UK exits the EU (industrial products)

I posted a number of times in the last six months about European Commission Notices to Operators in different sectors.

22nd January 2018 sees the publication of the latest European Commission Notice to Stakeholders re EU rules in the field of industrial products. This Notice is here.

(1) As of the withdrawal date, the EU rules in the field of non-food and non- agricultural products (industrial products – see indicative list below), whether for use by consumers or professionals, no longer apply to the United Kingdom.

(2) This Notice applies primarily to (the full indicative list is in the Annex to the Notice) : this is a selection (based on the Cardinal EHS Legislation Registers

* products covered by the General Product Safety Directive

* products covered by ROHS

* batteries and waste batteries

* combustion appliances

* products covered by the Eco-design Rules

* simple pressure vessels

* electrical equipment

* machinery

* products covered by the EMF Rules

* measuring instruments

* non-automatic weighing instruments

* pressure equipment

* transportable pressure equipment

* ATEX equipment

* PPE

* marine equipment

(3) This notice should be read in conjunction with any complementary, more specific notices on the legal consequences of the United Kingdom’s withdrawal that may be published with regard to any of the EU laws listed in the annex of this Notice.

(4) EU law designates the importer to be the economic operator established in the EU who places a product from a third country on the EU market. As from the withdrawal date, a manufacturer or importer established in the United Kingdom will no longer be considered as an economic operator established in the EU. Ditto, aneconomic operator established in the EU-27 who, prior to the withdrawal date, was considered as an EU distributor will become an importer for the purposes of EU product legislation.

(5) Currently, EU product legislation does not generally oblige the manufacturer to designate an authorised representative. However, if the manufacturer chooses to do so, the applicable legislation requires the authorised representative to be established in the EU. In addition, specific EU legislation does provide for the obligation to have an authorised representative (e.g. EU legislation on medical devices, transportable pressure equipment, or marine equipment) or a responsible person (cosmetic products) established in the Union.

Authorised representatives or responsible persons established in the United Kingdom will not, as from the withdrawal date, be recognised as authorised representatives or responsible persons for the purposes of the applicable EU product legislation. The Notice advises manufacturers to take the necessary steps to ensure that, as from the withdrawal date, their designated authorised representatives or responsible persons are established in the EU-27.

(6) In some product areas, EU legislation requires the intervention of a qualified third party, known as Notified Body, in the conformity assessment procedure.

(7) EU product legislation requires Notified Bodies to be established in a Member State and be designated by a Member State notifying authority for performing the conformity assessment tasks set out in the relevant act of EU product legislation. Therefore, as from the withdrawal date, UK Notified Bodies will lose their status as EU Notified Bodies and will be removed from the Commission’s information system on notified organisations (NANDO database). As such, UK bodies will not be in a position to perform conformity assessment tasks pursuant to EU product legislation as from the withdrawal date.

(8) When the applicable conformity assessment procedure requires or provides for the possibility of third party intervention, a certificate delivered by a body recognised as an EU Notified Body at the time of the placing of that product on the market will be required for products placed on the market as from the withdrawal date.

(9) The Notice advises economic operators to take the necessary steps to ensure that, where the applicable conformity assessment procedures require the intervention of a Notified Body, they will hold certificates issued by an EU-27 Notified Body to demonstrate compliance for their products placed on the market as from the withdrawal date.

(10) Where economic operators hold certificates issued by a UK Notified Body prior to the withdrawal date and plan to continue placing the product concerned on the EU-27 market as from the withdrawal date, the Notice advises the operators to consider either applying for a new certificate issued by an EU-27 Notified Body or arranging for a transfer – on the basis of a contractual arrangement between the manufacturer, the UK Notified Body, and the EU- 27 Notified Body – of the file and the corresponding certificate from the UK Notified Body to an EU-27 Notified Body, which would then take over the responsibility for that certificate. This responsibility depends on the specific conformity assessment procedure required for the product concerned under the applicable product legislation set out in the Annex.

[The Withdrawal Date is 00:00 30 March 2019, both the EU and the UK authorities have signalled a willingness to agree a Transition Period – I will post separately about this.]

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