…outcomes on technical approvals of construction products.

The lack of definition in the final Brexit outcome creates uncertainties across our industry, and this includes in the certification and approval of construction products. BBA wants to provide the best support and service to its clients and partners in the sector, and has been following Brexit activities closely.

BBA continues to liaise with UK and European parties to ensure that information is current and that all parties understand the importance of ongoing relationships and recognition in this sector. At this date, the full spectrum of Brexit outcomes seems to be possible, with no option totally ruled out, and the aim of this article is to summarise as far as possible what the situation will be for each outcome. Outcomes range from staying in the European Union, to leaving but with a transitional period, to leaving with no deal.

Information from the Government is changing at a fast pace currently, and BBA continues to follow current developments.

Could the UK stay within the European Union?
Yes, in principle. In December 2018, the European Court of Justice ruled that the UK could unilaterally decide to revoke its Article 50 action. This would not require the agreement of the other 27 EU member states. There would be a number of political and logistical challenges created by this action, but some suggest that the revocation could be used not to stop Brexit, but as a means of creating more time: there is no unambiguous indication that the UK could not revoke the Article 50 trigger, and then re-trigger it at a later date allowing more time for discussion. While possible, though, revoking the Article 50 action and staying in the EU would generally be considered the least likely outcome, unless mandated by a further referendum.

Could the UK extend the Article 50 period beyond 31st October 2019?
The UK has already requested an extension of the Article 50 period beyond the original date of March 29th 2019; 31st October 2019 was agreed. In early April, the UK made a request for a further extension, and at the date of writing, this request is being considered.

The likelihood of this agreement will depend on the reason and duration of the requested extension. Longer extensions may be considered reasonable by other EU member states if the UK needs to hold either a general election, to process new legislation before leaving, or to hold one or more further referenda. If the UK is still a member state after May 23rd, it will be expected to take part in EU elections.

Could the UK leave the EU with a transitional deal?
Yes, and this seems to be what the majority of parties would prefer. The current proposed deal includes a transitional period until at least the end of the year 2020 in which further negotiations and arrangements can be addressed, and this maintains the UK’s current relationship with the EU during that period. The challenge has been to present a deal that has sufficient support across the political spectrum. This is what the Government and Brexit teams are currently working on. The judgement of the United Kingdom Supreme Court in the Miller case (R (on the application of Miller and another) v Secretary of State for Exiting the European Union) means that the Government must vote through any proposed negotiated deal, and the recent Government defeats in Parliamentary votes has required the Government to re-visit the planned deal in order to earn wider support. Cross-party discussions are taking place to try to find an acceptable deal, and negotiations continue between the UK and EU.

Could the UK leave the EU with no deal?
Yes, this is the ‘hard Brexit’ option, and while it would be welcomed by some, it is considered by many observers to be the most damaging outcome. In the absence of a deal, and with no change in deadline the UK will leave the UK on October 31st 2019. For our industry, this outcome would cause the most disruption. Parties such as MHCLG have been meeting with members of the industry, and while they continue to state that exiting with no deal is neither expected nor desired, they naturally want to encourage organisations to prepare for the no-deal scenario.

What impact will these Brexit outcomes have on BBA Agrément Certificates and accredited BBA test reports?
The validity of Agrément certificates and test reports will be unaffected by Brexit. BBA’s accreditation is with UKAS (United Kingdom Accreditation Service), and UKAS remains the UK’s national accreditation body. UKAS is a signatory to European and International accreditation agreements for mutual recognition, and UKAS is not expecting this status to be impacted by the UK’s status as a European member state. European Accreditation has amended its Articles of Association to allow UKAS to maintain its membership. BBA is accredited as a Certification Body, a Management Systems Certification Body, an Inspection Body, and a Testing Laboratory. Full UKAS accreditation scopes can be seen from our website.

What impact will these Brexit outcomes have on BBA’s Notified Body and Technical Assessment Body activities?
If the UK stays in the European Union, there will be no change to these activities.If the UK leaves the European Union with a deal, then the Notified Body and Technical Assessment Body activities will remain unchanged until at least the end of the year 2020, during which time negotiations will continue on future trading and mutual recognition arrangements. BBA has opened a new company based in Ireland, and is currently being assessed for accreditation and Notification there.

This process should be completed before the end of 2019. The company will also apply to operate as a Technical Assessment Body. Introducing a company within another European member state provides a means of transferring some of our services back into the European Union in order to continue support to our clients.

If the UK leaves the European Union without a deal, then currently it seems that the BBA, along with other UK Notified Bodies and Technical Assessment Bodies, will not be able to carry out Notified Body activities or issue European Technical Assessments. This is because the CPR (Construction Products Regulation) will cease to operate in the UK on the leaving date in the absence of any other arrangement. There is some ambiguity over whether existing approvals will cease or will persist, for products that are already on the market, but we are choosing to plan for the contingency that validity will cease on the leaving date.

To address this ‘worse-case’ scenario, the BBA is proposing to develop a partnering agreement to transfer technical information such that a TAB in another EU member state can issue a valid ETA or certificate of conformity, to provide continuity of approval to our clients with the minimum of effort. This is not mandatory, and our clients are free to make their own provisions but is an offering to ensure your business is as unaffected as possible by actions and decisions on Brexit that are outside the control of the BBA. The BBA has worked with other European technical assessment bodies for many years, and maintains strong and constructive working relationships with them.

Will there be an equivalent to CE Marking in the UK after Brexit if there is no deal?
You may be aware of the provisions proposed within the UK to mirror a version of the CPR into the UK statute book. If the UK leaves the EU with no deal, the BBA will immediately become a UK Approved Body and UK Technical Assessment Body, and will be placed on new UK databases. BBA will offer to convert all ETAs and certificates of conformity to the UK equivalent to allow these products to be placed on the market within the UK. This provision ensures that goods currently placed on the UK market by our clients will retain validity independent of any time-limited grace period the UK government grants to European CE marking. The Government has also provided information on the use of the UKCA (UK Conformity Assessed) marking that would be introduced if the UK leaves the EU with no deal.

As we are now moving closer to exiting the EU, the BBA has set up a bespoke communication channel to answer questions and concerns relating to the above. Should you have any queries please send an email to: [email protected]