CE, Brexit and Authorised Representatives

We’re just pass­ing the T-1 year mark on the UK’s jour­ney towards leav­ing the EU. Some of my read­ers are “Leavers”, while oth­ers are “Remain­ers”, but for every­one liv­ing in the UK or doing busi­ness with the UK, there are many ques­tions that remain unclear. To be fair, some of the lack of clar­i­ty is due to the nego­ti­a­tion process that Prime Min­is­ter May’s gov­ern­ment is engaged in, and some of it is the result of the com­plex­i­ty in the EU-UK rela­tion­ship. I hope to add some clar­i­ty to this sit­u­a­tion, at least as far as the impact on third-coun­try man­u­fac­tur­ers and CE Mark­ing is con­cerned.

What is an Authorised Representative?

Whether or not a man­u­fac­tur­er is based in the EU, they may use an Autho­rised Rep­re­sen­ta­tive to car­ry out cer­tain tasks, such as [1, 3.2]:

• keep­ing the EU dec­la­ra­tion of con­for­mi­ty and the tech­ni­cal doc­u­men­ta­tion at the dis­pos­al of nation­al sur­veil­lance author­i­ties and coop­er­ate with them at their request,
• pro­vid­ing that Nation­al Author­i­ties with all the infor­ma­tion and doc­u­men­ta­tion nec­es­sary to demon­strate the con­for­mi­ty of a prod­uct,
• tak­ing actions to elim­i­nate the risks posed by prod­ucts cov­ered by their man­date,
• affix the CE mark­ing and noti­fied body’s num­ber to the prod­uct,
• draw up and sign the EU dec­la­ra­tion of con­for­mi­ty.

Man­u­fac­tur­ers locat­ed out­side the EU may be oblig­ed to have an Autho­rised Rep­re­sen­ta­tive by the Direc­tives applic­a­ble to their prod­ucts. Com­mer­cial rep­re­sen­ta­tives such as autho­rised dis­trib­u­tors or agents, should not be con­fused with the “autho­rised rep­re­sen­ta­tive” in the mean­ing of Union har­mon­i­sa­tion leg­is­la­tion.

Hav­ing an Autho­rised Rep­re­sen­ta­tive entails spe­cif­ic con­trac­tu­al oblig­a­tions. The EU Blue Guide [1] can help you to under­stand those oblig­a­tions and the pro­vi­sions that are rel­e­vant to the agree­ment. Since I am not a lawyer, I can’t pro­vide you with spe­cif­ic legal advice on this top­ic but an EU con­tracts lawyer can help you with the nec­es­sary arrange­ments. Many of the orga­ni­za­tions that have been pro­vid­ing these ser­vices for many years have ready-made con­tracts that ful­fil the require­ments and can get you set-up quick­ly.

How will Brexit affect your CE Mark?

Since the UK joined the Euro­pean Eco­nom­ic Com­mu­ni­ty (EEC) on 1-Jan-1973 [2], [3], [4], the rela­tion­ship has become a com­plex one, and dis­en­tan­gling this rela­tion­ship is going to take some time.

On the sur­face, third-coun­try man­u­fac­tur­ers are not required to have an EU-based Autho­rised Rep­re­sen­ta­tive [1], how­ev­er, some CE Mark­ing Direc­tives include explic­it require­ments regard­ing Autho­rised Rep­re­sen­ta­tives, while oth­ers like the Machin­ery Direc­tive, have implic­it require­ments that result in third coun­try man­u­fac­tur­ers need to have an Autho­rised Rep­re­sen­ta­tive based in the EU.

If you have a con­tract with an Autho­rised Rep­re­sen­ta­tive cur­rent­ly based in the UK, your CE Mark will no longer be valid on 1-Apr-2019 unless you make oth­er arrange­ments [5].

How will Brexit affect my Authorised Representative?

Since the UK and North­ern Ire­land will be leav­ing the EU at the end of March, 2019, any orga­ni­za­tion that offers Autho­rised Rep­re­sen­ta­tive ser­vices will no longer be able to meet the require­ment for being based in the EU. Where an indi­vid­ual is act­ing as an Autho­rised Rep­re­sen­ta­tive, they have the option to move from the UK to any oth­er EU Mem­ber State before the UK offi­cial­ly exits the union. Where an orga­ni­za­tion is pro­vid­ing an Autho­rised Rep­re­sen­ta­tive ser­vice, they have the option to move their cor­po­rate head­quar­ters to any oth­er EU Mem­ber mem­ber state. Once they can show that they are based in an EU coun­try, then they can legit­i­mate­ly offer Autho­rised Rep­re­sen­ta­tive ser­vices again.

Need help with CE Mark­ing? I can help! Con­tact me at +1 (519) 650‑4753 or by email.

References

[1]     Euro­pean Com­mis­sion, “Com­mis­sion Notice — The ‘Blue Guide’ on the imple­men­ta­tion of EU prod­ucts rules 2016″, Pub­li­ca­tions Office of the Euro­pean Union, Lux­em­bourg, 2018.

[2]     “When did Britain decide to join the Euro­pean Union? – UK in a chang­ing Europe”, Ukandeu.ac.uk, 2018. [Online]. Avail­able: http://ukandeu.ac.uk/fact-figures/when-did-britain-decide-to-join-the-european-union/. [Accessed: 30- Mar- 2018].

[3]     “BBC News — A time­line of the EU”, News.bbc.co.uk, 2018. [Online]. Avail­able: http://news.bbc.co.uk/2/hi/europe/3583801.stm. [Accessed: 30- Mar- 2018].

[4]     Euro­pean Com­mis­sion, “Com­mis­sion Notice — The ‘Blue Guide’ on the imple­men­ta­tion of EU prod­ucts rules 2016″, Pub­li­ca­tions Office of the Euro­pean Union, Lux­em­bourg, 2016.

[5]     DIRECTORATE-GENERAL FOR INTERNAL MARKET, INDUSTRY, ENTREPRENEURSHIP AND SMEs, “NOTICE TO STAKEHOLDERS—WITHDRAWAL OF THE UNITED KINGDOM AND EU RULES IN THE FIELD OF INDUSTRIAL PRODUCTS”, Euro­pean Com­mis­sion, Brus­sels, 2018.