Communications Regulation Act 2002

46A

F97 [ Special powers enabling Minister to make regulations to give effect to European Communities instruments relating to communications matters.

46A. (1) If regulations specified in Part 2 of Schedule 1 (inserted by section 18 of the Communications Regulation (Amendment) Act 2007) that give effect to a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of those Communities, create an offence that is triable summarily, and the Minister considers it is necessary to do so for the purpose of giving effect to the provision or act, the Minister may, by regulations, amend the regulations

( a ) to provide for the offence to be also triable on indictment, and

( b ) subject to subsection (6) , to make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions to which the offence relates.

(2) If regulations specified in Part 2 of Schedule 1 that give effect to a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of those Communities, prohibit or require the doing of an act, the Minister may, where he or she considers it necessary for the purpose of giving effect to the provision or act, make regulations amending the first-mentioned regulations

( a ) to provide that a contravention of the prohibited act, or a failure or refusal to perform the required act, is an offence,

( b ) to provide for the offence to be triable

(i) summarily, or

(ii) on indictment, if the Minister considers it necessary for the purpose of giving effect to the provision or act concerned, and

( c ) subject to subsection (6) , to make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions to which the offence relates.

(3) The Minister may make regulations for the purpose of giving effect to a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of those Communities, relating to

( a ) the provision of an electronic communications service, an electronic communications network or an associated facility, or

( b ) the radio frequency spectrum or national numbering resource, or

( c ) a postal service.

(4) Regulations under subsection (3) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of those regulations (including provisions repealing, amending or applying, with or without modification, a related enactment).

(5) Regulations under subsection (3) may

( a ) provide for an offence under those regulations to be triable

(i) summarily, or

(ii) on indictment, if the Minister considers it necessary for the purpose of giving effect to the provision or act referred to in subsection (3),

and

( b ) subject to subsection (6) , make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the act or omission to which the offence relates.

(6) The maximum fine that may be provided for in regulations under this section shall

( a ) in respect of the conviction on indictment of a body corporate of an offence under the regulations, not be greater than

(i) 5,000,000, or

(ii) if 10 per cent of the turnover of the body is greater than that amount, an amount equal to that percentage,

or

( b ) in respect of the conviction on indictment of any other person of such an offence, not be greater than 500,000.

(7) If the Minister considers it necessary to do so for the purpose of giving full effect to a provision of the treaties governing the European Communities, or to an act, or provision of an act, adopted by an institution of those Communities, the Minister may, in regulations under subsection (1) , (2) or (3) , provide

( a ) for the High Court, on application by the Commission or some other person specified in the regulations, to make

(i) an order requiring a specified person, or a person belonging to a specified class, to comply with an obligation imposed by or under the regulations, or

(ii) an order restraining such a person from continuing to contravene a prohibition or restriction specified in or under the regulations,

and

( b ) for the High Court, on being satisfied that such a person has failed to comply with such an obligation, or has contravened such a prohibition or restriction, to order the person to pay a financial penalty of such amount as the Court considers appropriate, having regard to the circumstances of the failure to comply or contravention, including

(i) the duration of the failure to comply or the contravention,

(ii) the effect of the failure to comply or contravention on consumers or users of the service or product provided or supplied by the person and on the person s competitors,

(iii) the submissions of the Commission as to the appropriate amount of the penalty to be imposed, and

(iv) any excuse or explanation given by the person with respect to the failure to comply or contravention.

(8) If the Minister considers it necessary to do so for the purpose of giving full effect to a provision of the treaties governing the European Communities, or to an act, or provision of an act, adopted by an institution of those Communities, the Minister may, in regulations under subsection (1) , (2) or (3) , provide

( a ) that if, after being convicted of an offence, a person continues to do the prohibited act, or to fail to do the required act, the person commits a further offence on each day or part of a day during which the act or failure continues, and

( b ) that the person is to be liable on conviction for the further offence

(i) if tried summarily, to a fine not exceeding 500, or

(ii) if tried on indictment, to a fine not exceeding 5,000.

