Sunday, August 30, 2009

Those light bulbs

Booker is hot on the case of the disappearing light bulbs in this week's column, the bulbs that supposedly become "illegal" on 1 September, when all we will be able to buy are the energy-saving compact fluorescents.

What Booker has done, by the simple expedient of asking Defra for details of the "legal base" on which authority the incandescent bulbs are banned, is discover a bizarre situation where, despite assertions to the contrary, there is actually no legal power in place to prevent these light bulbs being imported or sold.

The story starts with EU's 2005 directive on Eco-Design of Energy-Using Products directive, Directive 2005/32/EC which, for some unaccountable reason, the Defra official referenced as 2005/31.

This little gem sets up a system which requires member states to implement domestic law which prohibits the "placing on the market" of certain "energy-using products" (EuPs) unless they conform to specific technical specifications, as defined by current (and subsequent) EU regulations.

For this "framework" directive to become law, therefore, it must be transposed into UK law, which Defra tells us it has done, under the Eco-design for Energy Using Products Regulations (S.I. 2007 No.2037). Reference to these Regulations, however, is more than a little bit interesting.

Regulation 3 (Part 2) does prohibit the placing of a "listed product" on the market unless it complies with certain technical criteria. Reference to the definition of a "listed product" (Regulation 2), though, yields a list in paragraph 1 of Part 1 to Schedule 1. And there, one finds just three products: (a) a boiler or an appliance; (b) a refrigerator appliance; (c) a ballast for fluorescent lighting.

Perspicacious readers will immediately discern that there is a curious omission. There is no reference to lighting products – of any description. On the face of it – and certainly relying on Defra – there is no law in force which can be interpreted as banning the sale of incandescent lamps.

What gets even murkier, however, is Defra's insistence that the specific "Implementing Measure" banning the placing on the market of incandescent bulbs takes the form of a directly applicable Commission Regulation (EC) 244/2009.

Sure enough, this makes mandatory conformity with the ecodesign requirements set out in the regulations for any "non-directional household lamps", these being products which "are designed essentially for the full or partial illumination of a household room, by replacing or complementing natural light with artificial light, in order to enhance visibility within that space."

Being a Commission Regulation, this has "direct effect" which means it comes into force the moment it is "done in Brussels", without coming anywhere near our provincial parliament. BUT – and it is a very big "but" – as an EU law, it specifies neither enforcement provisions nor penalties. These must be set out in UK law and, so far, we have not been appraised of any such law which applies to the sale of these products.

On this basis, the response of any retailer to being told that the sale of such products contravenes EU law should be "so what?" Without enforcement powers or penalties, there is nothing any official can do.

Even if this hurdle was surmounted, there is another problem. The prohibition applies only to "household lamps", although the Regulation does extend the prohibition to include "when they are marketed for non-household use or when they are integrated into other products."

There is no prohibition, however, on selling any "special purpose lamp", which is defined as a lamp "not intended for household room illumination because of its technical parameters or because the related product information indicates that it is unsuitable for household room illumination." Thus it would seem that as long as incandescent lamps are marked with the labelling "unsuitable for household room illumination", it is perfectly legal to sell them.

Such is the mess in which we now find ourselves that, as Booker observes, in its desire to bend over backwards to meet the wishes of the EU, our government has made a total Horlicks of trying to understand the laws it is so eager to comply with.