Brexit and standards

Edit November 2016: You can also read about this topic, and other issues, in the RAEng publication “Engineering a future outside the EU“.

The UK leaving the EU has implications for product regulations and standards. What those implications are depends largely on the nature of our future relationship with the EU, but also on political decisions made within the UK.

Prediction is very difficult, especially about the future

Informed speculation is a particularly difficult thing to do at the moment – but we can say some things regarding European Standards, the Construction Products Regulation (CPR) and mandatory CE marking.

One thing is certain – in future, products made in the UK and that are sold into Europe must continue to comply with the requirements in almost the same way as they have to with UK inside the EU. I say ‘almost the same’ way because there is possibly some wiggle room in saying that compliance with a non-European standard is equivalent to compliance with the European Standard itself – but that would not be an easy thing to get agreement on.

What happens for products made in the UK for use in the UK, or produced in Europe specifically for the UK market, will depend on decisions that politicians make from here on. For most construction products it is hard to imagine anyone wanting the hassle of making products to multiple standards, and the ENs and ISOs that currently prevail will continue to do so. With graded timber it is slightly different in that it is easier to imagine production fitted to the British market – because, to some extent, this already happens with customary grades, species and sizes.

Given the UK’s historical position on full implementation of CE marking (we opted out of some elements of this under the CPD) it’s not implausible that requirements for this are eventually relaxed for trade within the UK (when they get around to amending the legislation and the various other standards that incorporate connected legislation), but there are strong reasons why big changes are not likely:

• Compliance will still be required when products are sold into Europe – so not complying restricts markets
• Amending and replacing regulations will require a great deal of work…and there will be more important regulations to unpick first
• Creating alternative British Standards would require a great deal of work (see also webinar summary below)
• Multinationals will expect to continue using common standards across their operations – and so will require their UK suppliers comply in much the same way is if they were selling into the EU
• Products would be competing with CE marked imports, which by this point will be the new normal
• People will be designing buildings to the Eurocodes and this will require the materials to comply
• Industry sectors that invested in compliance with the CPR will not be enthusiastic about rival sectors getting an advantage from relaxed rules

So if we see any changes at all, it is most likely that we continue with the harmonised ENs (like EN 14081), but relax some elements of compliance with the Annex Z (CE marking etc) for trade limited to the UK. The amount of influence we have on the content of the harmonised ENs may depend on the UK’s future relationship with the European single market (see webinar summary below).

We may see the end, within the UK, of some of the dafter bits of legislation that come about when lawyers attempt to standardise across so many markets and jurisdictions but for those most part they will be insignificant. We may also have more liberty to expect different standards for products imported into the UK. However, such things are a kind of barrier to trade (it’s not just about tariffs) so this has potential to get messy.

Much, of course, depends on whether we remain within the European Common Market (the EEA “Norway model” or bilateral “Swiss model”) . Norway had to adopt the Construction Products Regulation (and the associated requirements for CE marking and using of European Standards) just as the EU member countries did – whereas Switzerland has the option of its own equivalent legislation.

So what about the more immediate future? For the moment we need to engage with the European Standards just as much as before. Even if we left the common market entirely we can still have a voice at CEN (although there is some risk this is diminished by not being able to be full members) – and we’d still need to comply with the standards when selling into Europe. Standards currently adopted as BS ENs remain current.

BSI has laid some of its cards on the table with an initial statement – and there is also a comprehensive briefing document (prepared before the vote).  They are also doing a live webinar on Friday 8th July between noon and 1pm.

“the UK’s future role in developing European Standards following the EU referendum result” hosted by:
Dr Scott Steedman CBE, Director of Standards
David Bell, Director of Standards Policy
Richard Collin, National and European Policy Manager

You can watch via this link: https://www.youtube.com/watch?v=c9ea9eNIf7s

Edit 8 July 2016.

