Brexit: impacts on the medi­cal devices industry

Impacts of a (’no-deal’) Brexit on the medi­cal devices industry

Con­se­quen­ces of the Brexit for com­pa­nies with their prin­ci­pal place of busi­ness in the United Kingdom

For manu­fac­tu­r­ers of medi­cal devices who have their prin­ci­pal place of busi­ness in the United King­dom and wish to con­ti­nue to place their pro­ducts on the mar­ket in the Uni­on, this means that as from the date on which Bri­tain lea­ves the EU (set for 29 March 2019) they requi­re an aut­ho­ri­sed repre­sen­ta­ti­ve within the EU-27.

Con­se­quen­ces of the Brexit for com­pa­nies which have their prin­ci­pal place of busi­ness out­side the EU and a Bri­tish aut­ho­ri­sed representative

As from the time of the Brexit, manu­fac­tu­r­ers of medi­cal devices who have up to now work­ed tog­e­ther with a Bri­tish EC REP will be obli­ged to seek a new aut­ho­ri­sed repre­sen­ta­ti­ve out­side the United King­dom in one of the EU-27 sta­tes. Repre­sen­ta­ti­on in the EU by an aut­ho­ri­sed repre­sen­ta­ti­ve in the United King­dom will no lon­ger be pos­si­ble from the moment Bri­tain lea­ves the Union.

Con­se­quen­ces of the Brexit for pro­ducts on the EU-27 mar­ket and the Bri­tish mar­ket which do not (yet) have a CE marking

As as result of the Brexit, the Medi­ci­nes and Health­ca­re Pro­ducts Regu­la­to­ry Agen­cy (MHRA) expects that after 29 March 2019 the EU-27 will no lon­ger accept cer­ti­fi­ca­tes issued by Bri­tish noti­fied bodies. That means that manu­fac­tu­r­ers who want to place pro­ducts on the mar­ket in the EU-27 must app­ly for recer­ti­fi­ca­ti­on by a noti­fied body in the EU-27.

For the Bri­tish mar­ket, by con­trast, the MHRA intends to give the exis­ting Bri­tish noti­fied bodies an ongo­ing legal sta­tus in order to ack­now­ledge the vali­di­ty of cer­ti­fi­ca­tes they issue befo­re 29 March 2019. Cer­ti­fi­ca­tes issued by the Bri­tish noti­fied bodies for pro­ducts which have been pla­ced on the Bri­tish mar­ket will thus con­ti­nue to be valid after Britain’s departure.

With regard to new pro­ducts which have not yet been pla­ced on the mar­ket but are inten­ded to be pla­ced on the mar­ket in Bri­tain in the future, manu­fac­tu­r­ers are at first recom­men­ded only to coope­ra­te with a noti­fied body in a sta­te of the EU-27.

If a pro­duct is affi­xed with the CE mar­king in accordance with the EU Direc­ti­ves or EU regu­la­ti­ons, it may con­ti­nue to be sold on the Bri­tish and EU-27 markets.

Regis­tra­ti­on of medi­cal devices in the United King­dom after the Brexit

The so-called Medi­cal Device Regu­la­ti­on 2002 (MDR UK 2002) imple­ments Direc­ti­ves 90/385/EEC, 93/42/EEC and 98/79/EC in natio­nal Bri­tish law. Fol­lo­wing the draft of MDR UK 2019, amend­ments will be car­ri­ed out on MDR UK 2002 in par­ti­cu­lar, which will be neces­sa­ry when the depar­tu­re of the United King­dom from the EU comes into effect.

As from 29 March 2019, all pro­ducts pla­ced on the Bri­tish mar­ket will have to be regis­tered with the MHRA. Regis­tra­ti­on will only be pos­si­ble if evi­dence of a ‘regis­tered office’ in the United King­dom is pro­vi­ded. Depen­ding on the risk cate­go­ry of the pro­duct, the­re will be cer­tain tran­si­tio­nal peri­ods for the­se regis­tra­ti­on obligations.

The United King­dom will con­ti­nue to accept exis­ting aut­ho­ri­sa­ti­ons for cli­ni­cal stu­dies, so that it will not be neces­sa­ry to re-submit appli­ca­ti­ons in respect of these.

With the MDR UK 2019, a manu­fac­tu­rer who does not have a dea­ler­ship in the United King­dom but wis­hes to place pro­ducts on the mar­ket the­re must appoint a respon­si­ble Bri­tish per­son (‘respon­si­ble per­son’) to act on his behalf. The respon­si­ble per­son pro­vi­des evi­dence of his or her sta­tus by means of a let­ter of appoint­ment or signed con­tract. This pro­vi­des con­fir­ma­ti­on that the respon­si­ble per­son is acting for pro­ducts on the Bri­tish mar­ket with the appr­oval of the for­eign manu­fac­tu­rer and in harm­o­ny with the legislation.

Sum­ma­ry

The Brexit will have las­ting impacts on the who­le of the medi­cal devices indus­try. Tho­se affec­ted will include both Bri­tish manu­fac­tu­r­ers, who­se pro­ducts are inten­ded to be pla­ced on the mar­ket in the EU and who the­r­e­fo­re need an EC REP in the future, and manu­fac­tu­r­ers from the EU-27 sta­tes, who will in future be depen­dent on coope­ra­ti­on with a Bri­tish respon­si­ble per­son for the sale of new pro­ducts in the United King­dom. Non-European manu­fac­tu­r­ers with an EC REP in the United King­dom will be obli­ged to appoint a new aut­ho­ri­sed repre­sen­ta­ti­ve in one of the EU-27 sta­tes. The smooth con­ti­nua­tion of the sale of pro­ducts in the United King­dom and the EU-27 sta­tes thus neces­si­ta­tes struc­tu­ral adjus­t­ments to the pre­vious coope­ra­ti­on models. The need to come to terms with the issue of chan­ging the pre­vious aut­ho­ri­sed repre­sen­ta­ti­ve, inclu­ding the modi­fi­ca­ti­ons to pro­duct infor­ma­ti­on and alte­red regis­tra­ti­on obli­ga­ti­ons that accom­pa­ny it, will be unavoidable.

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