Last updated on 23 Nov, 2020

Legally binding effects of Brexit as regards Union type-approval legislation

Background

The United Kingdom of Great Britain and Northern Ireland (hereinafter referred to as ‘United Kingdom’ or ‘UK’) had in 2017 notified its intention to withdraw from the European Union (hereinafter referred to as ‘EU’ or ‘Union’), triggering a process commonly referred to as Brexit.
Following a series of developments, the UK left the Union on 1 February 2020, and became a ‘third country’, i.e., a country not member of the EU, subject to the dedicated Withdrawal Agreement [1] (hereinafter referred to as ‘Withdrawal Agreement’) which ensures an orderly departure and legal certainty in important areas.
The Withdrawal Agreement, amongst others, established a time-limited transition period, from 1 February 2020 until 31 December 2020, during which Union law, with certain exceptions not relevant in the context of this communication, remains applicable to and in the UK. Moreover, during this transition period, the UK continues to, amongst others, participate in the EU’s Single Market and Customs Union.

Article 132 of the Withdrawal Agreement foresaw the possibility of an extension to the above-mentioned transition period, if a decision about the matter was adopted before 1 July 2020. However, such extension was not decided and hence the transition period ends on 31 December 2020.
Consequently, and irrespective of any ongoing negotiations between the EU and the UK or any agreement on a future partnership between the EU and the UK, all stakeholders should be aware of and be prepared for the significant changes occurring in any event as from 1 January 2021, 00:00h Central European Time (CET).

Brexit has its consequences, not only for the EU and national authorities but also for private parties, including importers, distributors, manufacturers, manufacturer’s representatives, and other interested stakeholders.

Important information from the European Commission about changes taking place in any event as of 1 January 2021, 00:00h CET, may be found in document COM/2020/324 final: Getting ready for changes - Communication on readiness at the end of the transition period between the European Union and the United Kingdom and/or through the webpage Getting ready for the end of the transition period.

Concerning ‘automotive items’ [2], we, the Technical Regulations Division within the Malta Competition and Consumer Affairs Authority (MCCAA), have updated this communication, which briefly informs about Brexit related updates in Union type-approval legislation, consequences, and legal changes relevant to type-approval aspects.
We urge all stakeholders within the scope of this communication to read the following text and the herein indicated material, and to contact us on info@mccaa.org.mt for clarifications.

Objectives of this communication

to inform about Regulation (EU) 2019/26, which complements Union type-approval legislation with regard to Brexit
to inform about the updated (Readiness) Notice to stakeholders published by the European Commission, which is relevant to Brexit in what concerns automotive items
to briefly highlight the main type-approval related consequences of Brexit in what concerns automotive items
to briefly highlight the main Brexit induced type-approval related changes to legal obligations concerning automotive items applicable as from 1 January 2021, 00:00h CET
to provide indications on how to recognise relevant types of ‘automotive’ approvals granted by the United Kingdom
to briefly highlight certain type-approval related rules applicable in Northern Ireland as of the end of the transition period

Note

This communication does not apply to:

second-hand vehicles [3]
EU rules on road haulage [4]
EU rules on CO₂ emissions from passenger cars and light commercial vehicles [5]
any other area not within the aspects addressed in this communication (e.g., Customs regulations)

Stakeholders within the scope of this communication

This communication is relevant to all economic operators (i.e., importers, distributors, manufacturers, or manufacturer’s representatives), private individuals, organisations, associations, authorities, or other interested parties that deal in:

motor vehicles and their trailers within the scope of Regulation (EU) 2018/858 [6] (or within the scope of Directive 2007/46/EC [7],[8])
two- or three-wheel vehicles and quadricycles (motorcycles) within the scope of Regulation (EU) No 168/2013 [9]
agricultural and forestry vehicles (tractors) within the scope of Regulation (EU) No 167/2013 [10]
systems, components, and separate technical units, as well as parts and equipment, designed and constructed for such vehicles (including, as applicable, their trailers and interchangeable towed equipment)
internal combustion engines for non-road mobile machinery (NRMM) within the scope of Regulation (EU) 2016/1628 [11] or non-road mobile machinery in which such engines are installed

hereinafter collectively referred to as ‘automotive items’ or, when referring to any single unit, as ‘automotive item’.

