RCD compliance

[eagle160]

Hi all, I have query re RCD compliance and search or google can't provide the answer I'm looking for...

The general question I have is what the exact issue is with buying a boat that doesn't have an RCD status despite that it should, i.e. it is captured by the directive (built in EU post June 1998) but there's no CE mark nor HIN no to evidence compliance.

Generally the advise on the forum seems to be to walk away from the purchase but I'm wondering why exactly. As far as I can see non-compliance is a criminal offense with fines up to £5000 and up to 3 months in prison. However the obligation to comply lies with the builder/importer and as far as I can see not with the purchaser, so if the offense is committed by the builder why should I care as purchaser?

 

[Tranona]

There are two parts to this question. The first is whether the boat complies with the RCD. Just because it was built in the EEA after 1998 does not mean it complies with the RCD. That is only required if it was sold in the EEA. Boats built in the EEA for example for sale in the US may not comply as they are required to comply with US standards. It could also be exempt from the RCD, for example designed and sold for racing or built to an old design. Having an HIN does not automatically mean that it complies with the RCD, nor that a CE mark has been issued.

The second question is whether there is a penalty for buying or selling a used boat without a CE mark or complying with the RCD. The answer is probably no. It is probably wise however to check whether a boat complies (or rather complied when first put into service in the EU) as lack of compliance may also indicate other irregularities that might have negative consequences.

The only way you can clarify is to gather all the facts about the boat and consult a specialist such as CE Proof.

 

[concentrik]

why should I care as purchaser?

The legal aspects of the RCD will not affect you as purchaser nor should they affect your enjoyment of the boat. The RCD is a EU directive which was adopted by the UK. The enabling legislation (the UK version of the rules) is enforced by Trading Standards. It places a duty on the entity (person or company) who "first sell or put into use" in the UK. The FIRST bit is important. If you buy the boat in the UK it's not YOU who are the first to sell/put into use. The penalties you mention apply to the first sale and do not travel with the boat. No liability attaches to subsequent sales. On top of this, under the UK enabling legislation Trading Standards have one year from the 'offence' to take action. After that there's nothing they can do because they are interested only in the first transaction.

Insurance implications have been mentioned in the past in these forums but as far as I know they have been speculative. I'm not aware of insurance being refused on RCD connected grounds. It doesn't arise on any proposal from I've seen. You'll get more detail from a search with 'RCD' on these forums.....

 

[macd]

The RCD is a EU directive which was adopted by the UK.

FWIW, it's an EEA measure, not EU.

 

[concentrik]

Thread drift alert/////

I thought the European Economic Area (EEA) was the term given to the EU + Norway, Lichtenstein and Iceland? AFAIK the EEA doesn't formulate legislation - that comes from the EU - but Nor,Lich & Ice do adopt it even though they aren't represented in the EU. But in any case it's a distinction without a difference and I'll shut up about it now before it gets moved to the Lounge....!

 

[eagle160]

/// attempt to bring it back on topic

Concentrik , you raise an interesting point regarding the Trading Standard having one year to pursue the offense. Besides the £5000 penalty and 3 months prison sentence the UK trading standard website talks about "taking the good of the market". Would this also be subject to a expiry period?

The boat in question where this is an issue is UK built by a reputable builder and isn't exempt from the RCD as far as anyone can see. 'Apparently' (=hearsay) she was built according to RCD standards (according to builder) but it just lacks any proof thereof (no CE mark, no HIN, etc). Therefore the builder seems to have breached the directive or all paperwork evidencing compliance was lost

I'm still unclear if there could be any potential consequences if it is left unrectified 15 years after the 'offense' was committed... The Trading Standard websites talk about you could be "taking a big risk" if you buy a boat that is not compliant (the good can be "taken of the market" and ultimately "destroyed") but so far I've not be able to find any examples/ cases where this has been attempted.

Clearly one can fork out £5k or so to make it compliant retroactively but I'm still wondering why bother...

Assuming they somehow would find out would the trading standards actually proceed to "destroy" a £70k+ boat because it didn't comply 15 years ago??

 

[concentrik]

Are you concerned about one particular boat or just RCD&boats in general?

It doesn't matter whether the boat was built to any standards - it is either CE marked (indicating RCD compliance) or it isn't.

Following adoption by the UK of the Recreational Craft Directive any boat (yes there are exceptions but they don't seem to apply here) must comply and be CE marked when it is first sold or put into service in the EU (ok, EEA). The boat you mention seems to fall within this legislation - built 15 years ago - so unless it has remained unsold and not put into use for the past 15 years the maker would be the person or firm responsible for ensuring compliance - and therefore liable for any breach. But it was all sooooo long ago.

