British product compliance and CE marking regulations will be unfold after March 2019

It is not a secret the United Kingdom has voted to leave the European Union in March 2019.  Brexit will have to decide on how the UK will manage “post-Brexit” product safety. UK safety legislation has gradually developed during the UK’s membership of the EU. It is implemented in UK law as Statutory Instruments (SIs). Part of the conditions of membership of the EU is that Directives are implemented into national law within the timeframe specified in the Directive. EU Regulations have a direct effect on a law in EU member states. The EU Directives and Regulations concerning product safety aim to facilitate free trade within and with the EU member states by ensuring that the same product safety requirements apply throughout the EU.

CE marking as a compliance system began in 1993 as a means of demonstrating that a product complies with the essential requirements of the EU safety legislation via the relevant product standards. Without a CE mark, no product can be legally imported into or sold within Europe. As a result, for more than 30 years the UK has been part of a system seen as being synonymous with the European Union or European Community.

The main concern is what happens to the UK safety legislation after Brexit and how burdens on manufacturers, exporters, and importers can be minimized. The possible scenarios are the following:    

1. Remain in the EU Customs Union: EU Free Trade Directives and Regulations would continue to apply. The existing arrangements could remain in place with little modification except for a change in the Statutory Instruments.
2. Full Mutual Recognition: Outside the customs union, for minimal disruption and impact on consumers, manufacturers, importers, and exporters, there could be some kind of mutual recognition agreement (MRA) between the EU and UK for CE marking product safety Directives and Regulations, standards which would leave the current situation essentially unchanged from present. The UK would continue to recognize a CE marking and the CE marking process as a means to demonstrate that a product is safe.
3. UK unilaterally continues to use CE Directives: The UK could unilaterally continue to accept EU CE marking and the process and requirements set out in EU Directives and Regulations as an indicator of safe products. The UK would accept certificates from EU Notified Organizations (NBs), but there would be no reciprocal acceptance. This may not be possible outside the customs union and it has the same political problem of putting UK product safety requirements under EU control, but with even less possibility of influence. It does have the advantage of providing continuity for manufacturers and users and does not require complex negotiation with the EU. It would only be useful if UK regulations continued to be updated to mirror EU regulations as they develop.
4. Retain existing Statutory Instruments but stripped of EU features: The default position under the Great Repeal Bill appears to be that existing regulations would be adapted to remove all references to the EU. The articles of the current CE marking SIs are based on the assumption that implementing counties are within the EU, so they would require substantial modification to be implemented into UK law and would need to be recast as safety regulations, possibly under the Consumer Protection Act or Health and Safety at Work Act, depending on their product sector. The regulations would become internal to UK, an EU CE marking would no longer have any legal validity in the UK, and UK Notified Organizations could no longer perform conformity assessment for CE marking and would cease to exist. Manufacturers would need to approach EU-based Notified Bodies for conformity assessment for sales into EU countries.
5. Complete deregulation: An alternative and opposite position to the previous scenario would be a complete deregulation of UK safety regulations. The UK market would become open to equipment that does not meet any particular standards of safety or performance. This approach involves minimal negotiating effort for the UK government and would be in keeping with their preference for the reduction in regulation. It would also be the effect of a ‘cliff edge’ situation where no alternatives to EU-based regulations are put into effect in time.

Contingent upon the final arrangements, UK industries may be in the same situation as those outside of the EU. Brexit effects on industries would be:

• The need to become familiar with UK safety regime which replaces CE marking
• The necessity to follow on the developments in EU standards and regulations as well as UK regulations
• Various product features and documentation for EU and UK market
• The need to quote an EU address on CE Declarations of conformity

In order to build a workable post-Brexit system, the government requires substantial resources to review and update existing legislation.

What do you think should happen? What is your opinion on the matter?