Guidance providing practical information on the legal requirements that would be required in a no deal scenario.
To provide a summary of the actions that would be required in a no deal scenario. The proposed legal requirements are contained within the draft legislation published in December 2018. The statutory instrument was made in March 2019 and will come into effect on exit day, if there’s no deal.
Annex A of this guidance sets out additional information for current UK notified bodies.
Annex B provides information in relation to authorised representatives.
Annex C provides detail in relation to the technical assessment bodies (‘TABs’), for those construction products that are not fully covered by a harmonised standard.
Before the UK leaves the EU
The Construction Products Regulation (CPR) lays down harmonised rules (‘standards’) for the marketing of construction products. Standards are developed by European standardisation bodies, and define the methods and the criteria for assessing the performance of the product in relation to its “essential characteristics”. Standards become harmonised when the reference to the standard is published in the Official Journal of the European Union. View a list of harmonised standards under the CPR.
Where a harmonised standard exists for a product the CPR places obligations on manufacturers, distributors and importers (known collectively as ‘economic operators’) of that product when it is placed on the market. The product must have a declaration of performance and have been affixed with ‘CE’ marking.
In order to safeguard the reliability of the declaration of performance, the CPR provides for systems of “Assessment and Verification of Constancy of Performance” (AVCP). Where third party assessment of the performance of construction products is required, this assessment may only be undertaken by authorised ‘notified bodies’. Notified bodies are accredited (in the UK this is by the United Kingdom Accreditation Service) and Member States then formally ‘notify’ the European Commission and other European Union countries. Those notified bodies are listed on the EU’s database (the ‘New Approach Notified and Designated Organisations’ database - known as ‘NANDO’).
Where the standard requires third-party assessment, that notified body’s 4-digit identification number (as listed on the NANDO database) must be affixed to the product.
The CPR also allows manufacturers to affix CE marking to products that are not fully covered by a harmonised standard. This is by applying for a technical assessment of their product based on a ‘European Assessment Document’ (EAD). EADs are devised by the group of ‘technical assessment bodies’. The approach for products that are not fully covered by a harmonised standard is at Annex C.
After the UK leaves the EU if there’s no deal
The government laid a draft statutory instrument on 18 December 2018 detailing the arrangements that will apply. The statutory instrument was made in March 2019 and will come into effect as soon as the UK leaves the EU.
All existing European harmonised standards will become UK ‘designated standards’. This will mean that immediately following the UK’s exit from the EU, the European harmonised standards and UK designated standards will be identical. The government will publish and maintain the list of UK designated standards. This will be a UK-wide approach with the standards applying at UK level.
Products on the UK market
Goods legitimately affixed with CE marking already on the UK market before the UK leaves the EU will be able to continue to circulate in the UK.
Additionally, goods which are made and assessed against EU harmonised standards and legitimately carry the CE marking can continue to be placed on the UK market. It is intended that these arrangements will be for a time-limited period, but our draft legislation itself does not limit the duration of this provision. Products being placed on the UK market in this way must be compliant with the obligations of the EU’s Construction Products Regulation.
This includes that they:
- be covered by an EU harmonised standard which is the same as a UK designated standard (as noted above, immediately following exit these will be identical)
- are affixed with CE marking
- be accompanied by a manufacturer’s declaration of performance
- have been assessed by an EU-recognised notified body, where third party assessment is required
Notified bodies operating under the CPR and based in the UK will be granted new UK ‘approved body’ status and listed on a new UK database (see Annex A). Approved bodies will be able to undertake conformity assessment activity for UK designated standards. Where an approved body has undertaken the assessment, the manufacturer (or their authorised representative) must affix UK marking. Rules around affixing the new UK conformity marking will remain the same as current CE marking. Further details on using the UKCA marking were published in on 2 February 2019. Where a UK notified body (which becomes a UK approved body after exit day) has carried out tasks or issued certification in relation to the AVCP for that product before exit day, those tasks and/or that certification may be used to support affixing of UK marking where the product is placed on the UK market after exit day.
Manufacturers will not need to use the new UK mark if they have complied with the EU requirements and affixed CE marking, having had any required third-party conformity assessment activity undertaken by an EU recognised notified body. As set out above, it is intended that these arrangements will be for a time time-limited period.
Manufacturers will only be able to continue relying on assessment by a UK-based approved body after the UK leaves the EU if the UK marking has been used. Where certificates have been transferred to an EU-recognised notified body, the CE marking can continue to be used for the UK market.
