Most Favoured Nation: Now You CE It, Now You Don't

CE marks and geopolitical tension

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This week one of my most frequent predictions came to pass. The UK announced it would indefinitely allow products stamped with an EU CE mark to be sold in Great Britain (it was already mandatory in Northern Ireland). This means producers will no longer have an obligation to use the alternative, post-Brexit, UKCA mark.

Of course, as with many UK government announcements, there are some caveats. It turns out that this indefinite recognition will only apply in the first instance to products within the remit of the Department for Business and Trade (DBT) and not, for example, construction or medical devices which fall outside of DBT’s remit and still have their own timelines.

As a recap, the UKCA mark was introduced after Brexit to replace the EU CE mark. These marks are “proof” that the product conforms with whatever the underlying product standard is. Companies were then given numerous compliance grace periods during which CE marks would still be recognised, and these grace periods were repeatedly extended at the last minute.

These standards can be a function of regulation but are often the result of decisions taken by international or regional standards bodies such as the International Standards Organisation (ISO) or, in the case of CE, the European Standards Organisations, CEN and CENELEC. Here it is important to note that the UK national standards body — BSI — managed to remain a member of the European Standards Organisation after Brexit, so even though the UK introduced the new UKCA mark, the underlying standard for most (all?) UK products remains exactly the same as the European standard.

In terms of applying a CE/UKCA mark, most products are self-certified: the company making them (or importing them if they are produced abroad) will hold a declaration of conformity and be legally responsible for placing them on the market, and liable if something is amiss. Some products — such as medical devices — require third-party certification and someone independent to sign off that they are compliant with the required standard.

And the basic issue with UKCA marking for lots of companies is that it is a waste of money. The underlying standard is the same as CE marks, they are using CE marks anyway because they are needed in the EU … so what’s the point of UKCA? So understandably, most of the industry has been shouting for years that the UK should just indefinitely recognise CE marks and stop pretending there would be a point it wouldn’t … which the UK government has now done (at least in most instances).

This is definitely an improvement over the previous approach of pretending there was a deadline. However, there are a few points I would make:

• The UKCA mark still exists. Companies will still be able to use the UKCA mark if they want. They will just not have an obligation to use it. Now, I know some of you will say that no one will ever use it, why wouldn’t they just use CE, etc. But some will, particularly when there is a requirement for third-party certification. This is because UK-based certification bodies cannot certify against European standards for the purpose of a CE mark. So if you want to get a CE mark, you would need to send your product off to a conformity assessment body in France or the like. Which you will probably do if you are a manufacturer with customers all over Europe, but not if, for example, you make pint glasses.

• What happens when/if there is divergence? As mentioned above, one of the reasons extending CE mark recognition makes sense is that the underlying EU and UK standards remain the same. But this might not always be the case. So what happens if an EU and a UK standard do end up being different, will the CE recognition of that product still continue, or would a UKCA mark then be required?

• Not everyone is happy. Quite a few companies spent lots of money getting their products UKCA certified, and in some instances — for example, where the mark is engraved into the metal body of a product — had to redesign products to ensure compliance. The indefinite extension of CE recognition means these companies essentially wasted this money, and their competitors, who were less diligent/more convinced the UK would eventually fold, did not.

• Sign of a bigger shift. While in the EU, the UK was essentially a single standard market. If you wanted to place a product on the UK (and EU) market it needed to meet European Standards and be CE marked. [note: this is an oversimplification, and there are caveats to this generalisation.] However, with this decision, the UK has effectively embraced a different model in which two standards - European and UK — could, hypothetically, coexist in the event the underlying CE and UKCA standards diverge. This raises the question of whether this model will be expanded further — could standards produced in other jurisdictions receive similar treatment? There is already discussion of fast-track recognition of, for example, medical devices recognised elsewhere, so this could be the thin end of the wedge in a wider change to *how* the UK regulates.

• What about the other sectors? What’s going to happen in the sectors not covered by the extension? Medical devices, construction, etc?