Definitions for the purposes of this communication

Without prejudice to any existing and the additional definitions in applicable legislation or in relevant documentation, for the purposes of this communication:

‘Brexit’ means the withdrawal of the United Kingdom of Great Britain and Northern Ireland (‘United Kingdom’ or ‘UK’) from the European Union (‘EU’ or ‘Union’)
‘distributor’ means a dealer or any other natural or legal person in the supply chain, other than the manufacturer or the importer, who makes available on the market any automotive item
‘economic operator’ means the manufacturer, the manufacturer's representative, the importer, or the distributor
‘end of the transition period’ means 1 January 2021, 00:00h Central European Time (CET)
‘EU-27’ means the EU without the UK
‘importer’ means any natural or legal person established in the Union who places on the market any automotive item from a third country or that has been manufactured in a third country
‘making available on the market’ means any supply of any automotive item for distribution or use on the market in the course of a commercial activity, whether in return for payment or free of charge
‘Member State’ means a country member of the EU
‘placing on the market’ [12] means making available for the first time in the Union of any automotive item
'third country' means a country not member of the EU
‘UK type-approval’ means an EC type-approval or EU type-approval granted by the type-approval authority of the UK
‘UNECE approval’ means a type-approval of an automotive item granted according to specific Regulations (UN Regulations) developed by the United Nations Economic Commission for Europe (UNECE)
‘Union type-approval’ means an EC type-approval or EU type-approval granted by a Union type-approval authority
‘Union type-approval authority’ means a type-approval authority of a Member State other than the UK

Regulation (EU) 2019/26

Regulation (EU) 2019/26 [13] is Union legislation relevant to type-approval that specifically addresses issues arising from Brexit. It entered into force on 13 January 2019, is binding in its entirety, and directly applicable in all Member States, including Malta.

Regulation (EU) 2019/26 includes several provisions, amongst others, about the end of validity of UK type-approvals and about placing on the market, relevant to any automotive item thus far covered by and produced on the basis of a UK type-approval.

We urge all relevant stakeholders to read Regulation (EU) 2019/26 and to act accordingly, as necessary. Regulation (EU) 2019/26 may be accessed using this link.

Note

All provisions of Union type-approval legislation not derogated from in Regulation (EU) 2019/26 shall continue to apply.

Readiness Notice to Stakeholders - automotive items

The European Commission has replaced the previously notified Preparedness notices concerning automotive items, as well as the related Questions and Answers document, with a consolidated (Readiness) Notice to stakeholders (dated 14 July 2020).

This (Readiness) Notice to stakeholders concerning automotive items:

in Part A - reminds all interested parties, and especially economic operators, of the legal situation as of the end of the transition period
in Part B – explains certain relevant separation provisions of the Withdrawal Agreement, namely, concerning placing on the market, and provides important practical examples in that regard
in Part C – explains the rules applicable in Northern Ireland as of the end of the transition period

We urge all relevant stakeholders to read the updated and consolidated (Readiness) Notice to stakeholders concerning automotive items, which may be accessed using this link and to act accordingly, as necessary.

Note

The (Readiness) Notice to stakeholders uses throughout its content the terminology “motor vehicles” (see the first paragraph in its Part A) to refer to automotive items (as described and used in this communication).

General consequences of Brexit in what concerns automotive items

The following text, which aims to provide brief and simple general indications mainly intended for but not limited to stakeholders importing (importers) or distributing (distributors) automotive items in Malta, is without prejudice to Regulation (EU) 2019/26 and all other applicable legislation as well as to the indications in the aforementioned consolidated (Readiness) Notice to stakeholders of the European Commission, and is not a direct or exhaustive replacement of the contents of those documents.
All stakeholders, and especially those involved in activities not in the focus of this section (e.g., export of automotive items to the UK) or those interested in aspects not addressed in this communication (e.g., Customs regulations), are advised to refer to Regulation (EU) 2019/26 and other applicable legislation as well as to other material mentioned in this communication for more details.

The following text is also without prejudice to the Withdrawal Agreement and additionally, does not take into account the rules applicable in Northern Ireland as of the end of the transition period – refer to the dedicated section in this communication.

Moreover, the following text assumes that placing on the market always occurs before registration or entry into service.

The most pertinent to mention (for the purposes of this communication) consequences of Brexit, in what concerns automotive items, may be briefly summarised as follows:

