13 February 2018

Impact of Brexit on EU product stewardship legislation

The EU Commission has recently issued guidance on the impact the nearing Brexit will have on products covered by EU product stewardship legislation. Such products – that range from electrical and electronic equipment to cosmetics, and more – are referred to in the guidance as "industrial products". This e-alert summarizes the key elements of the new EU guidance. Depending on the sales channels involved, Brexit may result in economic operators suddenly qualifying as "importers" (having to meet related requirements), and impact products subject to conformity assessment procedures that involve so-called "notified bodies" (as UK bodies will no longer be authorized to act as such). This e-alert is a must read for any company manufacturing or importing products into the EU-27.

The EU Commission publishes a notice to stakeholders on the impact of Brexit on the EU rules in the field of industrial products

On 29 March 2017, the United Kingdom submitted the notification of its intention to withdraw from the European Union pursuant to Article 50 on the Treaty of the European Union (EU). This means that, unless the ratified withdrawal agreement establishes another date, all (primary and secondary) EU legislation will cease to apply to the United Kingdom as from 30 March 2019at 00:00h (CET) (the Withdrawal Date), and the United Kingdom will become a so-called "third country" (1).

The withdrawal by the United Kingdom will not only have important consequences for the EU and national authorities, but also for private parties. Economic operators must take into account these consequences and any legal repercussions both for them and their businesses.

On 22 January 2018, the EU Commission published a Notice to stakeholders on the impact that the withdrawal of the United Kingdom may have on the EU rules in the field of "industrial" products (2). We summarise its key elements below, as well as the practical implications for your business.

Identification of economic operators

Most EU product legislation identifies the importer as the economic operator established in the EU who places a product from a third country on the EU market. After the Withdrawal Date, a person established in the United Kingdom will no longer be deemed to be an economic operator established in the EU, and will no longer be able to qualify as the importer. This may result in operators down the supply chain, such as distributors or downstream users, becoming the effective importer who must then comply with the related obligations.

In cases where EU legislation allows for the appointment of an authorised representative (eg RoHS (3)) or responsible person (eg cosmetic products (4)) in the EU (which is often offered as a solution for manufacturers established outside of the EU to comply with their relevant obligations), the appointment of UK-based authorised representatives or responsible persons may no longer be possible after the Withdrawal Date, and authorised representatives or responsible persons established in the UK may no longer be recognised as authorised representatives or responsible persons for the purposes of the applicable EU product legislation.

Conformity assessment procedures and notified bodies

For some product areas, EU legislation requires the involvement of a third-party technical expert, a so-called "notified body", in the context of the conformity assessment procedures and the ability to affix the CE-marking on products.

The aim of these procedures and the affixing of CE-marking on products is to ensure that such conforming products may be placed on the EU market and may move freely within the EU without further registration obligations or related obligations.

EU product legislation requires that notified bodies are established in an EU Member State and are designated by a Member State as a competent authority to carry out the conformity duties as set out in the relevant legislation. As from the Withdrawal Date, the UK notified bodies may lose their status as EU notified bodies, and – if so – will lose their ability to perform conformity assessments in the context of EU legislation.

Where economic operators must hold certificates issued by a notified body; economic operators are advised to take the necessary steps to ensure that they hold certificates issued by an EU27 notified body to prove product compliance.

If economic operators hold certificates for certain products issued by a UK notified body prior to the Withdrawal Date, and these economic operators plan to continue to place the relevant products on the EU27 market after the Withdrawal Date, they are advised to either apply for a new certificate issued by an EU27 notified body or arrange for a transfer – on the basis of a contractual arrangement between the manufacturer, the UK notified body and the EU27 notified body – of the relevant file and the corresponding certificate from the UK notified body to the EU27 notified body, so that the EU27 notified body can take over the responsibility for that certificate.

Economic operators relying on a UK-based authorised representative or responsible person are advised to take the necessary steps to ensure that, as from the Withdrawal Date, their authorised representative or responsible person is established in the EU-27.

