The UK government has recently published a further series of technical notices to guide businesses and citizens as to what they would need to do if the UK leaves the EU without a withdrawal agreement in place – the 'no deal' scenario. The technical notices (published 13 September 2018) are available here. Against this backdrop, the UK government has stressed that significant progress has been made on negotiations between the EU and UK and it remains confident of achieving a positive deal. The government noted that it "continues to believe that an orderly, negotiated exit is the best outcome for all parties" and emphasised that despite the publication of these notices, a no deal scenario "remains unlikely" as both the UK and the EU have an interest in securing a negotiated withdrawal.

The technical notices set out some details of what producers will have to do to place goods on the UK market from 29 March 2019 if no deal is reached. If the UK and the EU fail to reach an agreement, it's clear that producers selling goods both in the EU and the UK would have to comply with both EU law and UK legislation, in whatever form that takes post-Brexit.

Planning for all possible outcomes

The government emphasises that the technical notices only form a part of its ongoing programme to plan for all eventualities. Further, the government notes that preparations for a no deal scenario are a contingency measure - its aim is to set out its approach to a no deal outcome "in order to minimise disruption and ensure a smooth and orderly exit in all scenarios". The technical notices are aimed at reassuring businesses and citizens that the government is taking preparations for all possible outcomes seriously to assist businesses and citizens in negotiating the post-Brexit landscape.

How would the position change for products sold in the UK and which are currently subject to common EU rules (such as electrical and electronic products or toys)?

  • New UK "approved bodies" would assess those products against UK essential requirements. Initially, the UK essential requirements would mirror EU essential requirements as UK law would duplicate the current EU legislation.
  • A new UK conformity marking would replace the CE mark for these products. However, for a limited time (not specified in the technical notice) manufacturers could continue to use the CE marking following assessment by an EU recognised body rather than the UK marking to denote conformity. The UK government intends to publish further detail on the UK conformity mark later this year, stating that it will allow sufficient time for businesses to prepare for the change.

How would the position change for products sold in the EU which are subject to common EU rules?

  • The EU would no longer recognise the results of conformity assessment from UK notified bodies. Where manufacturers currently use UK notified bodies to undertake their conformity assessment for goods to be placed on the EU market, they would need to have the goods retested and re-marked by an EU recognised body in order to continue selling goods in the EU or arrange for their files to be transferred to an EU recognised body to continue to be valid.
  • Type-approvals for vehicles and vehicle components issued in the UK would not be recognised by the EU and EC type-approvals issued outside of the UK would not necessarily be automatically accepted on the UK market.

How would the position change for products which are not subject to EU harmonised standards (such as textiles)?

Products subject to national regulations rather than common EU harmonised standards can currently be sold across the EU under the mutual recognition principle. This stops EU member states prohibiting the sale of products which have already been lawfully sold in another EU country. In a no deal scenario, post-Brexit the mutual recognition principle would no longer apply to the UK. Therefore, UK businesses exporting such goods to the EU market would have to meet the national requirements of the first EU country to which they export. Non-UK businesses who wish to sell products on the UK market would have to ensure they meet UK national requirements, even if the products were previously marketed legally in another EU country or in the UK.

Comment

While the UK government remains optimistic that a no deal Brexit will be avoided, it is clear from the technical notices published that a no deal scenario could have a significant impact on companies who sell goods in the UK and Europe. For example, the introduction of a new UK conformity mark would have considerable implications for product labelling. Regarding the ongoing recognition of the CE mark, the government has committed to ensuring that businesses are provided with adequate notice of any change to the arrangements but ongoing uncertainty would remain.

The outcome of the negotiations between the UK and the EU is still unknown but companies should be considering what reasonable steps they can take to ensure they're prepared for all eventualities.