after the end of the transition period, markings or labelling of goods placed on the Union market, which refer to bodies or persons established in the UK, will no longer comply with Union labelling requirements
after the end of the transition period, a manufacturer or importer established in the UK will no longer be considered as an economic operator established in the Union
after the end of the transition period, an economic operator established in the Union who, prior to the end of the transition period, was considered as an EU distributor of automotive items received from the UK, will become an importer for the purposes of Union type-approval legislation in relation to such automotive items and will have to comply with the more stringent obligations applicable to an importer, including the obligation to indicate his contact details on the product or its label
after the end of the transition period, manufacturers’ representatives established in the UK will no longer be considered as established in the Union and will lose their status for the purposes of Union type-approval legislation, regardless of when automotive items were placed on the market
after the end of the transition period, Union type-approval legislation no longer applies to the UK
after the end of the transition period, the type-approval authority of the UK will cease to be an EU type-approval authority for the purposes of Union type-approval legislation
after the end of the transition period, the type-approval authority of the UK will no longer be in a position to perform any of the functions and activities of an approval authority for the purposes of Union type-approval legislation
after the end of the transition period, the type-approval authority of the UK will no longer be able to issue revisions or extensions with respect to UK type approvals it had granted before the end of the transition period
as from the end of the transition period at the latest, UK type-approvals lose their validity for the purpose of placing on the market
manufacturers are to ensure that Union type-approvals required after the end of the transition period at the latest, are issued by a Union type-approval authority, and that vehicles are accompanied by a valid Certificate of Conformity (CoC)
(for the purpose of continuation) a manufacturer holding a UK type-approval that has not become invalid pursuant to Union type-approval legislation, may before the end of the transition period submit an application to a Union type-approval authority for a Union type-approval of the same type in accordance with Regulation (EU) 2019/26
when applying for a Union type-approval under Regulation (EU) 2019/26 according to the previous point, unless the manufacturer presents proof of an agreement with another Union type-approval authority for the same scope, the manufacturer shall also request the Union type-approval authority in question to take over the obligations of the UK type-approval authority with respect to all the manufacturer's other automotive items already placed on the market, registered, or entered into service in the Union on the basis of UK type-approvals granted after 1 January 2008 and that have either become invalid (for reasons other than Brexit), or for which no Union type-approval is sought under Regulation (EU) 2019/26
the granting of a Union type-approval in accordance with Regulation (EU) 2019/26 following the application mentioned in point 11. entails, amongst others, certain specific indications in the respective type-approval certificate and for vehicles, also in the Certificate of Conformity (CoC) – refer to Articles 5(4) and 5(6) of Regulation (EU) 2019/26 for details

Notes

Union type-approval legislation allows manufacturers the freedom to obtain type-approvals from any type-approval authority of the EU, and to appoint relevant representatives established anywhere in the EU. For example, until the end of the transition period, it is possible to place on the market an automotive item that was produced in Malta or, for example, in Italy or in Japan, on the basis of a UK type-approval. Similarly, until the end of the transition period, a manufacturer from, for example, China can have a representative or representatives established in the UK for the purpose of Union type-approval legislation.
Therefore, the consequences of Brexit, or more precisely, the indications in Regulation (EU) 2019/26 and in the aforementioned (Readiness) Notice to stakeholders, are not limited to manufacturers or automotive items from the UK, but may affect any economic operator, irrespective of whether the respective manufacturer of the automotive item is established in the UK, in the EU-27, or in a third country.
The manufacturer must immediately inform the relevant national type-approval and market surveillance authorities of any change concerning its single representative.
Stakeholders are reminded to take into consideration all other applicable legal changes due to Brexit.

Legally binding changes as from the end of the transition period

Moreover, the following text assumes that placing on the market always occurs before registration or entry into service.

In general:

as from the end of the transition period, automotive items covered by a UK type-approval cannot be placed on the Union market
as from the end of the transition period, automotive items that had been produced or that are produced on the basis of a UK type-approval cannot be placed on the Union market
as from the end of the transition period, vehicles accompanied by a Certificate of Conformity (CoC) referring to a UK type-approval cannot be placed on the Union market
as from the end of the transition period, an economic operator who places on the market any automotive item from the UK, becomes an importer for the purposes of Union type-approval legislation in relation to such automotive item and has to comply with all relevant obligations applicable to an importer, including the obligation to indicate his contact details on the product or its label
as from the end of the transition period at the latest, manufacturers established outside the Union must have representatives established in the EU-27 for the purpose of Union type-approval legislation, i.e., to represent them before the Member State type-approval authorities and for purposes of market surveillance
the manufacturer must immediately inform the relevant national type-approval and market surveillance authorities of any change concerning its single representative, whenever such change occurs
importers and distributors are to keep in mind that, as from the end of the transition period, every manufacturer’s representative for the purpose of Union type-approval legislation must be established in the EU-27
where applicable, for internal combustion engines for non-road mobile machinery, or for certain vehicles (agricultural and forestry) and non-road mobile machinery in which such engines are installed, the specific provisions indicated in Article 7 of Regulation (EU) 2019/26 apply
in accordance with Article 41 of the Withdrawal Agreement, concerning the continued circulation of goods placed on the market until reaching the end-user(s), an existing and individually identifiable automotive item lawfully placed on the EU-27 or UK market before the end of the transition period on the basis of a UK type-approval can be further made available on the market, registered, or entered into service in the EU-27 or in the UK after the end of the transition period, with no need for a new type-approval, re-labelling/re-marking, or product modifications, until it reaches its end-user
an economic operator relying on the previous point, i.e., on the provisions of Article 41 of the Withdrawal Agreement, bears the burden of proof of demonstrating, including for the purposes of market surveillance checks, on the basis of relevant (existing) documentation that the automotive item was placed on the market in the EU-27 or in the UK before the end of the transition period and simultaneously that it existed and was individually identifiable when placing on the market (after completion of its production) occurred
situations not considered as placing on the market include: pre-ordered goods, not yet manufactured (produced); contract for the supply of fungible goods (e.g., x units of product y, not individually identifiable); goods manufactured and held in the manufacturer’s stock, but not yet supplied for distribution, consumption or use; generic offer of a product on-line (including, amongst others, when the confirmation of a placed order has not yet been received by the ordering customer, such that the ready to be shipped specific good already manufactured and subject of the transaction, is identifiable)
manufacturers are to ensure that, as from the end of the transition period, any authorisation that may be required under Union type-approval legislation for the placing on the market and entry into service of a part or equipment, is sought from and issued by an approval authority in the EU-27

