What does Brexit mean for CE Marking?
The other day, I was having a conversation with one of my esteemed clients and he asked whether Brexit means the end for CE marking of Construction Products? Should we just forget it? Now that is definitely a very significant and important question!
I would not like to hazard a guess at how much time, effort and of course money, has been spent by product manufacturers in the UK on meeting the requirements of the 24 or so, European CE Product Directives. I think it’s best I come clean right now and confess that I do not have a crystal ball, or any other means of seeing the future with any degree of certainty. However there are a few factors which can give us food for thought and may have an influence on where we end up. Also there are now a few documents appearing, albeit in draft form, that may also give us some clues. For the rest of this article I will just be talking about the Construction Products Regulation.
Communication from the European Commission
I am sure you have all seen the ‘Letter to Economic Operators’ which the Commission published in January this year? No? Well, in the usual convoluted and legal way, the letter aims to warn us of the following main points:
- The UK will lose its rights as an EU member state after the 30th March 2019 – the “withdrawal date”
- Manufacturers and distributors established in the UK will lose their status as ‘economic operators’ within the EU
- Furthermore, any distributors based in other member states acquiring products from the UK will then be deemed ‘importers’, which have different legal requirements
- UK established ‘notified bodies’ (who carry out testing, inspection and certification in relation to CE marking) will also lose their ‘notified’ status.
- If you are a manufacturer with, say a CE certificate, from one of these UK notified bodies, then you should consider transferring it to a notified body in a EU member state.
Now before we hit the panic button just yet, be assured that British notified bodies are already challenging this approach.
The draft withdrawal Agreement TF50 (2018) 33
This document is the long awaited agreement that will set out the rules for our withdrawal and in some respects our ongoing relationship with the EU. It is of course still a draft which will be negotiated further. Be warned, it is 119 pages long and not a fun read. The latest version, hot off the press (28th February) can be found here:
As far as this discussion goes, articles 36 to 42 are the interesting bit. They suggest that notified bodies in the UK are ‘downgraded’ to ‘Conformity Assessment Bodies’ and that any data on CE conformity assessments must be transferred to EU notified bodies at the certificate holder’s request. No doubt this is to assist transfer of manufacturers’ CE certification to an EU notified body. Once again, I am sure the UK notified bodies will have something to say about that and won’t relish their European cousins acquiring their CE customers!
UK Legal Situation
There is also the often over looked UK Construction Products Regulation (SI 2013/1387) which supports the EU Construction Products Regulation by setting out the enforcement regime for the EU regulation. Note that this is independent UK legislation and is not necessarily dependant on what the EU does next. No doubt this will need to be amended and may form the basis of legal requirements for construction products in the UK in the future.
What’s the potential impact?
So, it seems that CE mark certification as we know it is certainly going to change in the UK. However, we need to ask what impact this will have in real terms on UK construction product manufacturers. Obviously those exporting to the EU will still need to CE mark. Just for interest I have worked as an independent consultant on CE marking implementation with 77 manufacturers of construction products in the UK to date. Only 3 of these, that I am aware of, actually export anything, and only 2 of those to the EU. For construction products, the UK is definitely a much greater importer than exporter.
In reverse, the question is whether the UK will require a CE mark for imported products from the EU, or perhaps insist on a different method for demonstration of conformity with UK Regulations
At this point, you are probably thinking that we can just accept that in the UK CE marking will disappear. However, there is another issue closer to home, that I think will have much greater influence on the future for construction product certification than Brexit.
The recent tragic events at Grenfell Tower will, I believe, change the whole landscape for the need to demonstrate product conformity. This fire where at least 79 people died has resulted in 2 ongoing independent enquiries. Unfortunately, it is not the only example, Lakanal House in Camberwell for example where 6 people died in 2009. The first enquiry is in relation to the specific circumstances which happened at Grenfell and the second is a more wide reaching review of UK Building Regulations in relation to Fire safety entitled ‘Building a Safer Future’. I shall not dwell on the specific circumstances at Grenfell, but ‘Building a Safer Future’ overseen by the eminently qualified Dame Judith Hackitt, has been published as an interim report and already makes some hard hitting statements in the summary. The general conclusion of the summary of the report is that:
“the current regulatory system for ensuring fire safety in high-rise and complex buildings is not fit for purpose.”
Furthermore, in the discussion for the reasons for this:
“Compliance, enforcement and sanctions processes are too weak. What is being designed is not what is being built and there is a lack of robust change control. The lack of meaningful sanctions does not drive the right behaviours.”
In particular relevance to this article:
“Quality assurance and products must be properly tested and certified and there is a need to ensure oversight of the quality of installation work. Marketing of products must be clear and easy to interpret.”
I cannot discuss the entire report in this article as it runs to 118 pages. For more information the interim report can be viewed here:
Of course this report is talking specifically about fire safety, but surely the same comments could apply to the other ‘Basic Works Requirements’ of the CPR? It’s worth remembering that although the EU Construction Products Regulation has its flaws, it does indeed provide a legal basis for ensuring that the safety-critical characteristics of construction products are declared in a truthful and consistent way.
At this point of course, there is no firm conclusion as to where we will be in 1 or 2 years’ time. To think back to my friend’s original question, in my opinion, although CE marking as we know will certainly change due to Brexit, the need for construction product certification of some form in the UK will not disappear but is likely to become even more important in the near future. Assuming Dame Judith Hackitt’s report is taken seriously, it may be that we end up with a ‘UK Mark’ which may take the place of, and even be mutually recognised as an equivalent to a CE mark. Whether the application of such a mark will be compulsory or voluntary remains to be seen.
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