How can we help you

Allen & Overy (Belgium) LLP and Allen & Overy LLP have a leading product regulation practice, with specialist teams in the U.S., the UK and continental Europe. We provide specialist advice on the obligations that economic operators across the supply chain must fulfil, on set-ups to ensure product regulation compliance and on related issues, as well as on (contractual) protection mechanisms to put in place to protect your business against related risks. With respect to Brexit specifically, we provide advice on any practical impact that Brexit may have on your business and the ways to deal with this.

If you have any questions in this respect, please contact Gauthier van Thuyne and Fee Goossens in Brussels or Jochem Spaans in Amsterdam.

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(1) Negotiations are on-going with the United Kingdom with a view of reaching a withdrawal agreement.

(2) http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=612136. The Notice applies primarily to the following EU legislation:

Annex: Indicative list of Union product legislation

This notice applies primarily to:

  • Products within the scope of Directive 2001/95/EC on general product safety (OJ L 11, 15.1.2002, p. 4)
  • The restriction of the use of certain hazardous substances in electrical and electronic equipment (Directive 2011/65/EU, OJ L 174, 1.7.2011, p. 88) and Directive 2012/19/EU on waste electrical and electronic equipment (OJ L 197, 24.7.2012, p. 38)
  • Batteries and waste batteries (Directive 2006/66/EC, OJ L 266, 26.9.2006, p. 1)
  • Appliances burning gaseous fuels (Directive 2009/142/EC, OJ L 330, 16.12.2009, p. 10, to be replaced as of 21 April 2018 by Regulation (EU) 2016/426, OJ L 81, 31.3.2016, p. 99)
  • Ecodesign requirements for energy-related products (Directive 2009/125/EC, OJ L 285, 31.10.2009, p. 10, and all implementing Regulations for specific product groups that have been adopted under this Framework Directive)
  • Simple pressure vessels (Directive 2014/29/EU, OJ L 96, 29.3.2014, p. 45)
  • Toys’ safety (Directive 2009/48/EC, OJ L 170, 30.6.2009, p. 1)
  •  Electrical equipment designed for use within certain voltage limits (Directive 2014/35/EU, OJ L 96, 29.3.2014, p. 357)
  • Machinery (Directive 2006/42/EC, OJ L 157, 9.6.2006, p. 24)
  • Electromagnetic compatibility (Directive 2014/30/EU, OJ L 96, 29.3.2014, p. 79)
  • Measuring instruments (Directive 2014/32/EU, OJ L 96, 29.3.2014, p. 149)
  • Non-automatic weighing instruments (Directive 2014/31/EU, OJ L 96, 29.3.2014, p. 107)
  • Cableway installations designed to carry persons (Directive 2000/9/EC, OJ L 106, 3.5.2000, p. 21, to be replaced as of 21 April 2018 by Regulation (EU) 2016/424, OJ L 81, 31.3.2016, p. 1)
  • Radio equipment (Directive 2014/53/EU, OJ L 153, 22.5.2014, p. 62)
  • Medical devices and Active implantable medical devices (Directives 93/42/EEC, OJ L 169, 12.7.1993, p. 1, and 90/385/EEC, OJ L 189, 20.7.1990, p. 17, to be replaced as of 26 May 2020 by Regulation (EU) 2017/745, OJ L 117, 5.5.2017, p. 1, with the exception of the provisions of Directives 93/42/EEC and 90/385/EEC listed in Article 122 of Regulation 2017/45, for which a later date of repeal is provided for)
  • In vitro diagnostic medical devices (Directive 98/79/EC, OJ L 331, 7.12.1998, to be replaced as of 26 May 2022 by Regulation (EU) 2017/746, OJ L 117, 5.5.2017, 6 p. 176, with the exception of the provisions of Directive 98/79/EC listed in Article 112 of Regulation 2017/46, for which a later date of repeal is provided for)
  • Cosmetics (Regulation (EC) 1223/2009, OJ L 342, 22.12.2009, p. 59)
