Brexit and Product compliance

The impact of Brexit on product compliance

The impact of Brexit on product compliance is big. The basis for almost all United Kingdom (UK) product legislation was based on EU-law. The UK was in 1973, one of the first members of the European Union (EU), then EEC.  As a result of this long-standing membership, all EU legislation adopted since then has been incorporated into UK law. Product compliance, mutual recognition and standardization have developed since then. 

What will happen to the UK product legislation?

One of the main reasons for the UK leaving the EU was that the UK wants to have full control over legislation in its own country. That is why it has canceled its membership in the EU. As of 31 January 2020, 23:00 hrs., the UK left the EU. At this time, a transition period came into effect in which the UK would follow EU rules, but had no longer any influence or representation. In this period a new agreement would have to be agreed upon.

EU legislation or UK legislation applicable?

After the transition period and without a trade agreement to replace EU membership, the UK would fall back to the law that applied before EU membership. This applies to all legislation that has not been transposed into UK law. Almost all EU product legislation is incorporated in British law. Product legislation that is not changed will be the same or seem very similar to EU product legislation.

Withdrawal agreement

On 24 December 2020, the EU and the UK have reached an agreement: the ‘Trade and Cooperation Agreement’. The full text of the agreement can be found on eur-lex.  The EU-UK Trade and Cooperation Agreement sets out arrangements in areas such as:

• Trade-in goods and in services, 
• Digital trade; 
• Intellectual property;
• Public procurement;
• Aviation and road transport;
• Energy;
• Fisheries;
• Social security coordination;
• Law enforcement and cooperation in criminal matters;
• Thematic cooperation and participation in Union programmes;
• Provisions ensuring a level playing field and respect for fundamental rights.

Is the CE-mark valid in the UK after Brexit?

Yes and no.

NO - because the CE-mark is a manufacturers declaration that a product complies with EU health, safety, and environmental protection standards. As the UK is no longer part of the EU, the CE-mark no longer applies to goods placed on the UK-market. The UK has introduced a new marking UKCA that will be used for goods places on the UK-market. UKCA stands for UK Conformity Assessed. The UKCA mark applies to specific goods placed on the market in England, Wales and Scotland. It does not apply to goods placed on the market in Northern Ireland. For Northern Ireland another mark is introduced: UKNI. The UK Government has also published guidance on placing goods on the Northern Ireland Market.

Use of CE-mark during the transition period

YES - because the UK government has announced that it will recognize goods with the CE-mark during a certain period. It is allowed to use the CE mark until 31 December 2024. This applies to goods that fall under product legislation that matches EU product legislation. If the UK, or the EU adopts new legislation, the CE-mark may no longer be used.  Also, as of 1 January 2021, the new UKCA marking may be used to declare compliance with UK product legislation.

Is the UKCA mark valid in the EU?

No, as mentioned the UK is no longer part of the EU. The UKCA mark is not recognized in the EU as a valid mark to declare compliance to EU product legislation. Only the CE marking may be used for this end. 

Can you use the UKCA and CE mark on the same product?

In the EU, the UKCA and CE-mark may be used at the same time. In the EU, the CE-marking should be the only marking of conformity of a product with regards to product legislation. Other markings, like the UKCA-marking may be affixed to the product provided that the visibility, legibility and meaning of the CE marking is not impaired. The UKCA is a marking of compliance with non-EU legislation. Declarations of conformity with UK and EU legislation are not contradictory and are therefore allowed in the EU. As previously mentioned, the UK product legislation was up until Brexit the same as EU product legislation. It is unknown how the British government currently deals with different markings on the same product, or in the future. 

Implication for technical files

Like in the EU, for the UK-market a technical file is required. When the British legislator publishes product legislation, it will inevitably include a transitional period. ProductIP users can create technical files for the UK-market. By creating a technical file for the UK-market, users can stay up-to-date of all product legislation that applies to products in the UK. 

Any product placed on the UK market since 1 January 2021 must already comply with changed UK product legislation. As in the EU, any product must comply with REACH (the chemicals legislation). With effect from 1 January 2021, UK REACH has become applicable. This is almost the same chemical legislation as in the EU. Only in this case, there have been changes in the EU since 1 January 2021. This means that a product that complies with 'EU REACH' may no longer comply with UK REACH. Also, European registrations no longer apply to the UK. 

The ProductIP online technical file is a perfect solution to stay up to date

ProductIP users who have technical files for the UK obviously already know which UK legislation applies in the UK. ProductIP keeps a close eye on the UK legislation and incorporates any changes into the database. ProductIP users are therefore the first to be informed of all legislation applicable to the products.