Notes

Without prejudice to other provisions in the Withdrawal Agreement, Union type-approval legislation will remain applicable to and in the UK during the transition period.
Without prejudice to other applicable rules, e.g., Customs regulations or Union labelling requirements, and without prejudice to any approval related provision or technical requirement, UNECE approvals granted by the UK do not automatically become invalid because of Brexit for the purpose of placing on the Union market.
Stakeholders are reminded to take into consideration all other applicable legal changes due to Brexit.

Recognising the type-approval number or type-approval mark pertaining to UK type-approval (EC type-approval or EU type-approval)

In general, a UK type-approval may be recognised from the type-approval number or from the type-approval mark; both of which include, amongst other requirements, the lower-case alphabetical letter ‘e’ followed by the number ‘11’ (eleven). Where required on components or separate technical units, a rectangle surrounds the marking ‘e11’, as shown in the example below.

Note

UNECE approvals granted by the UK may be recognised from the approval number or from the approval mark; both of which include, amongst other requirements, the capital letter 'E' followed by the number ‘11’ (eleven). Where required, the approval mark for UNECE approvals granted by the UK consists of a circle surrounding the marking ‘E11’.

Rules applicable in Northern Ireland as of the end of the transition period

The Withdrawal Agreement includes a Protocol on Ireland/Northern Ireland (hereinafter referred to as ‘IE/NI Protocol’) and references thereto, with rules applicable in Northern Ireland as of the end of the transition period. [14]

The IE/NI Protocol applies for an initial period extending to four years after the end of the transition period and its continued application following the initial period is subject to periodic consent of the Northern Ireland Legislative Assembly.
Consequently, any stakeholder relying on the provisions of the IE/NI protocol has the responsibility, and is advised, to follow related developments to ensure whether those provisions continue to be applicable and to act accordingly.

The following text, which is without prejudice to the contents of the Withdrawal Agreement and to the indications in the aforementioned (Readiness) Notice to stakeholders of the European Commission and in other material mentioned in this communication, is limited to only the most pertinent type-approval related information of a practical nature, which may be relevant to stakeholders importing (importers) or distributing (distributors) automotive items in Malta.
All stakeholders, and especially those involved in activities not necessarily considered in this section (e.g., export of automotive items to the UK, or trade in automotive items inside or with Northern Ireland) as well as those interested in aspects not addressed in this communication (e.g., Customs regulations), are advised to refer to the Withdrawal Agreement, the aforementioned (Readiness) Notice to stakeholders of the European Commission, and other material mentioned in this communication.

As long as the IE/NI Protocol or its relevant provisions apply:

automotive items placed on the market in Northern Ireland have to comply with Union type-approval legislation
automotive items manufactured (produced) in Northern Ireland and shipped to the EU-27 are not imported products
the importer may be established in Northern Ireland
the manufacturer’s representative may be established in Northern Ireland
certain type-approvals made applicable by the IE/NI Protocol - bearing the indication “UK(NI)” or "United Kingdom (Northern Ireland)" or equivalent numeric code [15], for Northern Ireland – as well as revisions or extensions to such approvals, are only valid in Northern Ireland but not valid in the EU-27

Other relevant reading material

Legally binding effects of Brexit as regards Union type-approval legislation

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