonable costs of taking such steps
are recoverable by the Minister as a debt from the person on whom the notice
was served.
(3) Paragraph (1) does not apply to any
premises which are used wholly or mainly as a private dwelling unless 24 hours’
notice has been given to the occupier.
(4) Paragraph (1) does not affect any
right of entry conferred by a warrant issued by the Bailiff.
13 Miscellaneous provisions as to notices
(1) This Regulation applies to any notice given
by a designated officer under these Regulations.
(2) The notice may –
(a) specify one or more
requirements or alternative requirements;
(b) specify the manner in
which and the period in which any requirement specified in the notice must be
carried out or otherwise fulfilled; and
(c) require the owner,
occupier or other person in charge of the premises to which the notice relates
to –
(i) notify the Minister of any change in
occupation of the premises, the date of the change and the name of the new
occupier, and
(ii) inform the new occupier
of the premises of the content of the notice.
(3) Any destruction, disposal, re-export or
treatment of an animal, good or other object, or substance or material, which
is required to be carried out under the notice must be carried out, or arranged
to be carried out, to the satisfaction of the designated officer by the person
on whom the notice has been served.
(4) A designated officer may amend or withdraw
the notice by a further notice.
(5) The notice may define by reference to a map
or plan or otherwise the extent of any premises referred to in the notice.
14 Service of notices
(1) A notice given by a designated officer
under these Regulations is validly served on a person by –
(a) delivering it to the
person personally;
(b) leaving it at the person’s
proper address; or
(c) sending it to the person’s
proper address.
(2) If the name or address of any occupier of
premises on whom a notice is to be served or given cannot, after reasonable
enquiry, be ascertained, the notice may be served by leaving it conspicuously
affixed to a building or object on the premises.
(3) If the notice is urgent it may be served in
the manner provided for under paragraph (2) and a copy subsequently served
in the manner provided for under paragraph (1) if this is possible after
reasonable enquiry.
(4) For the purposes of this Regulation and
Article 7 of the Interpretation (Jersey) Law 1954, “proper address”
means –
(a) in the case of a body corporate or limited liability partnership
or partnership, the registered or principal office
in Jersey of the body or partnership;
(b) in the case of any other
partnership or a partner or person having control or management of the
partnership business –
(i) the principal office in Jersey of the
partnership, or
(ii) the email address of the
partner or person having control or management;
(c) in any other case, a
person’s last known address, which includes an email address.
15 Disclosure of information held by customs officers
(1) A customs officer may disclose any
information in his or her possession to the Minister for the purposes of
enabling or assisting the Minister to carry out any function conferred on the
Minister under the Official Controls Regulation and these Regulations.
(2) Nothing in paragraph (1) affects any
other power or requirement to disclose information.
16 Disclosure of information to other competent authorities
(1) For the purposes of enabling the Minister
to carry out functions as competent authority under the Official Controls
Regulation, the Minister may disclose information that the Minister has
received in the performance of the Minister’s functions to a competent
authority in the British Islands or a member State.
(2) Nothing in paragraph (1) affects any
other power or requirement of the Minister to disclose information under European
Union legislation or an enactment.
PART 4
offences
17 Offences: general
(1) A person commits an offence, and is liable
to a fine if the person contravenes –
(a) a provision of the
Official Controls Regulation specified in Part 1 of Schedule 1; or
(b) a provision in the
EU instruments specified in Part 2 of Schedule 1.
(2) However, paragraph (1) does not apply
to anything done under, or in accordance with, a notice, authorisation,
consent, licence, certificate, attestation, approval or other permission, given
by the Minister or a designated officer under the Official Control Regulations
or these Regulations or to a contravention by the Minister.
18 Failure to comply with requirements of notices etc.
A person commits an offence, and is liable to a fine if the person,
without reasonable excuse, contravenes –
(a) a provision or condition
of a notice served on the person under these Regulations;
(b) a provision or condition
of an authorisation or permit granted to the person under these Regulations or
the Official Control Regulations; or
(c) a provision or condition
of a direction given under these Regulations or the Official Control
Regulations.
19 Provision of false or
misleading information
A person commits an offence, and is liable to imprisonment for a
term 2 years and to a fine, if, for the purposes of obtaining an
authorisation, licence or other consent under these Regulations or the Official
Controls Regulations or procuring the issue of an official certificate by a designated
officer, the person –
(a) knowingly or recklessly
makes a statement or representation which is false in a material particular;
(b) knowingly or recklessly
furnishes a document or information which is false in a material particular; or
(c) intentionally fails to
disclose any material information.
20 Obstruction
A person commits an offence, and is liable to imprisonment for a
term 2 years and to a fine, if the person –
(a) intentionally obstructs a
designated officer acting in the implementation of the
Official Controls Regulation; or
(b) without reasonable
excuse, fails to give to a designated officer any assistance or information
which the designated officer may reasonably require when acting in the
implementation of the Official Controls Regulation.
21 Offence relating to the disclosure of information held by
customs officers
A person commits an offence, and is liable to imprisonment for a
term 2 years and to a fine, if the person, without lawful authority or
reasonable excuse, discloses any information received from a customs officer
under Regulation 15 and –
(a) the information relates
to a person whose identity is specified in the disclosure or can be deduced
from the disclosure;
(b) the disclosure is for a
purpose other than specified in Regulation 15; and
(c) the customs officer has
not given his or her prior consent to the disclosure.