I would suggest you contact the Trading Standards department in the area where the sale takes/took place and put the question to them directly. Do it locally because 'enforcement' is a local matter. I expect that you will find that you already know a good deal more about the intricacies of the RCD than they do. Make sure your exchanges with them are in writing or email. This will show that you took reasonable care in your purchase should you have to account for your actions later. You are looking for written confirmation that they consider the matter of any breach outside their interest. I think the chances of their interest being aroused are vanishingly small.

In practice, Eagle, no-one can be bothered with all this, least of all the UK Tr Stan people. This is an unintended consequence of an attempt to allow free trade for boat manufacturers within the EEA so they didn't have to deal with different sets of rules for each country. It was not primarily intended to complicate private used boat sales nor to engender a lucrative post-construction compliance industry for a well known association (personal gripe).

Edit: If you don't mind being a bit devious you could play this to your advantage - get estimates for post-construction assessment and remedial compliance work and try to negotiate a reduction in the purchase price. It would be a big bill so go for a big reduction! Later, of course, you will decide it was all a big fuss about nothing and use the savings to buy lots of absolutely essential boat accessories like fender socks, matching crockery and one of those pendulum things that show something called 'angle of heel' (In my case SWMBO provides ample indication of any excesses in this area). Good luck

 

[Tranona]

With concentrik on this one. Doubt anybody will be bothered. The purpose of the legislation is to control sales of goods to consumers and the action would be against the trader who sold the goods in the first place - probably now long gone.

The post construction assessment business has declined to the point that the organisation he refers to (the RYA) no longer offers it as the demand is so small.

Put yourself in the position of a Trading Standards officer. Struggling to control the sale of dodgy imported goods with fake CE marks - is he likely to get involved in something that he knows little about, does not affect a lot of people and no kudos for investigating.

Would be more concerned about clear title and even VAT evidence than RCD.

 

[Chris_Robb]

With concentrik on this one. Doubt anybody will be bothered. The purpose of the legislation is to control sales of goods to consumers and the action would be against the trader who sold the goods in the first place - probably now long gone.

The post construction assessment business has declined to the point that the organisation he refers to (the RYA) no longer offers it as the demand is so small.

Put yourself in the position of a Trading Standards officer. Struggling to control the sale of dodgy imported goods with fake CE marks - is he likely to get involved in something that he knows little about, does not affect a lot of people and no kudos for investigating.

Would be more concerned about clear title and even VAT evidence than RCD.

I seem to recollect that it might be illegal to import a boat to the EU without a valid RCD. The OP does not say if the boat is to be imported or not,

 

[eagle160]

I seem to recollect that it might be illegal to import a boat to the EU without a valid RCD. The OP does not say if the boat is to be imported or not,

She's in the EU already and is currently UK registered

As the boat never becomes "legal" no matter how much time has expired I guess the situation in the end is that there remains a risk if one overactive Trade Officer would take an interest in the boat for whatever reason, but that in practice this risk is very very low but not nil.

I do wonder if it makes sense to wake sleeping dogs

 

[Chris_Robb]

She's in the EU already and is currently UK registered

As the boat never becomes "legal" no matter how much time has expired I guess the situation in the end is that there remains a risk if one overactive Trade Officer would take an interest in the boat for whatever reason, but that in practice this risk is very very low but not nil.

I do wonder if it makes sense to wake sleeping dogs

As others have said, if its in the EU already and has always been there, just forget it. It is just not a problem.

 

[concentrik]

Sorry, one last comment on this. The RCD is not concerned with the 'legality' or otherwise of the boat. It is concerned only with the legality of a transaction, namely the FIRST transaction which places the boat on the EU market or the FIRST importation of the boat (placing it into use) to EEA waters. A boat isn't legal or illegal - it may have VAT liability attached perhaps, or as a commercial it may fall short of commercial coding requirements but I don't think your boat falls into those categories from what you have told us.

I'm happy to be put right on this by more knowledgeable individuals but I have read the legislation, all of it, thoroughly I think - and nowhere did I find any provisions for action by any authority other than in connection with the above - first sale / put into use.

If you're having trouble getting off to sleep at night I can upload the relevant docs to dropbox for your perusal - happy to have another opinion!

But as others have said, it's probably not worth bothering about - forget it, get a boat and go sailing!

 

[Tranona]

The daft thing with CE marking when applied to something as complex as a boat is that any subsequent modifications can lead to it no longer meeting the classification, even though additional equipment may have a CE mark. There have been mutterings about ongoing certification and re-certification following modifications but sensibly seem not to have been pursued.