However, if the regulations concerned provide for a person to be tried summarily for further offences that are alleged to have been committed on successive days, then, irrespective of anything to the contrary in the regulations concerned, the maximum fine that can be imposed for those offences under those regulations is 5,000.

(9) Section 2 of the Ministers and Secretaries (Amendment) (No. 2) Act 1977 does not apply to a power to make regulations for a purpose referred to in subsection (1) , (2) or (3) .

(10) In this section

European Communities and treaties governing the European Communities have the same meanings as they have in the European Communities Act 1972 ; and

turnover means, in relation to a body corporate, the turnover of the body in the financial year of the body ending immediately before the financial year in which the offence of which the body has been convicted was committed. ]

Annotations:

Amendments:

F97

Inserted (15.05.2007) by Communications Regulation (Amendment) Act 2007 (22/2007), s. 14, S.I. No. 224 of 2007.

Editorial Notes:

E72

Previous affecting provision: power pursuant to section exercised (18.04.2010) by Communications (Mobile Telephone Roaming) (Amendment) Regulations 2010 (S.I. No. 156 of 2010); revoked (18.06.2013 to 30.06.2022) by Communications (Mobile Telephone Roaming) Regulations 2013 (S.I. No. 228 of 2013), reg. 12(b), to cease to have effect as per reg. 1(2), subject to transitional provision in reg. 11.

E73

Previous affecting provision: power pursuant to section exercised (13.12.2008) by European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) (Amendment) Regulations 2008 (S.I. No. 526 of 2008), in effect as per reg. 1(2); revoked (1.07.2011) by European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (S.I. No. 336 of 2011), reg. 35(b), subject to transitional provision in reg. 34.

E74

Previous affecting provision: power pursuant to subss. (3), (4) and (7) exercised (2.05.2008) by European Communities (Postal Services) (Amendment) Regulations 2008 (S.I. No. 135 of 2008); revoked (2.08.2011) by Communications Regulation (Postal Services) Act 2011 (21/2011), s. 4(2) and sch. 1 part 2 item 2, commenced on enactment.

E75

Previous affecting provision: power pursuant to section exercised (30.11.2007 to 30.06.2010) by Communications (Mobile Telephone Roaming) Regulations 2007 (S.I. No. 792 of 2007), to cease to have effect as per reg. 1(2); revoked (18.06.2013 to 30.06.2022) by Communications (Mobile Telephone Roaming) Regulations 2013 (S.I. No. 228 of 2013), reg. 12(a), to cease to have effect as per reg. 1(2).

E76

Previous affecting provision: power pursuant to section exercised (29.06.2007) by European Communities (Electronic Communications Networks and Services) (Universal Service and Users’ Rights) (Amendment) Regulations 2007 (S.I. No. 374 of 2007), in effect as per reg. 1(2); revoked (1.07.2011) by European Communities (Electronic Communications Networks and Services) (Universal Service and Users’ Rights) Regulations 2011 (S.I. No. 337 of 2011), reg. 39(b).

E77

Previous affecting provision: power pursuant to section exercised (29.06.2007) by European Communities (Electronic Communications Networks and Services) (Access) (Amendment) Regulations 2007 (S.I. No. 373 of 2007), in effect as per reg. 1(2); revoked (1.07.2011) by European Communities (Electronic Communications Networks and Services) (Access) Regulations 2011 (S.I. No. 334 of 2011), reg. 25(b).

E78

Previous affecting provision: power pursuant to section exercised (29.06.2007) by European Communities (Electronic Communications Networks and Services) (Authorisation) (Amendment) Regulations 2007 (S.I. No. 372 of 2007), in effect as per reg. 1(2); revoked (1.07.2011) by European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 (S.I. No. 335 of 2011), reg. 28(2)(b).

E79

Previous affecting provision: power pursuant to section exercised (13.06.2007) by European Communities (Electronic Communications Networks and Services) (Framework) (Amendment) Regulations 2007 (S.I. No. 271 of 2007), in effect as per reg. 1(2); revoked (1.07.2011) by European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 (S.I. No. 333 of 2011), reg. 41(2)(c).