22 Offences by bodies
corporate and others
(1) In this Regulation –
“relevant offence” means an offence under these Regulations that is
committed by a limited liability partnership, a separate limited partnership,
an incorporated limited partnership or another body corporate;
“relevant person” means –
(a) if the relevant offence
is committed by a limited liability partnership, a partner of the partnership;
(b) if the relevant offence
is committed by a separate limited partnership or an incorporated limited
partnership –
(i) a general partner, or
(ii) a limited partner who is
participating in the management of the partnership;
(c) if the relevant offence
is committed by a body corporate other than an incorporated limited
partnership –
(i) a director, manager, secretary or other
similar officer of the body corporate, and
(ii) if the affairs of the
body corporate are managed by its members, a member who is acting in connection
with the member’s functions of management; and
(d) a person purporting to
act in any capacity described in sub-paragraphs (a) to (c) in relation to
the partnership or body that commits the relevant offence.
(2) If a relevant offence is proved to have
been committed with the consent or connivance of a relevant person, that
relevant person is also guilty of the offence and liable in the same manner as
the partnership or body corporate to the penalty provided for that offence.
(3) Paragraph (4) applies if a relevant
offence –
(a) is an offence that may be
committed by neglect; and
(b) is proved to be
attributable to any neglect on the part of a relevant person.
(4) The relevant person is also guilty of the
offence and liable in the same manner as the partnership or body corporate to
the penalty provided for that offence.
PART 5
miscellaneous
23 Methods and techniques
for official controls
(1) The methods and techniques for official
controls must be in accordance with Article 14 of the Official Controls
Regulation.
(2) An operator whose animals, goods or other objects
are subject to sampling, analysis, testing or diagnosis has the right to a
second expert opinion at the operator’s own expense in accordance with Article 35
of the Official Controls Regulation.
24 Appeals
(1) There is a right of appeal to the Royal
Court against –
(a) a refusal, modification,
suspension, revocation or cancellation of any authorisation, registration or
permit under these Regulations or the Official Controls Regulation or the
imposition of a condition under any such authorisation, registration or permit;
(b) any requirement imposed
by or other decision of the Minister or a designated officer under these
Regulations; or
(c) any other act under the
Official Controls Regulation or these Regulations prescribed by the Minister by
Order for the purposes of this Regulation.
(2) An appeal must be brought within 21 days
after the appellant is served with a written copy of the decision, requirement,
or other act, against which the appeal is brought, or within any further time
that the Royal Court may allow.
(3) Unless the Royal Court so orders, the
lodging of an appeal does not operate to stay the effect of a decision,
requirement or other act pending the determination of the appeal.
(4) On hearing the appeal, the Royal Court
may –
(a) confirm, reverse or vary
the decision, requirement, or other act, against which the appeal is brought;
and
(b) make any order as to the
costs of the appeal as it thinks fit.
25 Fees
(1) The Minister may by Order prescribe fees
payable for any authorisation, certificate, permit or
registration, or any inspection or other service or control provided under the
Official Controls Regulation or these Regulations.
(2) Without limiting paragraph (1), the
Order may –
(a) include fees in respect
of anything done by a designated officer or another person, whether or not it
is done at the request of the person required to pay the fee; and
(b) make provision for the
recovery of such fees or the refusal of any service if a fee prescribed for the
service is not paid.
(3) Fees prescribed under paragraph (1) in
relation to official controls performed under the Official Controls Regulation
must be calculated, set, charged and collected in accordance with Chapter VI
of the Official Controls Regulation.
26 Transitional provisions
(1) Any licence, consent, certificate or other
authorisation –
(a) issued or granted in
relation to any of the areas governed by rules listed in Article 1(2) of
the Official Controls Regulation; and
(b) which has effect
immediately before the commencement date and would otherwise lapse but for this
paragraph,
remains in force until it expires or is superseded by another
licence, consent certificate or other authorisation issued or granted by the
Minister under the Official Controls Regulation, these Regulations or related
legislation.
(2) Any notice served in relation to any of the
areas governed by rules in Article 1(2) of the Official Controls
Regulation, which has effect immediately before the commencement date –
(a) remains in force and
continues to have effect as if it were served, as the case may be, under the
Official Controls Regulation, these Regulations or related legislation for an
equivalent purpose on the date on which it was previously served; and
(b) is to be read with such
modifications as are necessary for it to do so.
(3) Any application made, certificate issued or
other thing done in relation to the issuing of a certificate concerning any of
the areas governed by rules in Article 1(2) of the Official Controls
Regulation before the commencement date has effect as if done, as the case may
be, under the Official Controls Regulation, these Regulations or related
legislation.
(4) Subject to paragraph (5), a person who
is an operator as at the commencement date, and is required to be registered
but is not registered, is treated as registered provided that an application is
made to the Minister for registration in accordance with, as the case may be, the
Official Controls Regulation, these Regulations or related legislation within 6 months
starting from the commencement date.
(5) If
the application to register as required by paragraph (4) is refused by the
Minister, an operator ceases to be treated as if it were registered from the
later of –
(a) the expiry of the period
for appealing against the refusal to register; or
(b) where an appeal is duly
instituted against the refusal to register, the date the appeal is finally
determined or withdrawn,
and an appeal is finally determined or withdrawn for the purposes of
this paragraph when the appeal and any further appeal is finally determined.
(6) In this Regulation –
“commencement date” means the date of the commencement of these
Regulations;
“related legislation” means –
(a) any EU instrument amended
or repealed by the Official Controls Regulation;
(b) any EU instrument made under
the EU instruments provided for in sub-paragraph (a);
(c) any enactment
implementing the EU instruments provided for in sub-paragraph (a) or (b);
(d) the EU Plant Health
Regulation;
(e) the Plant Health
Regulations.
27 [2]
28 Citation and commencement
These Regulations may be cited as the EU Legislation (Official
Controls) (Jersey) Regulations 2020 and come into force 7 days after they are
made.