Where the marking is affixed without the need of notified body certificates then, for the UK market, during the time-limited period of on-going recognition of CE marking, manufacturers will have the choice to use either UK or CE marking (or both). Where marking is affixed on this basis, for exporting to the EU, CE marking will be needed.
UK manufacturers exporting to the EU
In a no deal scenario it will be a matter for the European Commission to determine the arrangements for products on the EU market from the date that the UK leaves the EU.
The European Commission published a notice to stakeholders which states that “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). As such, UK bodies will not be in a position to perform conformity assessment tasks pursuant to Union product legislation as from the withdrawal date.”
In terms of the effect of this, the notice advised that:
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, they are advised 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 EU27 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.
The UK is retaining protections in domestic law which provide powers for market surveillance enforcement to ensure that unsafe and non-compliant products can swiftly be removed from the UK market. The government is developing UK replacements to the EU databases we will no longer have access to. This includes a new product safety market surveillance database to ensure we are able to quickly identify new threats, to mount coordinated and rapid responses to those threats, and to target the interception of high-risk products, including imports.
All operators intending to place products on the UK market when or after the UK leaves the EU will want to consider the actions outlined below.
All manufacturers placing products on the EU market will need to take the actions outlined below if they intend to place products on the EU market when or after the UK leaves the EU.
Actions for businesses and other stakeholders
Manufacturers placing products on the UK market should note:
- Where the European harmonised standard and the UK designated standard are the same, if the EU requirements are met (including CE marking) the product can continue to be placed on the UK market without any need for reassessment or re-marking. This includes that any third-party conformity assessment be carried out by an EU-recognised notified body. This will apply for a time-limited period and sufficient notice will be given to businesses before that period ends.
- Products that meet UK requirements and bear a UK conformity marking can be placed on the UK market. For those products, any third-party assessment must have been carried out by a UK-recognised conformity assessment body.
- UK-based notified bodies will become UK approved bodies and will be listed on a new UK database (see Annex A).
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 change in status will bring new obligations such as a requirement for importers to label their products with their name and address. Other obligations of importers include: that they must ensure that the AVCP has been carried out by the manufacturer; that the manufacturer has drawn up the technical documentation; that the product bears the conformity marking; and that the manufacturer has complied with their labelling obligations.
In addition, importers must not place products on the market if they have reason to believe that the product does not comply with the applicable requirements of the CPR. UK economic operators should consider taking professional advice and consulting with their EU-based distributors (and customers who are retailers), where relevant.
Manufacturers placing products on the EU market should note:
- The European Commission’s notice to stakeholders advised that where “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, they are advised to consider either applying for a new certificate issued by an EU-27 Notified Body or arranging for a transfer of the file and the corresponding certificate from the UK Notified Body to an EU-27 Notified Body”. Any such transfer would be on the basis of a contractual arrangement between the manufacturer, the UK Notified Body, and the EU Notified Body.
- In the above scenario, the product would need to be re-marked with the new EU-recognised notified body’s four-digit number.
- A list of EU-recognised notified bodies can be found on the NANDO database. The European Commission has advised that in a no deal scenario, after the UK leaves the EU UK-based bodies will no longer be listed on this database.
- In practice, products must be placed on the EU market by a legal entity established in the EU, and UK manufacturers will be required to work with an EU-based importer or distributor.
- Customers and/or suppliers in the EU should gain an understanding how this guidance impacts their responsibilities.
For operators exporting to the EU, the European Commission’s notice states that “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 Union.” The notice also sets out the effect of this is that relevant operators “will have to comply with the specific obligations relevant to an importer, which are different from those of a distributor”. Operators should consider taking professional advice as to how their obligations would change.
Annex A: UK Approved Bodies
If the UK leaves the EU without a deal, then existing UK notified bodies operating under the CPR will be offered conversion to UK approved body status. There will be no need for existing UK notified bodies to seek re-accreditation in order to benefit from UK approved body status.
Notified bodies established in the UK were contacted on 28 February 2019 with more details about how the process of conversion will be managed. Where bodies act under different legislation, they should only be contacted by government once.
Where UK notified bodies do intend to operate under the new UK framework, they will be automatically granted this status as soon as the UK leaves the EU. They will be listed on a UK version of the NANDO database and given a 4-digit approved body number. The current intention is that this will be the same number as the existing notified body number, to allow for identification of the relevant approved bodies responsible for CE marked products already in use or circulation on the market.
