It has been a few months since Brexit, and the United Kingdom’s withdrawal from the EU is still creating a great deal of legal uncertainty for many economic operators, who are required to adhere to the regulatory requirements in the UK as of 1 January 2021. For the time being, those requirements seem to be largely identical to those in the EU, but it is already foreseeable that there may be relevant differences and deviations between EU and UK law in the future. One example is the new Market Surveillance Regulation (EU) 2019/1020 (PDF), which will not be implemented into British national law, according to information provided by the British government. Other examples could include the new Machinery Regulation and the Regulation on Artificial Intelligence, which currently exists in the form of a Commission Proposal (as we reported).
Product marking requirements: which markings apply when and where?
Such differences may be particularly relevant with regard to CE and UKCA/UKNI product markings.
During the transitional period from 1 January 2021 through 31 December 2021, products which are imported to the British market from the EU may continue to have CE marking only (as we reported). The only exception which applies in this one-year transitional period is for products whose conformity assessment procedures require the involvement of a notified body and which have been using a notified body in the United Kingdom, in which case the product must be equipped with UKCA marking right away. As of 1 January 2022, products imported into the British market must have UKCA marking: products with CE marking alone will no longer be allowed into circulation in the United Kingdom. But as of 1 January 2022, products intended for both markets may have both CE and UKCA marking, provided they meet the regulatory requirements in each case.
A longer transitional period applies for construction products and medical devices: products falling into this category may be equipped with CE marking through 30 June 2023.
Another exception applies as of 1 January 2021 for product markings in Northern Ireland, in that Northern Ireland will remain part of the EU single market in accordance with the Northern Ireland Protocol to the Withdrawal Agreement. As of 1 January 2021, products may be placed on the market in Northern Ireland with either CE marking or a combination of CE and UKNI marking, but not with UKNI marking alone.
Roles of economic operators
Since its withdrawal from the EU, the United Kingdom is now classified as a “third country,” and the roles of some European economic operators have changed as a result. For example, distributors which purchase merchandise in the United Kingdom and place them on the market in Europe are automatically considered to be importers and are therefore subject to the legal requirements for importers with regard to conformity and safety. By the same token, economic operators based in the United Kingdom are now required to ensure that their products adhere to applicable British requirements as of the time they are placed on the British market.
Summary and practical recommendations
When Brexit took effect at the start of this year, economic operators were left having to contend with fundamental legal questions and practical challenges which, in case of most products, need to be overcome and resolved within this year. Particularly in light of the constant changes in the European legal framework and the uncertainty as far as the British legal situation is concerned, companies may be well-advised to appoint a suitable agent (authorized representative) in the United Kingdom to observe the British legal situation and the development of harmonized technical rules in that country and to provide feedback so as to effectively counteract the lack of progress in bilateral trade talks.back