 

[Ariadne]

"It is concerned only with the legality of a transaction, namely the FIRST transaction which places the boat on the EU market or the FIRST importation of the boat (placing it into use) to EEA waters."This is the important bit, you can bring in boat from any country and it will attract any attention from RCD/trading standards until you sell it. Same I think for VAT if you are a live aboard - no VAT as it is your home and therefore exempt as its part of your belongings when you move from country to country (I'm sure somebody will come along and tell us how this works).But as said, it is already in the UK/EU and hasn't been bothered with, so get sailing with it.

 

[Tranona]

"It is concerned only with the legality of a transaction, namely the FIRST transaction which places the boat on the EU market or the FIRST importation of the boat (placing it into use) to EEA waters."This is the important bit, you can bring in boat from any country and it will attract any attention from RCD/trading standards until you sell it. Same I think for VAT if you are a live aboard - no VAT as it is your home and therefore exempt as its part of your belongings when you move from country to country (I'm sure somebody will come along and tell us how this works).But as said, it is already in the UK/EU and hasn't been bothered with, so get sailing with it.

Just to clarify, the returning resident exemption on VAT is not because the boat is your home. Eligibility depends on your resident status and covers a whole range of chattels, not just boats. Basically to be eligible you have to be formally non resident in EU and intending to take up permanent residence in the EU. As many people who live on their boats outside the EU may still formally be resident in the EU as becoming non-resident is often difficult or of no advantage, the number of people this applies to is very small. It is a complex area and to take advantage you need to get agreement from customs in the state you are taking up residence before you import the chattels. The rules are in HMRC VAT Notice No8.

 

[Boo2]

On top of this, under the UK enabling legislation Trading Standards have one year from the 'offence' to take action.

You wouldn't happen to have a link to the relevant legislation where it actually states that, would you ?

Thanks,

Boo2

 

[concentrik]

You wouldn't happen to have a link to the relevant legislation where it actually states that, would you ?

Thanks,

Boo2

Boo2, this old thread may help:

http://www.ybw.com/forums/showthread.php?305813-VAT-Invoice-on-2nd-hand-boat

from post#8 where Tranona raises the RCD question.

 

[eagle160]

Boo2, this old thread may help:

http://www.ybw.com/forums/showthread.php?305813-VAT-Invoice-on-2nd-hand-boat

from post#8 where Tranona raises the RCD question.

The relevant explanation by the trading office does say this: "Although a prosecution must be brought with one year from
the date of the offence there are other processes which can be invoked on the discovery of a non-compliant or
falsely CE marked craft"

Any idea under which regulation that would be or what they're referring to? The underlying law which you've helpfully posted also mentions a one year expiry

PS: Agree that I would rather go sailing and spend money on fender protectors! but I do find this slightly interesting that 15 years from introduction of this legislation there's seemingly no clear cut answer to this question

 

[Tranona]

The relevant explanation by the trading office does say this: "Although a prosecution must be brought with one year from
the date of the offence there are other processes which can be invoked on the discovery of a non-compliant or
falsely CE marked craft"

I think they are probably referring to action under other areas of consumer law such as misrepresentation. There have been cases of traders being sued for supplying boats wrongly categorised - the incident with the Polish Bez dinghy which capsized in Wales killing 2 people was sold as Cat C but did not have sufficient stability or buoyancy to comply, as an example. Don't know what the outcome was but the dealer had gone into liquidation before the enquiry report was published.

 

[concentrik]

The relevant explanation by the trading office does say this: "Although a prosecution must be brought with one year from
the date of the offence there are other processes which can be invoked on the discovery of a non-compliant or
falsely CE marked craft"

Any idea under which regulation that would be or what they're referring to?

Yes it is the General Product Safety Regulations 2005
These regulations (GPSD 2005) came into force on 1st October 2005.

And the Consumer Protection from Unfair Trading Regulations 2008

But remember that Trading Standards are responsible for enforcement in the UK and notice something important about their name...... it's Trading standards. They're concerned with consumer protection and apply their efforts to traders - dealers and manufacturers. They are not responsible for identifying old boats which may at some time in the distant past have fuddled an ill-drafted EU reg. They are concerned with protecting you, the hapless consumer, from devious traders not hounding you for having fun on a boat. If you don't lodge a complaint with them they'll be delighted never to get involved.

As for a clear cut answer, you're right; there probably isn't one. But if it interests you, pm me and I'll send you the whole sorry legislative fudge!