In order to compete effectively, most manufacturers and distributors will import goods manufactured outside the EU to provide a full product range for their customers.
While this investment has many benefits, there is a drawback not normally associated with imports the validity of any European safety certification (CE) marks applied to the products by the overseas company. Distributors of such goods could be responsible for ensuring they conform with the relevant EU safety directive, as a CE mark is the product’s passport into Europe.
General product safety has been monitored since 1992 by CE marking. EU directives define and impose product safety duties on manufacturers and distributors. There are 14 safety directives and a further 14 are in the pipeline covering most engineering products.
The directives specify essential requirements to which a product must conform in order to be put on the market. The ‘essential requirements’ are contained in the relevant directive and products may need to comply with the requirements of more than one directive.
For a product made in the EU, the manufacturer may either carry out the necessary safety tests itself or use an independent testing house which has been certified by a competent authority. In the UK, this would be the Health and Safety Executive.
As soon as the test is completed, a declaration of conformity to the essential requirements must be prepared. After this, the manufacturer affixes a ‘CE’ mark to his product. A technical file must be maintained, containing approved documentation showing the manufacturer’s reasoning as to how his product satisfies EU requirements. This must be kept for at least 10 years after the manufacture of the last unit of the product.
If a product does not bear a CE mark, it may not lawfully be put on the market within the EU. This effectively gives the CE mark the status of a passport to the EU and explains why some producers from outside the EU may use the mark to mislead customs officers and gain access to EU markets.
If a manufacturer puts a product on the market without testing it as required, that manufacturer may be guilty of a criminal offence. If a manufacturer from overseas puts a product with a CE mark onto the EU market, the General Product Safety Regulations puts responsibility for the product’s compliance with the directives on the manufacturer’s representative.
If the manufacturer is not established in the EU, or if there is no EU representative, the importer of the product is responsible in law. Also, if the importer offers to service, repair and replace the product, then the duty to ensure the product complies with safety requirements is even stricter.
The general principle is that unless a product bears a CE mark, it cannot be sold within the EU market. If an importer is bringing in a product and the product’s manufacturer is not established in the EU, then a combination of the EU’s directives and the UK’s General Safety Regulations would impose an obligation on the importer to ensure the product complies with CE safety standards.
In practical terms, the importer’s overseas contact should get help in the country of manufacture from recognised testing houses to complete the tests and certificates. The importer should ensure a copy of any such compliance certificates is provided to it.
Importers need to be wary of any overseas manufacturers which are reluctant to provide the information. These rules are new, but in the absence of a culpable party elsewhere within the EU to prosecute, the UK Health & Safety Executive will look to the importer to ensure the product conforms with the relevant directive.
Manufacturers will already be familiar with these directives, but importers may not. Help can be obtained from the DTI about the CE directives as can guidance on which organisations may be able to test your imported products on your behalf.
Keith Cutler is a senior solicitor at Davies Arnold Cooper, Manchester