CE marking in a No Deal Brexit scenario

CE marking in a No Deal Brexit scenario

In the last few weeks, some GGF Members have expressed concern over possible changes of CE Marking and compliance with the Construction Products Regulation, should the UK withdraw from the European Union without a deal.

To help Member awareness of the potential issues the GGF is pleased to convey the following Frequently Asked Questions compiled by Government for the construction industry.

Frequently asked questions

1. How will products on the UK market be affected?

For an individual product made available on the UK market prior to the UK leaving the EU, a certificate issued by a notified body that was valid immediately before the UK leaves the EU continues to be valid after exit day for the purposes of the UK market. No additional action is needed in relation to the UK market.

2. What do I need to do to place a product on the UK market after the UK has left the EU?

The UK will recognise both the UKCA marking and the CE marking. Manufacturers will either need to:

• affix the UKCA marking using a UK-recognised ‘approved body’ or
• affix the CE mark, using a EU-recognised ‘notified body’

Where no third-party conformity assessment is required (AVCP system 4) the manufacturer can choose whether to affix the UKCA marking or the CE marking (or both), provided that the underlying requirements are met.

Distributors who bring products in from the EU to the UK should see also Question 4.

3. What do I need to do to place a product on the EU market after the UK has left the EU?

In a no deal scenario it would be for the European Commission to determine the arrangements that apply. Businesses should read the European Commission’s notice to stakeholders which provides a reminder “of legal repercussions, which need to be considered when the United Kingdom becomes a third country”, the supplementary questions and answers document that the European Commission published on 1 February 2019, and any further updates published after that date.

The effect of these arrangements is that for the purposes of placing products on the EU-27 market after exit day, the European Commission will no longer recognise certificates from UK notified bodies. Therefore, for placing products on the EU market after exit day manufacturers should check with their advisers, but from the most recent European Commission guidance, they would either need to:

• undertake the necessary conformity assessment activity with an EU-recognised notified body or
• arrange for the transfer of the certificate (and associated files) from a UK notified body to an EU-recognised notified body

The above actions will almost certainly be required to be taken before exit day if the manufacturers wish to continue to put products on the EU market after exit day in a no deal scenario, but again check with your advisers.

4. If I am bringing in products from the EU will my obligations be affected?

Distributors who bring products in from the EU to the UK will in most cases now be classified as ‘importers’ bringing in products to the UK from a third country. This will require importers to label their products with their name and address. Further guidance above.

5. Will Initial Type Test reports that are valid now continue to be valid for placing products on the UK market after Exit day?

A test report that was issued by a UK notified body that was valid at the point the UK leaves the EU can be used after exit day to support preparation of the Declaration of Performance and affixing the UKCA mark. See Regulation 75 of the EU exit regulations for more information.

6. What happens if I am part-way through conformity assessment activity at the point we leave the EU?

Where conformity assessment activity has been undertaken (in full or in part) before exit day by a UK notified body and the product has not been placed on the UK market before exit day, that conformity assessment activity can be used to support the affixing of the UKCA marking. See Regulation 75 of the EU exit regulations for more information.

If the conformity assessment activity is being undertaken by an EU-recognised notified body, the process can be completed after exit day and the CE marking can be affixed in accordance with EU rules.

Provided that the obligations of the EU and UK standard are the same (which they will be immediately after the UK leaves the EU) the product can then be placed on the UK market without the need for further testing.

7. Will manufacturers need to test products twice to sell on UK and EU markets?

For the EU market, CE Marking must be used.

In the UK, provided that CE marking has been legitimately affixed (including that any third-party conformity assessment required has been undertaken by EU-recognised notified body) the product can be placed on the UK market. It is intended that the use of the CE marking in the UK market will be permitted for a time limited period and sufficient notice will be given before that period ends.

8. Can I still use certificates from EU-recognised notified bodies for products on the UK market?

Yes. The CE marking can only be affixed where any third-party conformity assessment has been undertaken by an EU-recognised notified body. It is intended that these arrangements will be for a time-limited period and sufficient notice will be given before any changes are made.

9. Can EU notified body certificates be used to enable a manufacturer to affix the UKCA marking?

No. For UKCA marking to be affixed, any third-party conformity assessment must be undertaken by a UK approved body.

However, provided that CE marking has been legitimately affixed the product can be placed on the UK market after exit day. There is no need to affix UKCA marking in addition to the CE marking. It is intended that this approach will be time limited and sufficient notice will be given before that period ends.

10. How do I transfer an existing conformity assessment certificate to an EU-recognised notified body?

This would be subject to contractual arrangements between the EU-recognised notified body, the UK body, and the manufacturer. A list of EU-recognised notified bodies is available (the UK bodies would be removed from this list in the event of a no deal scenario).

11. Will manufacturers supplying products to the UK and EU-27 be required to issue two Declarations of Performance for the same product?

If the obligations of the EU and UK standard for the product are the same (which they will be immediately after the UK leaves the EU) and the product has been legitimately affixed with CE marking, an additional Declaration of Performance is not required for the UK market.

12. For how long will the UK continue to accept CE marked products?

It is intended that this will be for a time-limited period. Government will consult businesses before taking a decision on future arrangements.

13. What is meant in the Regulations by ‘place on the market’ and ‘making a product available on the market’?

References in the UK regime to ‘the market’ will mean the United Kingdom market, rather than meaning the EU market. Apart from that, these definitions will be unchanged and so operators do not need to change their approach in this regard.

‘Placing on the market’ means the first making available of a construction product on the UK market.

‘Making available on the market’ means any supply of a construction product for distribution or use on the UK market in the course of a commercial activity, whether in return for payment or free of charge.

14. What is meant by ‘exit day’?

Exit day is when the UK leaves the European Union as a member state – at 11pm UK time on 31 October 2019 if there’s no deal.

The Government’s latest general guidance on CE Marking, if the UK leaves the EU without a deal can be read via this link: https://www.gov.uk/guidance/construction-products-regulation-if-there-is-no-brexit-deal

The GGF will continue to update Members on any changes as a result of Brexit with or without a deal.

All updates will appear initially on the GGF’s Members First e-newsletter and on the GGF website (news section), if you are a GGF Member and you are currently not receiving Members First but would like to be on the mailing list to receive this news channel, then please contact marketing@ggf.org.uk.