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How to export biocidal products post-Brexit

Updated: Aug 25, 2021



Exporting to Europe & the UK post-Brexit

In this blog Paul Hardman from GL Law, our legal partners in Bristol and London, looks at the impact of Brexit on placing goods on the EU single market after 1st January 2021, with a spotlight on Biocide manufacturers. Please note, at the time of writing (November 2020), we’ve assumed a deal will be reached and the principles agreed in the EU Withdrawal Agreement Act 2020 will be applied.


UK Manufacturers and Exporters to the EU

Firstly, UK manufacturers based in the EU and UK that export to the EU must make sure they understand the EU Commission’s definition of ‘placing on the market’. The guidance defines this as making a product available for the first time on the Community (EU) market with a view to distribution or use in the EU.


Any goods that are placed on the EU single market after the end of the transition period will need to ensure that they conform with EU goods regulations. However, the good news is that UK manufacturers’ obligations will remain mostly unchanged after 1st January 2021, apart from ensuring they are aware of, and complying with, EU labelling requirements.


In addition, if a manufacturer has already placed goods on the market in an EU member state, (other than the UK) before 1st January 2021, then they will be able to continue in circulation after the end of the transition period.


Distribution

If products are exported from the UK into the EU single market after 1st January 2021, they must be labelled with details of an importer based in the EU or EEA. Products that don’t have a label detailing a UK company as the importer will not be permitted to be placed on the EU single market after the UK leaves the EU. This includes labels applied before 1st January 2021.


Authorised Representatives

At the end of the transition period UK-based authorised representatives will no longer be recognised by the EU. An ‘Authorised Representative’ is a natural or legal person established in the EU, EEA or Switzerland who, explicitly designated by a non-European manufacturer, acts on its behalf in carrying out certain tasks required in the applicable directives. Where reference is made to the term ‘manufacturer’, it is understood as indicating either the manufacturer or its representative.


The delegation of tasks from the manufacturer to the authorised representative must be explicit and should take place in writing; in particular it should ensure that it clearly defines the contents of the tasks and limits of the representative’s powers. The tasks that may be delegated to the authorised representative are fundamentally of an administrative nature and the authorised representative cannot generally modify the product on its own initiative in order to bring the product in line with the applicable directives.


By way of an example, a manufacturer may be able to arrange for this relationship, as a commercial matter, with a distributor of its products, if it has one in place.


However, it’s important to understand that the manufacturer remains ultimately responsible for actions carried out by an authorised representative on its behalf.


EU Manufacturers and Exporters to the UK

Many of the points that apply above to UK Manufacturers and Exporters to the EU – placing on the market, distribution and authorised representatives – also apply to EU Manufacturers and Exporters to the UK market.


In practice, this means that EU companies will need to establish a place of business or appoint an authorised representative in the UK (specific guidance should be obtained on the detailed requirements of applicable regulations).


For companies wishing to establish their own operation this will mean either:


· Setting up a place of business or branch of the company in the UK as an overseas company in the United Kingdom. A “place of business” is premises where there is a physical or visible indication that a company may be contacted there, or a particular location where the company conducts its business, even if there is no such physical or visible indication. A “branch” is a part of a company that is organised to conduct business on behalf of the company.


· Setting up a subsidiary of the company, typically this will be a private company limited by shares with no minimum capital requirement and no requirement that directors be UK nationals or based in the UK. However, a UK registered office address is required and at least one ‘natural’ person as a director.


Biocide exporters – sector in focus…

As part of changes brought about by Brexit, from 1st January 2020, the Health and Safety Executive (HSE) will replace the European Chemicals Agency (ECHA) as the competent authority in Great Britain*,