9 March 2018
Withdrawal of the UK: Its Effect on EU Importers, Authorised Representatives and Product Compliance in the Field of Consumer Goods
The European Commission has published a document analysing the impact of the UK's withdrawal from the EU on non-food and non-agricultural products. The document discusses products that will be placed on the EU-27 market as from the withdrawal date, related in particular to identification of economic operators (such as importers) and product compliance.
The EU product legislation to which this notice applies includes a variety of consumer goods that are commonly exported from Hong Kong and mainland China, such as electrical and electronic equipment, textiles, toys, cosmetics and fireworks.
Hong Kong sellers may be familiar with the fact that the EU’s single market for goods consists of 500 million consumers. The EU’s main goal is to ensure the free movement of goods within that market, and to set high safety standards for consumers and the protection of the environment. However, with Brexit looming on the not-too-distant horizon, Hong Kong businesses are reminded of legal repercussions which need to be considered when the UK ceases to be a member of the EU. The European Commission document outlines some of the main points traders should keep in mind in this regard.
Subject to any UK-EU transitional arrangement that may be contained in a possible withdrawal agreement, as from the withdrawal date, the EU’s product-related laws – whether for products used by consumers or professionals – will no longer apply to the UK. This will lead to a number of consequences for products placed on the EU-27 (rather than the EU-28) market.
The laws concerned include the RoHS Directive (for electronic and electrical goods), the batteries Directive, the Directive on ecodesign requirements, the Directive on the safety of toys, the Regulation on textile fibre names and related labelling and marking of textile products, and the Directive relating to labelling of the materials used in the main components of footwear.
According to EU product legislation, the importer is the economic operator established in the EU who places a product from a third country (e.g. Hong Kong) on the EU market. As from the withdrawal date, a manufacturer or importer established in the UK will no longer be considered as an economic operator established in the EU. As a consequence, an economic operator established in the EU-27 who, prior to the withdrawal date, was considered as an EU distributor, will become an importer for the purposes of EU product legislation in relation to products from a third country. This operator will have to comply with the specific obligations relevant to an importer, which are different (and certainly more burdensome) from those of a distributor.
Moreover, currently, Union product legislation does not generally oblige the manufacturer to designate an authorised representative in the EU. However, if the manufacturer chooses to do so, the applicable legislation requires the authorised representative to be established in the EU. Authorised representatives are appointed by EU or non-EU manufacturers (e.g. those based in Hong Kong) to conduct largely administrative tasks on behalf of the manufacturer. In addition, there is some EU legislation which does require an authorised representative (e.g., the law regulating medical devices) or a Responsible Person (the Regulation on the safety of cosmetic products) to be appointed. Once again, these have to be established in the EU.
Authorised representatives or Responsible Persons established in the UK will not, as from the withdrawal date, be recognised as authorised representatives or Responsible Persons for the purposes of the applicable EU product legislation. Therefore, Hong Kong sellers are advised to take the necessary steps to ensure that, as from the withdrawal date, their designated authorised representatives or Responsible Persons are established in the EU-27.
Moreover, in some product areas, EU legislation requires the intervention of a qualified third party, known as a Notified Body, in the conformity assessment procedure, to mainly assess safety. This is the case, for example, for some types of toys, or some types of medical devices. Directive 2013/29/EU on pyrotechnic articles (fireworks) always foresees the involvement of a Notified Body.
EU product legislation requires Notified Bodies to be established in a Member State and be designated by a Member State notifying authority for performing the conformity assessment tasks set out in the relevant law. Therefore, as from the withdrawal date, UK Notified Bodies will lose their status as EU Notified Bodies and will be removed from the Commission's information system on notified organisations (the NANDO database). As such, Hong Kong sellers should bear in mind that UK bodies will not be in a position to perform conformity assessment tasks pursuant to EU product legislation as from the withdrawal date.
Economic operators may of course hold certificates issued by a UK Notified Body prior to the withdrawal date and plan to continue placing the product concerned on the EU-27 market as from the withdrawal date. They are thus advised to consider either applying for a new certificate issued by an EU-27 Notified Body or arranging for a transfer – on the basis of a contractual arrangement between the manufacturer, the UK Notified Body, and the EU-27 Notified Body – of the file and the corresponding certificate from the UK Notified Body to an EU-27 Notified Body. The latter would then take over the responsibility for that certificate.
Hong Kong sellers are advised to keep the above factors in mind when planning their sales strategies in the future EU of 27 Member States, once Brexit finally takes place.
Please click on the following hyperlink for more information: Single Market for Goods.