Where UK notified bodies indicate that they do not intend to operate under the UK framework, their status as a notified body will be withdrawn when the UK leaves the EU and they will not be listed in the new UK database of Approved Bodies. As part of this, bodies not intending to operate will need to either transfer relevant documentation to another approved body (or the relevant government department – the Ministry of Housing, Communities and Local Government) or to retain the relevant documentation for a specified period.
The United Kingdom Accreditation Service’s (UKAS) role as the UK’s national accreditation body for the CPR will remain as it is now.
Annex B: Authorised representatives
Before the UK leaves the EU
Manufacturers may appoint an authorised representative to carry out certain tasks on their behalf. The appointment of an authorised representative is optional. An authorised representative is appointed by written mandate and performs the tasks specified in that mandate. The drawing up of technical documentation may not form part of the authorised representative’s mandate.
After the UK leaves the EU if there’s no deal
UK-based authorised representatives will no longer be recognised under EU law. This means they will not be recognised as able to carry out tasks on the manufacturer’s behalf in the EU.
To minimise disruption immediately after exit, where a manufacturer has issued a written mandate, an existing authorised representative based in an EU country will continue to be recognised in the UK for a time-limited period. However, new authorised representatives will need to be based in the UK to be recognised under UK law.
The implications outlined below relate to manufacturers who have appointed, or may in future chose to appoint, authorised representatives. The use of authorised representatives will remain voluntary.
Businesses with an existing mandate with an authorised representative based in an EU country will not be impacted in the short term and can continue to place products on the EU and UK markets in the same way.
Actions for businesses and other stakeholders
Manufacturers with an authorised representative based in the UK will need to appoint a new authorised representative in an EU country if they want an authorised representative to carry out tasks on their behalf within the EU.
Manufacturers wishing to appoint a new authorised representative to carry out tasks on their behalf in the UK will need to appoint a representative located in the UK.
Annex C: Technical Assessment Bodies
Before the UK leaves the EU
Under the Construction Products Regulation, use of the relevant harmonised standards is mandatory.
In addition, the Construction Products Regulation provides an optional route for manufacturers to affix a marking to products that are not fully covered by a harmonised standard. This is by applying for a technical assessment of their product based on a European assessment document. European assessment documents are devised by the group of technical assessment bodies (known as the European Organisation for Technical Assessment - ‘EOTA’). Such products are then affixed with CE marking.
Technical assessment bodies are accredited by Member States, notified to the European Commission and other EU countries, and listed on the NANDO database.
After the UK leaves the EU if there’s no deal
In a no deal scenario we will retain the status of UK-based technical assessment bodies to carry out technical assessment of construction products for the UK market. Such products will then be affixed with UK marking.
Technical assessment bodies based in the UK will be granted status as a ‘UK technical assessment body’ and listed on a new UK database. Technical assessment bodies will be responsible for drawing up and adopting UK assessment documents. The UK technical assessment bodies may collectively form an organisation to undertake the role of developing and adopting assessment documents.
The Secretary of State will publish a list of the assessment documents that have been adopted by the UK technical assessment bodies.
UK-based technical assessment bodies will become UK technical assessment bodies after the UK leaves the EU and will be listed on a new UK database. UK-based technical assessment bodies were contacted on 28 February 2019 with more details about how the process of conversion will be managed. They will not need to seek re-accreditation to benefit from UK technical assessment body status.
Manufacturers will be able to obtain a UK mark for products not fully covered by a UK designated standard, as long as the technical assessment has been undertaken by a UK-recognised technical assessment body.
UK technical assessment bodies may use a European assessment document that was adopted before the UK left the European Union, provided that they have obtained any necessary consent to do so from the European Organisation for Technical Assessment.
Manufacturers wanting to affix CE marking for products not fully covered by a harmonised standard after the UK has left the EU will need to be assessed by an EU-recognised technical assessment body.
Frequently asked questions
1. Will a no deal scenario give rise to the risk of unsafe products on the UK market?
The Construction Products (Amendment etc.) (EU Exit) Regulations 2019 were made in March 2019. These regulations will ensure that the same standards that applied before exit day will continue to apply after exit. The UK authorities’ ability to remove non-compliant products from the UK market is unchanged. We are also implementing the recommendations of the Hackitt report to strengthen regulatory oversight of construction products at a national level.
2. 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.
3. 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.
4. 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.
5. 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.
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 Brexit 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-27 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. See Article 2 in Regulation (EU) No 305/2011 for more information.
‘Placing on the market’ means the first making available of a construction product on the United Kingdom market.
‘Making available on the market’ means any supply of a construction product for distribution or use on the United Kingdom market in the course of a commercial activity, whether in return for payment or free of charge.