Manufacturers


On Friday 1 January 2021, the European Union (Withdrawal) Act 2018 came into force that retains EU-derived legislation - including product safety legislation - in domestic UK law. Other regulations already passed by Parliament also came into force to resolve gaps arising from leaving the EU. For example: references to EU bodies we are no longer members of. The aim was not to alter safety and other technical rules & regulations themselves - but to ensure that by making limited changes, we have a functioning UK market after Exit Day.


Product standards within the UK


Construction Products Regulation: Great Britain


After Exit Day, all existing European harmonised standards will become UK designated standards. The UK Government will publish and maintain a list of designated standards that apply within the United Kingdom to give a presumption of conformity for legal purposes. The list can be found here: https://www.gov.uk/government/publications/designated-standards-construction-products

Guidance on the Construction Products Regulation in Great Britain (England, Wales & Scotland) after Exit Day is here: www.gov.uk/guidance/construction-products-regulation-from-1-january-2021   N.B. There are different regs for Great Britain and for Northern Ireland. Please see section below for CPR Northern Ireland.
 

Placing Goods on the Market: Great Britain


What manufacturers must do after Exit Day depends on which market you are placing goods on: (a) Great Britain of England, Wales & Scotland; (b) Northern Ireland; or (c) he EU. This section gives the main points but - as there are quite different rules for each - you must check with the official guidance for each market. For Great Britain, guidance is at:  www.gov.uk/guidance/placing-manufactured-goods-on-the-market-in-great-britain-from-1-january-2021

You can only place CE Marked goods on the Great Britain market while both UK & EU requirements are the same. This applies from Exit Day, from 12 months, until 1 January 2022 at the latest. The UK Government says there are no plans to diverge at this time - and your goods can carry both CE & UK markings so long as goods fully comply with both UK & EU regulations.
 

CE Marking and UKCA Mark: Great Britain


The UK Government has published proposals to replace CE marking with a new UK mark - called “UK Conformity Assessed” - for products for sale in the UK after Exit Day. The EU will stop recognising the competency of UK-based Notified Bodies to assess products for the EU market.

You must prepare for recognition of CE marking in Great Britain to end on 1 January 2022 - and affix the new UKCA mark on your goods having used a UK-recognised ‘Approved Body’. Until then, both CE Marking and the UKCA mark will be recognised in England, Wales & Scotland. This section gives the main points on this new UK mark - but more detailed guidance dated 1 September 2020 is here: www.gov.uk/guidance/using-the-ukca-mark-from-1-january-2021

The UK Government will reclassify UK Notified Bodies as UK Approved Bodies - for example, British Standards Institute and British Board of Agrément, among many others. They will be eligible to assess products against UK requirements and issue the new UKCA mark to compliant products. This new mark stems from the UK version of the Construction Products Regulation, whereas CE marking originates from the EU version of the Regulation.

Where a UK Notified Body (subsequently a UK Approved Body) had carried out tasks or issued certification in relation to the Assessment and Verification of Performance (AVCP) for goods before 1 January 2021, those tasks and/or that certification may be used to support using the UKCA mark if the goods are placed on the Great Britain market after Exit Day.

After Exit Day, UK Technical Assessment Bodies can conduct technical assessments for the UK market and goods may then display the new UKCA mark. Technical Assessment Bodies will be responsible for drawing up and adopting UK assessment documents for manufacturers placing goods on the GB market. The UK Market Conformity Assessment Bodies’ Database lists all the bodies which can provide conformity assessment for the UK market:  www.gov.uk/uk-market-conformity-assessment-bodies

Other aspects to urgently consider and act now to comply after Exit Day include:
- manufacturers will only be allowed to put CE Marking on goods for sale in the UK - without any need for reassessment or re-marking if EU requirements are met - until 1 January 2022.
- companies will have to change their packaging, advertising, declarations of performance, user guidance, etc, to display the new logo, with the extra time, effort & cost involved. This means on the goods or packaging, though in some cases, it may be in the manual or other literature.
- you or your authorised representative(s) must keep records to demonstrate that your product conforms with regulatory requirements for up to 10 years after placing on the market.
- a UK Declaration of Conformity must be completed for products bearing the UKCA mark - just as you do now for an EU Declaration of Conformity.

Trading Standards will police the market and have enforcement powers to act to remove non-compliant products as necessary. This new UKCA mark alone cannot be used for goods placed on the Northern Ireland market - nor the EU market. The above paragraphs only give the main points and we encourage you to go to the detailed guidance at:  www.gov.uk/guidance/using-the-ukca-mark-from-1-january-2021
 

Imports into Great Britain


After Exit Day, the manufacturer’s role & responsibilities will not change. But some firms who bring goods into Great Britain from the EU, EEA or Switzerland - and were previously ‘distributors’ - will become ‘importers’. This means new obligations including: requirements to check product compliance; ensuring the AVCP requirements have been done by the manufacturer; ensuring your name & address and conformity marking appears on the product; and keeping technical documentation.

