Got Brexit done
05 March 2020
In the first week of February I attended the annual meeting of the European Notified Bodies Group for the ATEX Directive (ExNB). This was after the UK had officially left the EU but, of course, nothing has actually changed. UK Notified Bodies are still recognised in the EU; our EU-Type Examination Certificates remain fully valid and support manufacturers’ CE declarations and markings.
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In fact, all that has happened, as far as manufacturers and users of ATEX equipment are concerned, is that “the can has been kicked further down the road”. The date to be concerned about is now January 1, 2021. This “can” seems to have a life of its own!
So, what happens in the meantime? All UK Notified Bodies have made arrangements to allow their customers to transfer existing documents (primarily EU-Type Examination certificates and QANs) to their partner Notified Body operating from another EU country. Whether that will actually be necessary depends on the outcome of the current trade negotiations between the UK and the EU Commission.
There is certainly a precedent for countries who are not members of the European Economic Area (EEA comprising EU plus Norway, Iceland and Lichtenstein) to have Notified Bodies. Note that this does not include Switzerland which has several very specific agreements with the EU, but remains outside the EEA, even though it is in the common Schengen travel area. I understand that although there is border free travel for people, some goods are subject to inspection and duties.
Switzerland has more than one Notified Body for ATEX, as does Turkey, which also has some specific agreements. The EU might actually dispute the use of the term Notified Body in that way, but effectively that represents the effect of the agreements, as documents from those bodies are accepted as if they were actually EU Notified Bodies.
Most people operating in our sector would hope that the UK can negotiate a deal that will be similar to Switzerland or Turkey. As a fall back, it should also be noted that Canada has negotiated the right to appoint EU Notified Body equivalents under the CETA provisions, although none have yet been appointed.
How the negotiations will actually proceed, between now and the end of the year, is well beyond the powers of my crystal ball.
If the UK bodies retain their Notified Body status from January 2021 onwards, all the time and effort spent arranging the transfer of certificates to elsewhere in Europe will have been a waste of time. However, such a transfer (and the related costs in changing labels, etc.) can be considered in the same light as paying for an insurance policy: just another cost for the privilege of remaining in business!
If, come 2021, negotiations have not achieved that outcome, the insurance money will have been well spent. As we move towards the end of the year it may come clearer as to the expected outcome, so there is not necessarily any need to take immediate action, but beware that if transfer becomes necessary and if many certificates still remain to be transferred, there will be logistic problems in achieving the necessary transfers at short notice by the deadline.
It is not up to the UK Notified Bodies to tell their customers what to do, only to put the facts before them as they emerge.
Based on information the UK government made available before the January 31 deadline that has just passed, the fall back scenario is that you will require certification from an EU Notified Body (typically the one where your certificates have been transferred) to apply the CE Marking and that you will need that CE Marking for sale in the UK as well as the rest of Europe. We believe that the draft legislation, that was prepared to replace the ATEX Directive in the UK, is likely to be passed. We were told this would be passed on the day of exiting but have heard nothing since February 1. The main provision is that all existing UK based Notified Bodies immediately become UK approved bodies and can issue certificates to allow the fixing of the UKCA Mark (effectively the replacement for the CE Marking). The UKCA Mark and CE will both be accepted for a short time (yet to be determined), before only the UKCA mark will be acceptable in the UK.
About the author
SGS Baseefa’s Technical Manager Ron Sinclair also has a personal contract to act as an authorised signatory on behalf of SGS Fimko, the Finnish Notified Body partnered with SGS Baseefa. He is a vice-chair of the European Notified Bodies Group for ATEX (ExNB), as well as chair of both the UK and European Standards Bodies operating in this area.