Council of State rules again on the invalidity of quality certificates after Brexit

With judgment No. 9629 of 9 November 2023, the Council of State – the Italian court of appeal for trials concerning administrative law cases – has returned to the issue of the validity of quality certificates issued by certification bodies located in the United Kingdom after Brexit.

The Council of State, which overturned the judgment of the first instance, stated that "quality certificates issued by foreign bodies accredited by the sole national accreditation body of another European State, signatory to the EA MLA Agreement, such as the British body UKAS, are equivalent to quality certificates issued by bodies accredited by the national bodies of the Member States”. The Council of State therefore concluded that the contracting authority was entitled to consider as valid the certificate of conformity of the environmental management system issued by a body accredited by its own national body, signatory to the EA Multilateral Recognition Agreement (EA MLA).

The opposite conclusion - followed by the Court of first instance and by other precedents of the same Council of State - would ultimately be contrary to Article 87 of the Italian Public Procurement Code, with EC Regulation No. 765/2008 and with the principles of competition, non-discrimination and mutual recognition.

The judgment of the Council of State thus overturned the argument shared by the Court of first instance according to which the certification held by the successful tenderer did not satisfy the requirement for participation in the tender procedure because it was issued by Advanced Certification Ltd, a certification body accredited by the United Kingdom Accreditation Service (UKAS), "which, as the national accreditation body of the United Kingdom, i.e. of a "third" Country that is no longer part of the European Union, could not be considered an accreditation body within the meaning and for the purposes of EC Regulation no. 765/2008, "as required by the European Union and national legislation (as well as by the tender rules)".

The present case is characterised by the fact that the tender rules explicitly allowed for the possibility of certification by a single national accreditation body that is signatory to the EA/MLA Agreement, and the UKAS body is a signatory to the EA/MLA Agreement in the field of certification of environmental management systems.

Through the EA/MLA, the signatories recognise and accept the equivalence of the systems operated by the accreditation bodies and the reliability of the conformity assessment results provided by the certification bodies (CABs) accredited by the signatories, following a successful peer review.

Therefore, since the UKAS accreditation body has successfully passed the peer evaluation and has formalised the positive outcome of this evaluation by signing the so-called EA/MLA agreements, there is no reason to withdraw the validity of the certificate issued by Advanced Limited Ltd, a conformity assessment body accredited by UKAS.

The decision of the Council of State therefore clarifies that the withdrawal of the United Kingdom from the European Union does not affect the activities of the bodies and laboratories accredited by UKAS.

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