The new UKCA mark to mirror the CE marking in a no-deal Brexit

Currently, the CE mark is required to be affixed on many products (including medical devices, toys, machinery and electrical equipment) placed on the market in the EU to indicate compliance with the relevant EU legislation on product safety. In many cases, products can be self-declared as compliant by the manufacturer, who can then affix the CE marking. For some products however, the product needs to be assessed by a third-party conformity assessment body (a so-called 'notified body') to ensure that the EU safety requirements are met.

In preparation for a 'no deal' Brexit, the UK government has announced details of the UK product safety regime which will come into force.

Placing products on the UK market after a 'no deal' Brexit

Most, but not all, products to which a CE mark must currently be applied will fall within scope of the new UK product marking regime following a no deal Brexit. The new UK mark is the 'UKCA' (UK Conformity Assessed) mark. The rules around using the new UKCA mark will mirror those which currently apply for the application of the CE mark.

In most cases, it will remain possible to use the CE mark for products being placed on the UK market after 29 March 2019. However, this is intended to be for a time-limited period only. The UK Government has said it will consult with industry and provide notice before ending this time-limited period. Thus for the time being at least, and with one exception described below, CE marked products can continue to be placed on the market in the UK following a no deal Brexit without any further assessment or marking required. The exception is where the products in question require third party assessment of conformity, and that has been carried out by a UK conformity assessment body. In such circumstances, it will be necessary to apply the new UKCA mark as from 29 March 2019. This will not be the case however if the certificate of conformity has been transferred to an EU-recognised body before then (in which case the CE mark could still be applied, making the products acceptable for the UK market).

For products which currently only require self-declaration of conformity for the CE mark to be applied, it is possible to apply the new UKCA mark based on that self-declaration thereby allowing those products to be placed on the market in the UK.

In summary, following a no deal Brexit, the manufacturer/importer has a choice: continue to rely (for the time being at least) on the CE mark to place the products on the market in the UK, or apply the new UKCA mark.

Placing products on the EU market after a 'no deal' Brexit

Products placed on the EU market after a 'no deal' Brexit will still need to be marked with the CE mark (the new UKCA mark will not be recognised in the EU).

For products which only require self-declaration in order to affix the CE mark, such products can continue to be exported to and placed on the market in the EU under that CE mark.

However, UK conformity assessment bodies will no longer be recognised in the EU. This means that where the CE mark has been applied to products as a result of a conformity assessment carried out by a UK conformity assessment body, these products will need to be re-assessed and marked by an EU-recognised conformity assessment body in order to continue to be placed on the market in the EU. Manufacturers/importers may therefore wish to arrange for assessments to be transferred to an EU-recognised body before the UK leaves the EU.

Conclusions

To the extent possible, the UK Government has sought to minimise the disruption caused by a 'no deal' Brexit by continuing to allow CE-marked products to be placed on the market in the UK, albeit for an unspecified time-limited period.

The most serious disruption will be caused to manufacturers/importers who have until now used UK conformity assessment bodies (or indeed UK-based authorized representatives). Because such bodies will no longer be recognised by the EU, conformity assessments carried out by them can no longer support the affixing of a CE mark, which remains a pre-requisite for placing products on the market in the EU. Affected manufacturers/importers will therefore need to make urgent plans to switch to EU-recognised conformity assessment bodies if they wish to continue to market in the EU after a no deal Brexit.