Pla­cing pro­ducts on the Bri­tish mar­ket: what do com­pa­nies need to keep in mind as of 1 Janu­ary 2021?

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.

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