Authorised Representatives: if manufacturers have issued a written mandate to an existing authorised representative based in an EU country, that representative can enjoy UK recognition until 1 January 2022. But any new representatives you appoint must be established in the UK to be recognised under UK law after this date.

Construction Products Regulation: Northern Ireland


The Construction Products Regulation has been amended to allow for the Northern Ireland Protocol. There is now a different CPR for Great Britain and for Northern Ireland. The Construction Products (Amendment etc.) (EU Exit) Reg 2020 of 26 November 2020 that gives effect to the CPR Northern Ireland is here: www.legislation.gov.uk/uksi/2020/1359/contents/made

Guidance on the Construction Products Regulation in Northern Ireland after Exit Day is here: www.gov.uk/guidance/construction-products-regulation-in-northern-ireland-from-1-january-2021
 

Placing Goods on the Market: Northern Ireland


The Northern Ireland Protocol to the Withdrawal Agreement was agreed as a way to avoid a hard border on the island of Ireland. The Protocol took effect from 1 January 2021 and - for as long as it is in force - Northern Ireland will align with all relevant EU rules on placing goods on the NI market. This ought to mean no extra processes, procedures or restrictions on the flow of goods - so called “unfettered access” - to the whole of UK market.

But this has proved to be wholly incorrect - and businesses are encountering considerable problems in shipping goods to Northern Ireland. For instance: goods imported from the EU that are unpacked & repacked in Great Britain - exported back to the EU - notably the Irish Republic but also Northern Ireland (due to the Protocol and the Trade & Cooperation Agreement) - without any significant processing or adding value having been done - means companies have to deal with customs declarations & duties, rules of origin, VAT, etc.
 
Guidance for manufactured goods you place on the Northern Ireland market is at:  https://www.gov.uk/guidance/placing-manufactured-goods-on-the-market-in-northern-ireland

Guidance on trading and moving goods in and out of Northern Ireland is at:  https://www.gov.uk/guidance/trading-and-moving-goods-in-and-out-of-northern-ireland-from-1-january-2021
 

CE Marking and UKNI Mark: Northern Ireland

For as long as the Protocol is in force, Northern Ireland will align with all relevant EU rules for placing goods on the market. You must show your goods meet those rules by using conformity markings. The UK Government has announced a new UKNI mark to accompany - but not replace CE Marking - on goods in Northern Ireland if a mandatory conformity assessment is required.

If you are using an EU conformity assessment body to place your goods on the NI market after Exit Day, they must have a CE Marking. If you are using a UK conformity assessment body, your goods must have both CE marking and the new UKNI marking. This new UKNI mark cannot appear on its own - it must always accompany CE Marking.

You have to use the UKNI marking if all of the following apply:
- you place your goods on the NI market after Exit Day with CE Marking;
- your goods require mandatory third-party conformity assessment;
- you plan to use a UK-based body to carry out conformity assessments after Exit Day

The proposed new UKNI Mark (right)

In most cases, you must apply the UKNI mark to the product itself or to the packaging. In some cases, it may be on the manual or other supporting document(s). This will vary depending on the specific regulations that apply to your goods. This new mark covers goods such as:
- construction products;
- eco-design of energy related products;
- hot-water boilers;
- personal protective equipment.

This is not an exhaustive list: please check the official guidance using the link shown below. The UKNI mark cannot appear on its own - it must always accompany CE Marking. Detailed rules on using this mark and how you display it are at:  https://www.gov.uk/guidance/using-the-ukni-marking-from-1-january-2021

Other aspects to urgently consider and act now are:
- manufacturers or their authorised representative(s) must keep records to demonstrate that goods conform with regulatory requirements for up to 10 years after placing on the market;
- a EU Declaration of Conformity must be completed for CE Marked goods as you do now;
- the UKCA mark will not be recognised on the Northern Ireland or EU markets.

Imports into Northern Ireland

After Exit Day, some firms who bring goods into Northern Ireland from outside the EEA or Northern Ireland - and were previously ‘distributors’ - will become ‘importers’. This means new obligations including: requirements to check product compliance; ensuring the AVCP requirements have been done by the manufacturer; ensuring your name & address and conformity marking appears on the product; and keeping technical documentation.

After Exit Day, authorised representatives will need to be established in either Northern Ireland, or the EEA, to act on the manufacturer’s behalf in relation to specified tasks. Manufacturers with an authorised representative based in Great Britain will need to appoint a new authorised representative.
 

