Goods standards and regulation
The general principle is that once goods have been lawfully put on the market in an EU state, they can circulate freely. In many areas, there are harmonised EU standards for goods. See the separate sections on the modern EU approach to harmonisation and certification of standards.
Outside of specific harmonisation, the general principles in the EU Treaties create a strong presumption that national standards where they are still applicable, are sufficient. The principal exceptions to mutual recognition are narrowly defined and may be applied by EU states only by reason of public safety public policy or public morality.
2008 legislation introduced further limitations on an EU’s states right to prevent the free circulation of non-harmonised goods. Broadly speaking, it reinforces the presumption that the standards in other EU states are sufficient.
After Brexit, businesses exporting non-harmonised goods from Ireland to the UK and UK to Ireland will need to consider the respective national standards in the other jurisdiction. In the case of Ireland, it will comprise the EU standards where applicable, national standards where applicable and general EU product safety requirements at common law. The equivalent position will initially apply in the United Kingdom, but product standards and product safety requirements may later diverge.
UK businesses exporting non-harmonised goods to the EU may need to consider national requirements of the first EU state to whom they export. There will no longer be the above presumption of compliance for UK goods.
Irish and other non-UK businesses exporting non-harmonised goods to the UK may need to consider compliance with UK standards unless new UK legislation creates a presumption in favour of the standard applied in Ireland
UK Specific Standards
There are certain specific UK rules in relation to product standards which were made under the older domestic legislation. It may be necessary for exporters from Ireland and other EU countries to comply unless relieving legislation is enacted by the UK. This includes in particular legislation in relation to the following
- standards for bicycles
- certain aspects of children’s clothing
- building materials standards
- miscellaneous regulations on the safety of containers
- regulation of pyrotechnics and fireworks
- certain food safety requirements including Scotch whiskey Salmon and freshwater fish
- certain furniture and furnishings from fire safety perspective
- oil heaters
- pencils and graphic instruments
- certain gas and electrical equipment
- plugs and sockets
- certain heating appliances
- child use equipment
- certain aspects of clothing
- certain measuring equipment
- potentially inflammable clothing
- intoxicating liquor
- weighing machines weights and standards
- obscene material
- certain medicines and pharmaceuticals
- certain vehicles
- certain motorcycles
In some cases, there is specific Irish non-EU or pre-EU legislation, that is very similar to the UK legislation in respect of the same goods.
EU Harmonising Legislation
Many classes of goods are subject to harmonised standards at EU level. The modern approach of EU harmonisation is to set out the essential safety requirements for products. The legislation for the goods concerned, usually allows manufacturers, producers and importers to demonstrate compliance with the essential requirements by following the harmonised standards. In some sectors such as construction, the harmonised standards are mandatory.
The relevant legislation sets out how conformity with the standards is verified in respect of the goods concerned. This may be
- by way of self-declaration by the manufacturer that they have taken the appropriate steps to effect compliance
- by the assessment of the final product or a sample of the product by an accreditation body
- by accreditation under EU law assessment of the product’s design or prototype by a notified body followed by testing of samples and quality assurance procedures
For many products, the manufacturer must affix an approved conformity marking, usually the “CE” marking to the goods concerned by way of declaration of compliance. Where the EU rules require third-party testing, the body’s identification number as listed in the EU’s new approach notified and designated organisations index must be attached to the product.
There are EU directives and regulations covering a wide range of goods and products including
- construction products
- civil explosives
- weighing and measuring instruments
- radio equipment
- low-voltage equipment
- personal protective equipment
- machinery vehicles.
Effect of Brexit
In the case of a no deal Brexit, goods already on the market in either of Ireland or the United Kingdom should be able to circulate freely. However after Brexit, the conformity assessment by the UK notified bodies will no longer be recognised in the EU and it is likely that the same position will apply in respect of EU origin goods circulating in the UK, in the absence of an agreement or provision otherwise.
