The Construction Products Regulation (Regulation (EU) No 305/2011) (the “CPR”) is a piece of EU legislation that sets EU-wide standards for products used in construction projects. Such items are marked with a CE mark to indicate compliance with the applicable standards for each product. When the UK leaves the EU, the European Union (Withdrawal) Act 2019 (“EUWA”) will convert the CPR into UK law, so as not to leave a gap in the statute book.
In December (2018), the UK Government published a draft order under the EUWA that will amend the CPR, to take effect in the event of a no deal Brexit (and if there is a deal with a transition period the amendments may take effect at the end of the transition instead). The draft order also amends the (UK) Construction Product Regulations 2013, which provide for the enforcement of the CPR’s requirements by trading standards authorities across the UK.
The amendments are intended to adapt the current regime so it works properly once the UK is no longer part of the EU, but without amending the CPR or the 2013 Regulations any more than necessary. Accordingly, the standards applying in the UK will remain closely aligned with EU standards, and at least initially will be exactly the same. The immediate key differences will be in how new products demonstrate conformity with the relevant standards.
Under the amended regime, the EU’s existing “harmonised standards” will become UK “designated standards”. Construction products already placed on the UK market pre-Brexit will therefore remain compliant with the applicable UK standards, and so will still be able to circulate and be used.
New UK standards will then be designated by the Secretary of State, either by mandating a standardisation body to develop new standards or by adopting a standard already approved by the EU. It is therefore possible that UK and EU standards will diverge over time, though there is currently no policy intention to do so and the regime will allow the UK Government to maintain consistency if so desired.
The role of “notified bodies”, which are currently authorised to assess products’ conformity with the CPR, will be taken over in the UK by “approved bodies”. Notified bodies based in the UK will automatically become approved bodies, and new approved bodies can be authorised post-Brexit.
New products assessed by a UK approved body will have to be marked with a UK mark to indicate compliance with UK designated standards, in the same way that products currently have to have a CE mark.
EU products with a CE mark will still be able to be placed on the UK market without the need for further testing or additional UK marking. This approach is designed to minimise any disruption to the availability of goods from the EU. The policy intention is that this option will only be available for a time limited period, however, albeit the duration has not yet been decided. It is therefore possible that all products used in the UK will eventually have to have a UK mark, though the Government has said that businesses will be given sufficient notice in advance of the time-limited period ending.
Where manufacturers can self-declare conformity with a standard they will, during the time limited period, be free to choose to use the existing CE mark, the new UK mark or both.
While EU and UK standards may remain aligned for some time, and there will be at least an initial period when CE marking will be sufficient for products to be sold and used in the UK, both manufacturers and users of construction products should ensure they understand the changes being made to the rules that apply in the UK.