The UK has left the EU and entered a transition period, which is currently proposed to end on 31 December 2020. While there remain huge uncertainties going forward, the ASFP is aware of several potentially positive features for the passive fire protection sector in the current plans.
We know that certain UK and EU bodies will continue to be aligned, up until the end of the transition period. We also know that the British Standards Institute is looking to maintain its position within the European Standards Organisation (CEN). Therefore, currently we do not expect the actual fire test methods to change so that the UK diverges from Europe. This will help manufacturers who will only need to test once to access both UK and European markets.
However, BSI only has a negotiated position for the CEN statutes to ensure continued membership until the end of this year. This was agreed before the UK was due to leave the EU on 31 March 2019 and is consequently unrelated to the end of the transition period (see below) – the end dates of 31 December 2020 just happen to coincide.
Negotiations to alter the statutes of CEN so that the UK can remain a member after the end of the transition period are in hand and it is understood that there is a willingness for this to succeed within CEN. In a recent statement, CEN mentions BSI remaining as a member until the end of 2021, and ultimately beyond that. However, the ultimate relationship may be influenced by the position that the UK adopts during the negotiations in the transition period.
We are also aware that UK Government is continuing to refer to BS EN standards within the Building Regulations Approved Documents. Indeed, recent changes to Approved Document B have given more credence to BS EN 13501: Fire classifications of construction products and building elements, rather than historic BS 476 values.
Another piece of good news is that during the transition period, UK Notified Bodies and Technical Assessment Bodies will continue to be recognised by the EU. Therefore, during the transition arrangements, products which are CE-marked (either from the UK or the EU) can be placed on the market either in the UK or EU. In other words, we don’t see any major changes for product certification coming on 31 January 2020. As a result, 31 December 2020 will become the next major date to watch as we move towards the end of the transition period.
The end of the transition period
The Government has already said it does not want to extend the transition period. It is impossible to give guidance at the moment on the likely outcome of the trade negotiations going forward as we have no idea of the likely outcome is at this stage. However, the Government has signalled to the EU that (unlike the previous deal negotiated by Theresa May’s government) it does not seek close regulatory alignment in the future, which will likely lead to regulatory divergence and may impact on the scope of any trade deal that can be negotiated with the EU by the end of the year.
The UK Government has always advocated that industry should be prepared for no deal, and it is likely that we will need to look to prepare in that direction later in the year. The remainder of this text considers what steps might be necessary in the event of a no-deal exit on 31 December 2020.
UK construction companies can use UK-certified or CE-marked products after 1 January 2021. Even in the event of no deal, the UK will recognise EU-generated CE marks after 31 December 2020, for a time-limited period. From comments made by the Ministry for Housing, Communities and Local Government (MHCLG), this co-existence period is likely to run for a time measurable in years.
New products that are placed on the market for the first time after the end of the transition period cannot be CE marked – they would need to pass through a UK-based scheme. One option here will be the proposed new UKCA mark. More information on the UKCA mark can be found at https://www.gov.uk/guidance/prepare-to-use-the-ukca-mark-after-brexit
For product manufacturers wanting to place a product on the EU market, the situation is more complex regarding Notified Body CE-marking activities and also Technical Assessment Body (TAB) activities regarding European Technical Assessments (ETAs):
1) The situation regarding CE marking and Notified Bodies is that UK Notified Bodies will not be recognised in the EU. However, the UK fire industry Notified Bodies are all setting up their own EU27 satellite offices. Once these offices are set up, files can be transferred across.
It is the decision of a Notified Body to decide whether to accept the testing and assessment of a product. Therefore, we expect that if a UK-based Notified Body is transferring a file to an EU office within the same organisation, the historical testing and assessment will remain acceptable.
There are at least four bodies on the European Commission’s Nando (New Approach Notified and Designated Organisations) Information System, with both UK and EU27 registered offices, and at least one other is close to achieving this for fire-resisting products. For further information visit the Nando website https://ec.europa.eu/growth/tools-databases/nando/index.cfm
2) However, if a manufacturer is transferring from a UK-based Notified Body to a completely different Notified Body organisation, it is possible that the new EU 27 Notified Body might refuse to accept historic data.
The Construction Products Association is reporting that other market areas are not being supported by UK Notified Bodies in the same way as the fire industry. In other market areas, manufacturers are having to approach EU-based Notified Bodies where they have no prior relationship. In some of these cases, existing UK test data is not being accepted, and retests demanded.
3) The situation for passing ETAs through the European Organisation for Technical Assessment (EOTA) is subtly different. Any published ETA already on the EOTA website will remain on the EOTA website (even if from a UK-based TAB, after a no-deal exit). However, the UK TABs will lose their EOTA membership in the event of a no-deal Brexit.
The UK TABs also need to work to set up an EU27 TAB office, registered on the EOTA website. The first TABs’ EU offices are now appearing on EOTA’s website: https://www.eota.eu/en-GB/content/how-to-find-a-tab/55/
The UK Government has a handy guide to preparing for a no-deal Brexit after the transition period. This consists of a questionnaire that then links to a number of advice documents both for business and personal consideration. It can be found at https://www.gov.uk/get-ready-brexit-check.
Obviously, the situation continues to evolve. The ASFP will endeavour to keep up to date with developments as they occur.
For more information, go to www.asfp.org.uk