The UK is likely to accredit its existing approved bodies for UK trade. Unless recognised by the EU goods exported from the UK to the EU may require to be accredited where applicable by an EU recognised body.
Equally, goods exported from Ireland to the UK may require to be accredited by a UK recognised body. The may be a new UK conformity marking. The position is likely to apply reciprocally, so that the UK may refuse to recognise EU standards and certifications unless the EU recognises its standards,
Existing harmonised standards used to demonstrate conformity with EU essential requirements in the UK will become the U.K.’s designated standards, used to demonstrate conformity with UK essential requirements at the point of Brexit. They will be identical. However the issue of recognition by the UK and EU of the others harmonisation bodies will be complicated by the potential for later divergence, in particular, to facilitate third-country trade agreements.
After Brexit, products meeting EU requirements may continue to be placed on the UK market without re-marking for at least a limited period. It is contemplated that this period will be specified and that notice will be given to businesses sufficiently in advance of its ending.
Products that meet UK requirements with UK conformity marks will be able to be marketed in the UK provided the product has been tested by a UK recognised conformity assessment body, where required.
In the case of UK producers placing goods on the EU market, products may need to be retested by an EU recognised conformity assessment body, recognised in the EU database. This may involve manufacturers in arranging for the transfer of files and information to in EU recognised body to allow for certificates of conformity issued by the UK body to be validated and recognised in the EU. In each of the above cases products which require third-party testing may need to be re-marked with the EU recognised bodies for digit number.
Distributor Becoming Importer
After Brexit, dispatches and sales of goods to other EU states from the UK will be deemed exports from the UK and imports into the EU. Equally dispatches from Ireland to the United Kingdom would constitute exports from Ireland/the EU to the United Kingdom. An entity which may have been a distributor in the other territory may become an importer for the purposes of European Union law with certain consequent responsibilities.
EU legislation does not automatically oblige manufacturers to designate representatives within the EU. If it does so, the manufacturer must designate an entity established within the EU. In other cases, EU legislation requires the appointment of an authorised representative, such as for example, in respect of certain medical devices, pressure equipment, cosmetics, and marine equipment.
After Brexit, authorised representatives in the United Kingdom will no longer be authorised for the purpose of EU legislation. Equally the UK may apply the reciprocal position by requiring EU importers to be recognised in the UK in some cases.
In some cases, EU legislation on products requires a notified body established and designated by an EU state to perform conformity assessment functions in relation to the relevant product under the applicable legislation.
After Brexit UK notified bodies would cease to be EU notified bodies and in the absence of agreement otherwise, they will not be in a position to perform conformity assessment for the purpose of EU legislation.
Businesses in either territory exporting to the other may need to consider the conformity assessment requirements of the place of import, the EU or UK as the case may be and in the absence of agreement on mutual recognition.
General and Specific Product Requirements
General product safety requirements place obligations on the importer. See generally the articles on product safety and product liability.
In particular, there are EU requirements in relation to
- general product safety
- electrical and electronic equipment
- appliances burning gaseous fuels
- energy-related products
- pressure vessels
- low-voltage electrical equipment
- electromagnetic compatibility
- weighing instruments
- medical devices
- pressure equipment
- protective equipment
- recreational craft
- textile fibre names and labelling
- main components of footwear
- bottles measuring
- hot water boilers filled with liquid and gaseous fuels
Vehicle type approval
Vehicles may only be marketed in the EU in accordance with the common system of vehicle type approval provided for in EU regulations. They may only be placed on the market or enter into service if accompanied by a valid certificate of conformity issued by the manufacturer testing conformity with the EU type-approval granted.
The type approval is made by EU authorities in accordance with detailed prescriptive EU legislation which is updated from time to time. It applies to a range of motorised vehicles.
As and from the withdrawal date, the UK approval authority will cease to be an EU type-approval authority. Accordingly, manufacturers may need to have a certificate of conformity referring to a type approval granted by an EU approval body
Similar considerations apply to many vehicle parts and other road and mobile equipment which are the subject of separate vehicle type approval requirements.