UKCA Mark (UK Brexit)

Exit day is 31st October (this is the date in a Statutory Instrument)

Please remember the UK is bringing in a new UKCA Mark, applicable after Exit day.

The Feb issued instructions on UKCA Mark are here.

This applies to certified goods sold in the UK.

Please follow the links carefully, as some goods will require the UKCA Mark immediately after Exit day.

Other goods will be able to continue with the CE Mark for a limited period.

UK Product Safety and Metrology (UK Brexit)

Exit day is 31st October (this date is in a Statutory Instrument)

Today, the UK Office for Product Safety & Standards re-issued with updates the March Instructions on Product Safety and Metrology.

This September document – UK Product Safety and Metrology Guidance in a ‘no deal’ Brexit – is here.

The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, as amended by the Product Safety, Metrology and Mutual Recognition Agreement (Amendment) (EU Exit) Regulations 2019, amend local law and retained EU Law, from Exit day.

These Brexit laws are in the subscribers’ Brexit Law List and consolidation is well underway – in the Brexit Consolidated Law List (next upload – start of October).

(1) The Brexit Law alters those legal provisions in UK regulations and retained EU law that would not work effectively when the UK leaves the EU without changes. The Brexit Law objective is to create a functioning regulated UK market.

(2) The safety and other technical requirements are not specifically changed, but processes are changed.

(3) Products lawfully placed on the EU market before the UK leaves the EU can continue to circulate in the UK (for a temporary period, consultation will occur before this period ends, and a new Brexit Law is required for the temporary period to end).

(4) Lawfully CE marked products will continue to be accepted by the UK, intended to be for a time limited period (see above).

(5) Products being placed on the UK market for the first time after the UK leaves the EU must meet the same technical requirements as before – but labelling or notification requirements will change.

(6) A new UK Conformity Assessed marking (“UKCA”) may be used for products that will be placed on the UK market where conformity assessment has been carried out by a UK approved body (formerly a notified body). This is because after Exit day, the EU no longer recognises UK based Notified Bodies and so they will become UK Approved Bodies. The UKCA mark is not yet set up.

(7) Products intended to be exported to the EU that require an independent third-party conformity assessment – this assessment must be carried out by an EU based Notified Body and the products must be ‘CE’ marked (where required) once they have been successfully assessed. After Exit day, this cannot be carried out by a UK Approved Body.

(8) Where currently allowed, UK manufacturers can continue to self-declare that products meet EU rules and place these products on either the UK or EU markets. [please recheck this with the EU import country]

(9) The UK will continue to recognise EU Notified Body conformity assessments, for a time limited period, so manufacturers and importers will still be able to place goods on the UK market lawfully bearing the CE marking where they have been assessed by an EU Notified Body (where required).

(10) The UK will publish a list of references to designated standards that will have the same function as harmonised standards and give presumption of conformity to legal requirements. On Exit day, these designated standards will be the same as the harmonised standards.

(11) When the UK leaves the EU, the role and responsibilities of the manufacturer will be unchanged. However, some UK businesses which bring products into the UK from an EEA State and who were previously “distributors” from Exit day become “importers” acquiring new legal duties, including complying with an enhanced set of requirements to check product compliance as well as to keep documentation and ensure their address appears on the product.

(12) There is an 18-month transitional period for these “new” importers during which they can put their details on documentation accompanying the product, rather than on the product itself. The same will apply to imports from Switzerland for certain products, for the same 18- month period.

(13) Cosmetic products that have the information of the EU responsible person on the container and packaging will be allowed on the UK market for 2 years after the UK leaves the EU, after which the container and packaging will need to bear the name and address of the UK responsible person.

(14) The EU will not have a transitional period and so UK manufacturers exporting to the EU will need immediately after Exit day to have the address of the relevant EU responsible person on the goods they are exporting.

Please read the September document carefully, and also re-check with the EU import country.

IP and Brexit (UK Brexit)

Exit day is 31st October (this day is set out in a Statutory Instrument)

This Blog does not post on intellectual property. But, in the interests of completeness, and because the matter of exhaustion of IP rights is a (possibly overlooked) aspect of the circulation of goods, this Blog post publicises the UK Intellectual Property Office (IPO) instructions on IP and Brexit (updated today 11th September).

Here

Extract

Intellectual property rights give rights holders the right to control distribution and re-sale of a product that is protected by IP after they have been put on the market.

Currently, exhaustion of IP rights occurs in the UK when an IP-protected good is placed on the market anywhere in the European Economic Area (EEA). This means that rights holders (such as the owner of a brand) may not prevent the movement of those goods within the EEA. These goods are known as parallel goods, which are genuine goods (that is not counterfeit).

While the UK remains a full member of the EU, intellectual property rights remain exhausted after the first sale of a good. This is with the right holders permission and within the territory of the European Economic Area (EEA).

If there is a no-deal, the UK will continue to recognise EEA exhaustion so the rules affecting imports of goods into the UK will not change. Goods placed on the market [in the EU], after the UK has exited the EU, will continue to be considered exhausted in the UK. This means that parallel imports of these genuine goods from the EEA to the UK will continue unaffected.

However, there may be restrictions on the parallel export of goods from the UK to the EEA. This is because goods placed on the UK market, after the UK has exited the EU, will not be considered exhausted in the EEA.