The webinar is now archived on BSI’s youtube channel.  Here is a summary of some of the main points:

• European Standards (and CEN) are separate from the European Union. The European Union uses European Standards to support some of its legislation.
• Standards are, in principle, voluntary – but they may be a way of demonstrating compliance with requirements that are not voluntary.
• The harmonised standards (eg EN 14081) are different from regular ENs in the sense that they have a different trigger (EU legislation, eg. Construction Products Regulation) and an extra acceptance procedure (that results in them being cited in the Official Journal of the European Union).
• CE marking is to do with legislation – so it’s not per se a standardisation matter (although standards are involved in the implementation of it).  It’s the politicians that decide these things.
• For the moment things continue as they are. BSI remains a full member of CEN with the same rights.
  • Any loss of (the less tangible elements of) UK influence at CEN committees should be temporary
• The further way the UK goes from the European single market, the bigger changes would be
  • If the UK stays within the European Single Market, full membership of CEN is business as usual
  • If the UK does not become an EFTA  member the statues of CEN would need to be changed to allow the UK to continue to be full member
  • It is very important the UK continues to be a full member of CEN – and BSI will work to explain this to the UK and devolved parliaments
• BSI’s position is that it is necessary to remain full members of CEN for the benefit of the UK (including business within the UK)
• For standardisation there can be no half-in, half-out as this would create a back door into the European market
• Divergence of standards would be a major cost for industry
• There do not seem to be any specific opportunities from Brexit for standardisation
• Standardisation work does not directly rely in EU funding, but the risk of loss of access to EU funding for research and development that feeds into standardisation work is a concern

For more info, keep an eye on http://www.bsigroup.com/EUReferendum/  A Q&A will be added.

Who are the CEN members?

The current statues of CEN say that national members must be members of the European Union or EFTA (or likely to be in future) and that national members will be excluded if they no longer fulfill those requirements (this is effective immediate on the decision with no possibility of appeal). If we left the EU without going to EFTA, compliance with ENs would still be required selling into Europe (and hard to avoid within the UK) so this would result in a very serious loss of influence.

Current full members represent: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom.

Switzerland is an EFTA member (but isn’t a member of the EEA – it currently is part of the single market through a number of bilateral treaties).  So the so called Norwegian and Swiss models of Brexit theoretically come with no change in our relationship with CEN (except for some loss of voting power).

Turkey and Macedonia are CEN member because of intention to join the EU.

There is such a thing as affiliate membership, which grants participation in the General Assembly and in technical bodies – but these are countries recognized as a candidate for potential EU membership by the European Council so the UK would not easily fit into that category. The affiliate members currently represent: Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Egypt, Georgia, Israel, Jordan, Lebanon, Moldova, Republic of Montenegro, Morocco, Serbia, Tunisia and Ukraine.

CEN partners are those that are unlikely to become CEN members or CEN affiliates for political or geographical reasons.  They represent, currently: Kazakhstan, Mongolia and Australia. Partners can attend the General Assembly, but have no voting rights. They can participate in Technical Committees as observers, so long as that committee agrees. This could be the position of the UK in the event of a “hard Brexit” and failure to negotiate a change in the statutes of CEN.

What is the Construction Products Regulation?

In 2013 the old Construction Products Directive (CPD) was withdrawn and replaced by the Construction Products Regulation (305/2011/EU). This aimed to update and improve the CPD and had the same fundamental principles – which include:

• To break down technical barriers to trade in construction products within the European Economic Area (EEA)
• To provide for a system of harmonised technical specifications for construction products
  • achieved via a harmonised European Standard (hEN) or a European Technical Assessment (ETA)
• To establish harmonised rules on how to detail the performance of construction products in relation to certain essential characteristics

The 6 “essential requirements” of the CPD were extended to be the 7 “basic works requirements”:

• Mechanical resistance and stability
• Safety in case of fire
• Hygiene health and environment
• Safety and accessibility in use
• Protection against noise
• Energy economy
• Sustainable use of natural resources (the new one)

For certain construction products, the requirements are more specifically described in “mandates” – and known as “mandated characteristics”.  The one for graded timber is M/112.

An important part of the CPR is the Declaration of Performance (DoP) which contains all of the key information about a product’s mandated characteristics. The product manufacturer assumes responsibility that the product is in confirmation with its declared performance characteristics.  The CE marking is the manufacturer’s declaration that the product meets the requirements.

Being a Regulation, rather than a Directive, the CPR’s place in context of UK laws is different and meant that the UK could not avoid some elements of the implementation (as they did under the CPD) for the market within the UK.

Directive:  legislative act that sets out a goal that all EU countries must achieve. It is up to the individual countries to devise their own laws on how to reach these goals.

Regulation: binding legislative act that must be applied in its entirety across the EU.

Here is where my understanding runs out.  The CPR is aligned with something called the “New Legislative Framework” – which is delivered by a number of EU directives.  As directives, the UK is in the process of devising its own legislation.  There was a consultation on it at the end of 2015.