  • Pressure equipment (Directive 2014/68/EU, OJ L 189, 27.6.2014, p. 164)
  • Transportable Pressure equipment (Directive 2010/35/EU, OJ L 165, 30.6.2010, p. 1)
  • Aerosol Dispensers (Directive 75/324/EEC, OJ L 147, 9.6.1975, p. 40)
  • Lifts and safety components for lifts (Directive 2014/33/EU, OJ L 96, 29.3.2014, p. 251)
  • Recreational craft and personal watercraft (Directive 2013/53/EU OJ L 354, 28.12.2013, p. 90)
  • Equipment and protective systems intended for use in potentially explosive atmospheres Directive 2014/34/EU, OJ L 96, 29.3.2014, p. 309)
  • Explosives for civil uses (Directive 2014/28/EU, OJ L 96, 29.3.2014, p. 1)
  • Construction products (Regulation (EU) No 305/2011, OJ L 88, 4.4.2011, p. 5)
  • Pyrotechnics (Directive 2013/29/EU, OJ L 178, 28.6.2013, p. 27)
  • Regulation on the Labelling of Tyres (Regulation (EC) No 1222/2009, OJ L 342, 22.12.2009, p. 46)
  • Personal protective equipment (Directive 89/686/EEC, OJ L 399, 30.12.1989, p. 18, to be replaced as of 21 April 2018 by Regulation (EU) 2016/425, OJ L 81, 31.3.2016, p. 51)
  • Marine equipment (Directive 2014/90/EU, OJ L 257, 28.8.2014, p. 146)
  • Noise emission in the environment by equipment for use outdoors (Directive 2000/14/EC, OJ L  62, 3.7.2000, p. 1)
  • Energy labelling (Regulation (EU) No 2017/1369, OJ L 198, 28.7.2017, p. 1, and all delegated Regulations for specific product groups that have been adopted under this Framework Regulation and those adopted under Directive 2010/30/EU, OJ L 153, 18.6.2010, p. 1, the predecessor of Regulation 2017/1369).
  • Regulation on textile fibre names and related labelling and marking of textile products (Regulation (EU) No 1007/2011, OJ L 272, 18.10.2011, p. 1)
  • Directive relating to labelling of the materials used in the main components of footwear (Directive 94/11/EC, OJ L 100, 19.4.1994, p. 37)
  • Metrology - (Directive 2011/17/EU OJ L 71, 18.3.2011, p. 1 - Repeal of several directives – transition till 2025)
  • Bottles as measuring containers (Directive 75/107/EEC, OJ L 42, 15.2.1975, p. 14)
  • Making up of pre-packaged products (Directive 76/211/EEC, OJ L 46, 21.2.1976, p. 1)
  • Hot-water boilers fired with liquid or gaseous fuels (Directive 92/42/EEC, OJ L 167, 22.6.1992, p. 17. The Directive was repealed by Commission Regulation (EU) No 813/2013 (OJ L 239, 6.9.2013, p. 136) implementing Directive 2009/125/EC of the European Parliament and of the Council with regard to ecodesign requirements for space heaters and combination heaters, except for Articles 7(2) and 8 thereof and Annexes III to V thereto)
  • Interoperability of the rail system within the European Union (Directive 2008/57/EC, OJ L 191, 18.7.2008, p. 1, to be replaced as of 16 June 2020 by Regulation (EU) 2016/797, OJ L 138, 26.5.2016, p. 44)
  • Interoperability of Electronic Road Toll Systems (Decision 2009/750/EC implementing Directive 2004/52/EC, OJ L 268, 13.10.2009, p. 11)
  • Tachographs in road transport (Regulation (EU) No 165/2014, OJ L 60, 28.2.2014, p. 1)
  • Interoperability of the European Air Traffic Management network (Regulation (EC) No 552/2004, OJ L 96, 31.3.2004, p. 26)

(3) Article 8 of Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast).

(4) Article 4 and 5 of Regulation (EC) No 1223 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (recast).

Gauthier Vanthuyne
City Gauthier.VanThuyne@allenovery.com
Fee Goossens +32 2 780 2601
Senior Associate, Brussels fee.goossens@allenovery.com
Jochem Spaans +31 (0)20 674 15 00
Counsel, Amsterdam Jochem.Spaans@allenovery.com

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