Construction products post-Brexit – business in the UK to remain much as usual in the short-term
Good news for businesses and customers as proposed Brexit legislation provides for evolution, not revolution, of the current construction products performance regime.
Construction products across the EU are subject to the Construction Products Regulation (EU) No 305/2011 (the 2011 Regulation), which is currently directly applicable into English law. It provides for:
- A mandatory system of accountability for construction products placed on the single European market by suppliers (manufacturers, importers and distributors).
- The declaration of product performance by suppliers, by reference to harmonised standards (e.g. regarding fire safety and energy economy, and the use of the European conformity ‘CE’ marking (CE marking) to confirm the product complies with the essential requirements of the relevant European health, safety and environmental protection legislation). Some products require a conformity assessment by a third party, but for others, manufacturers can self-declare the product’s performance.
Trading Standards is the UK’s enforcement body, with wide powers to seize products and records, inspect and test products, and the ability to prosecute those supplying products without the required information or compliant CE marking.
The draft Construction Products (Amendment etc.) (EU Exit) Regulations 2019 (the 2019 Regulations) were laid before Parliament on 18 December 2018, aimed at ensuring a functioning regime for testing and declaring the performance of construction products when the UK leaves the EU, in the event of a no deal Brexit (no deal).
The 2019 Regulations (if they are passed into law) will come into effect on exit day, scheduled for 29 March 2019.
The 2019 Regulations largely maintain existing requirements. Construction products already on the market meeting the relevant harmonised European standard(s) and bearing the CE marking can continue to be sold in the UK, without the need for retesting or additional marking post-Brexit.
However, the 2019 Regulations also introduce some noteworthy changes:
- Current EU harmonised standards will become UK “designated standards” and will remain identical immediately post-Brexit, but the Secretary of State will have the power to determine new UK standards.
- Power for the Secretary of State to update the UK construction products regime to respond to technical developments and emerging issues, a role undertaken by the European Commission for the EU.
- The role of “notified bodies” – who are the only third parties authorised to undertake conformity assessments under the 2011 Regulation - will be undertaken by “approved bodies” who must be based in the UK. Existing notified bodies based in the UK will automatically be awarded “approved body” status.
- Where a UK body has undertaken the third party conformity assessment process, as required by the UK “designated standard”, the manufacturer must add a new UK mark (the new UK mark will be established under separate legislation).
- Where a manufacturer can self-declare that a product meets harmonised standards (i.e. without third party conformity assessment) it will be able to use the UK product marking, the CE marking, or both. This will be the case for a limited time only, but the applicable time period has not yet been determined.
- For products not fully covered by a designated standard, there will be an optional route available to enable products to be UK marked.
Trading Standards will remain responsible for enforcing the construction products regime.
The government published guidance - Construction Products Regulation if there is no Brexit deal (the Guidance) on 24 January 2019. It confirms that, in the absence of access to EU databases and shared information, UK replacements (including a new product safety market surveillance database) are being developed. Further details are awaited.
The Guidance also provides advice regarding the import and export of construction products:
1 Post-Brexit, UK distributors buying products from the EU for onward supply will in most cases be classed as importers. They will thus assume additional obligations, including ensuring that the products they place on the market:
- Show the importer’s contact details
- Have all the required technical documentation from the manufacturer
- Retain their performance as declared.
2 Exporting construction products to the single European market will become more difficult. UK notified bodies will no longer qualify as notified bodies under EU law. UK manufacturers and suppliers who currently export products relying on assessments by UK notified bodies are advised to consider:
- Arranging further assessment by EU notified bodies to demonstrate compliance post-Brexit; alternatively,
- Transferring the product’s technical file and certification to an EU notified body, with the agreement of the UK notified body.
While the simultaneous use of UK product and CE markings could give rise to confusion, by requiring conformity with existing EU standards, the 2019 Regulations take a light touch approach to amending the current performance regime, in the event of no deal. This should allow businesses to adapt to a new but not radically different system post-Brexit.
However, the longer-term impact of the 2019 Regulations remains to be seen:
- Products currently bearing the CE marking may in due course be subject to retesting and/or additional marking in order to access the UK market.
- In addition, there is scope for UK and EU standards to diverge in the future, with new technological developments, risks and non-compliant products being dealt with in different ways and at different times.
Deal or no deal, those who import and/or export construction products are highly likely to face additional red tape and upheaval due to Brexit.
Consequently, manufacturers and suppliers of construction products, employers, contractors and designers are all advised to plan ahead, and keep a watchful eye on future developments.