Product standards in the EU 

After Exit Day, exports that currently require CE Marking will continue to require CE Marking to demonstrate compliance with EU regulations. This means:
- you self-declare the conformity of your goods against the regulations;
- any mandatory conformity assessment is done by an EU-recognised Notified Body;
- you arrange for the transfer of the certificate of conformity and associated files from a UK-based Notified Body to an EU-recognised Notified Body.

The list of EU-recognised Notified Bodies is on the NANDO-CPR database from which UK-based Notified Bodies will be removed after Exit Day:  https://ec.europa.eu/growth/tools-atabases/nando/index.cfm?fuseaction=directive.notifiedbody&dir_id=33 

Placing Goods on the Market: EU


After Friday 1 January 2021, the EU will determine arrangements that apply in the 27 EU Member States. Guidance for manufacturers placing goods on the EU market is at: www.gov.uk/guidance/placing-manufactured-goods-on-the-eu-market
Please check EU websites for official EU guidance using the links because Brussels determines its rules, regulations & procedures, not London. Some aspects to urgently consider and act now are:
- neither the UKCA nor UKNI mark will be recognised on the EU market. Products currently requiring a CE Marking will still need a CE Marking for sale in the EU from 1 January 2021.
- goods can carry both the CE and UKCA markings so long as they are fully compliant with both UK and EU regulations.
 
Guidance on CE Marking is at:  https://www.gov.uk/guidance/ce-marking

Exports to the EU


After Exit Day, the manufacturer’s role & responsibilities will remain largely unchanged. But UK firms who have an EU-based distributor will find their status has changed. They will be an ‘importer’ with new obligations - and your distributor will need to make sure that:
- your goods are labelled with their address and either your details, or your EU, EEA or Northern Ireland-based authorised representative’s details, including your company’s name and a contact address or registered trademark.
- the correct conformity assessment procedures have been carried out and that your goods have the correct conformity markings.
- you, as the manufacturer, have drawn up the correct technical documentation and complied with the labelling requirements.
- they maintain a copy of the EU Declaration of Conformity for a period of 10 years;
- your goods conform with the relevant essential requirements.

Authorised representatives and responsible persons based in Great Britain will not be recognised by the EU after Exit Day. You have to appoint an authorised representative(s) or responsible person(s) who are established in the EU, EEA or Northern Ireland to meet your obligations.

The EU will not have a period of grace because the EU is not leaving the EU. Your exports to the EU must have the name & address of the relevant EU importer and other obligations in the bullets above immediately from Exit Day. The above paragraphs only give the main points and we encourage you start with the UK guidance at: www.gov.uk/guidance/placing-manufactured-goods-on-the-eu-market-from-1-january-2021
 
BMF Comment

We hope the UK Government avoids non-alignment with EU regulations for no good reason after Exit Day. Over time, there may be benefits from non-alignment. For example: where there is public support to adopt more stringent policy - e.g. use of energy, water & natural resources, creating waste and emissions - but any decisions must stand up to proper scrutiny on merit.

The ask is for ministers to resist temptation to invent standards that are wholly different to those currently in force - and certainly neither immediately after Exit Day nor without consultation and advance notice to allow business to adjust. There will be specification, familiarisation and conformity costs you should consider urgently as described on the “Don’t Forget” page.
 

Data protection


After 1 January 2021, personal data can continue to be received from EU or EEA-based organisations into the UK for up to 6 months. In the jargon, this is called “data adequacy”. The new Trade and Cooperation Agreement contains a bridging mechanism that allows the continued free flow of personal data into the UK after Exit Day. This temporary 6-month arrangement gives the UK and EU more time to agree on what data adequacy arrangements will exist thereafter.

Personal data is any that can be used to identify a living person - including names, delivery details and IP addresses - or HR data such as payroll information.

To protect yourself, the solution is to use Standard Contractual Causes. They are model data protection clauses approved by the European Commission that enable the free flow of personal data when put in a contract. They contain contractual obligations on UK companies and their EU partners - and rights for individuals whose personal data is transferred. If you are a multi-national group of companies - and receiving data from within the group - you may not need Standard Contractual Clauses if your group already has approved binding corporate rules in place.

After Exit Day, the General Data Protection Regulation (GDPR) still applies, along with the UK Data Protection Act 2018. Guidance is at:  www.gov.uk/guidance/using-personal-data-in-your-business-or-other-organisation-after-the-transition-period

The UK Information Commissioner has provided guidance and resources to help you prepare: https://ico.org.uk/for-organisations/data-protection-at-the-end-of-the-transition-period/

There are no changes to the way you send information the UK to the EU, EEA countries, Gibraltar and other countries deemed as adequate by the European Commission.