Businesses that wish to export IP-protected goods to the EEA that have already been legitimately put on the market in the UK, may need the rights holder’s consent. All businesses may wish to seek legal advice on how this arrangement could affect their business model or intellectual property rights.

Foreign Students (UK Brexit)

Exit day is 31st October (this date is in a Statutory Instrument)

Today, 11th September, HMG announced foreign students would be offered a Graduate Route of 2-year stay for work after study.

Here

This will be a 2-year post-study work visa, open to all graduates.

Students will need to have successfully completed a degree from a trusted UK university or higher education provider which has a proven track record in upholding immigration checks and other rules on studying in the UK.

This will sit alongside the 3-year Euro TLR announced for EU nationals arriving after Exit day. (See recent post)

And the Ireland-UK Common Travel Area (CTA).

UPDATE : A second announcement on the 2-year post-study work visas is here.

Other sector announcements were the creation of a new fast-track visa route for scientists and the removal of the limit on PHD students moving into the skilled work visa route.

Manufactured Goods (UK Brexit)

Exit day is 31st October (this is the date in a Statutory Instrument)

Yesterday (10th Sept) HMG re-published its instructions on Manufactured Goods.

Here

I did Blog post these instructions in March, note the UKCA mark. The UKCA mark is not available yet. CE marks will continue for a temporary period.

The Sept publication has an update reminder that Distributors will be Importers.

By now, everyone should be Brexit Ready.

The specific text re Importers – (note the EEA and Switzerland reference)

If you are currently a UK distributor, you need to confirm whether you or your supplier will become an ‘importer’ once the UK leaves the EU. This will usually be the case if you are the one bringing goods into the UK from the EU, EEA or Switzerland, and want to put them on the UK market after Brexit.

If you are becoming an ‘importer’ you will need to ensure you understand your legal obligations. You will need to make sure:

• goods are labelled with your company’s details, including your company’s name and a contact address (for 18 months after Brexit you can provide these details on the accompanying documentation rather than on the good itself)

• the correct conformity assessment procedures have been carried out and that any good you import carries the correct conformity markings

• the manufacturer has drawn up the correct technical documentation and complied with their labelling requirements

• you maintain a copy of the declaration of conformity for a period of 10 years

• you do not place a good you import on the market if you have reason to believe it does not conform with the relevant essential requirements

Export Health Certificates (NI Brexit)

Exit day is 31st October (this date is set out in a statutory instrument)

An Export Health Certificate (EHC) is an official document that confirms a food or animal export meets the health and quality requirements of the importing country.

The EHC has to be signed by a vet or other qualified person in the exporting country after they have inspected the goods.

Food products being imported into the EU from a non-member state require EHCs.

They’re signed by vets to assure the importing country that produce is safe and without them trade can’t happen.

Around 18,000 of them a year are currently produced in Northern Ireland mostly to cover the trade in live animals to Britain.

This Blog does not cover animal or food trade, but many have asked me questions on this matter, and so here is my Blog post.

Various persons raise the issue of scarcity of vets and EHC costs, in Northern Ireland. It is possible the UK could cut a deal that would see it follow the EU’s rules for a period after Brexit, allowing trade to continue while a permanent arrangement was worked out. But this would not get around the need for a huge number of trade certificates, in any event.

DAERA (the relevant NI agency) says it is recruiting new staff and retraining existing ones to cope with the new trading arrangements.

“While we anticipate that current trade will adjust, it is difficult to gauge demand for certification as businesses may not make decisions until post Brexit. We are currently assessing the resources available and how we will prioritise based on the potential scale of the demands.”

It is encouraging businesses to sign up to advice workshops it’s beginning to run from next week.

Exit day changes (update) (UK Brexit)

Exit day is 31st October (this date is in a UK Statutory Instrument that is commenced)

This post updates a post I wrote a few days ago, of similar title.

Today, the House of Lords agreed (without amendment) the Bill – the European Union (Withdrawal) (No. 6) Bill 2019 – brought by persons other than the Government of Johnson-DUP. This Bill now gains Royal Assent by a matter of course.

The Act (therefore duly enacted) will oblige the Prime Minister to seek to extend the Exit day to 31st January 2020 by letter in the form set out in the Schedule (and to accept immediately any EU agreement to extension – and to accept any other EU proposed extension in two days unless the House of Commons rejects it) –

unless by 19th October Parliament consents to Exit without a deal or it agrees to a new deal with the EU.

The Act will also oblige the Government to make regular reports to Parliament on the progress of negotiations with the EU.

The bill was amended in committee in the House of Commons. The amendment added a statement to the bill setting out that the intention of the request for an extension to article 50 would be to pass a withdrawal agreement bill.

This, however, does not create a legal duty to pass a withdrawal agreement bill.

The Johnson-DUP administration already has Crown powers (available to it) to suspend Parliament during dates in September and October. It is expected to suspend Parliament on Monday, after a second request of Opposition Parties to dissolve Parliament so that a General Election may be held. Opposition Parties this morning agreed to oppose the Johnson-DUP administration in this request.

The Prime Minister said today that he would not extend the Exit day. The EU appears to signal that it could regard enactment of the Act as a legal request, even if it’s not made by the Prime Minister.

It is also possible a deal is agreed with the EU that is accepted by Parliament, by the 19th October, but this looks remote.

I will next issue a Blog post on the matter of Exit day changes in mid October, on the assumption that (1) Parliament is not dissolved to hold a General Election, and (2) Parliament is suspended until then.