UK government heralds 'indefinite' CE marking recognition in GB market
Published on 3rd Aug 2023
Businesses will still need to look carefully at regulations and determine if a UKCA or CE mark is more appropriate
The UK government has announced it intends to have an "indefinite extension" of CE marking recognition for businesses in the UK. The Department for Business and Trade stated on 1 August that businesses will be able to continue using the CE mark on products placed on the market in Great Britain beyond the previous 31 December 2024 deadline, with the option for the UKCA (UK Conformity Assessed) mark to also be used.
Transition period change
Following the withdrawal from the EU, the government introduced plans to adopt the UKCA mark as a means of demonstrating compliance with product standards in the UK. The UKCA mark was intended to replace the CE mark used in the EU and enable differentiation as product safety legislation diverged between the two jurisdictions.
The UKCA and CE conformity markings are simply a visible representation on a product that it has gone through an assessment process and conforms with the product compliance requirements applicable in the UK and EU markets respectively. The UKCA marking has been valid for use on the GB market since 1 January 2021.
Post-Brexit, in order to allow businesses time to adapt, the government provided a period of time to allow CE marking to continue to be recognised in the UK. Initially, the transition period was intended to last until 1 January 2022, before eventually being extended until 31 December 2024. A number of trade bodies and industry groups have argued for the continued recognition of CE marked products.
'Indefinite extension'
The government's decision to recognise CE marking indefinitely means businesses no longer need to switch fully over to the UKCA marking for 18 categories of products.
The emphasis in the announcement on certainty, cutting red tape and reducing burdens would suggest that it does not intend to bring in any further deadline to adopt the UKCA marking and abandon the CE mark.
Businesses have already incurred significant costs in preparing for the expected mandatory adoption of UKCA marking to ensure that they could continue to sell their goods. Notified bodies have also made changes to their businesses to meet the new UK requirements. It is unlikely that it will be possible to recover these costs.
Northern Ireland status
As a result of the Northern Ireland Protocol, post-Brexit Northern Ireland remained aligned to the EU's product regulatory framework. This meant that the CE mark would continue to be used (plus the UKNI mark in certain situations). The implementation of the Windsor Framework, which amends the Northern Ireland Protocol, will lead to further changes in the coming months. However, the framework makes no specific mention of CE or UKNI marking, so it remains to be seen whether the Norther Ireland-specific marking will be dropped in its entirety.
Business and consumer confusion?
Businesses have reportedly welcomed the continuation of the status quo. However, the impact of the decision actually creates more confusion for those that buy and sell products on the UK and EU markets. The CE mark means that the product complies with European Union law, so does this mean that products sold on the UK market actually have to comply with EU legislation? That would be a very contrived method for the government to ensure parity of UK and EU goods and would not allow for any divergence of regulation in the UK.
Or is the government suggesting that the CE mark means compliance with UK laws when the product is sold in the UK and compliance with EU laws when sold in the EU? This would have the potential to be very confusing. Would a product need two declarations of conformity? How would a reseller or end-user know if the product met UK or EU CE marking standards?
This confusion is only going to increase as the two legislative regimes diverge or, worse, conflict. For example, the EU's new Machinery Regulation 2023/1230 makes significant changes to the previous Machinery Directive, which was implemented into UK law as the Supply of Machinery (Safety) Regulations 2008. Does a CE mark in the UK now represent compliance with the new EU Machinery Regulation or the UK Supply of Machinery Regulations? If it does not meet the EU Machinery Regulations can it really be CE marked?
Sector-specific product exclusions
A number of sector-specific products have been excluded from the Department for Business and Trade's announcement, such as medical devices and construction products. The relevant departments responsible for the regulation of the excluded categories of products will be adopting their own approach to UKCA and, potentially, CE marking with these inconsistent approaches potentially leading to even greater confusion.
The Medicines and Healthcare Regulatory Agency (MHRA) has released a statement on CE marking recognition confirming that this announcement will not apply to medical devices. Instead, there are separate deadlines for CE-marked medical devices to be placed on the Great Britain market.
Osborne Clarke comment
The government needs to provide clarity and guidance on what the CE mark actually means when it is placed on products sold in the UK. However, this is not a return to the status quo and businesses will need to look carefully at the regulations that apply to their products and determine whether a UKCA or CE mark is more appropriate. Unfortunately, this is not going to tackle red tape, cut burdens for business or create certainty – in fact, quite the opposite.
Edward Aves, Trainee Solicitor at Osborne Clarke, contributed to this Insight.
If you have any questions on the forthcoming changes, please contact one of our experts below.
