Brexit and imported boats

Several people in Ireland have imported secondhand boats from Foreign Parts, often from the Netherlands or the United Kingdom. After Brexit, importation of a boat from the UK is likely to become more difficult.

Dr Richard North, an erudite Brexiteer, has highlighted the problem today. Within the European Economic Area (which includes the European Union)

Basically, a huge range of products, before they can be placed on the market, must be approved in a manner specified in the relevant legislation. Conformity then guarantees access to the markets of the EEA members (EU members plus the three Efta/EEA members). […]

In the first instance – intra-Union trade – the responsibility for ensuring that products conform with the legislation rests with the manufacturers. And, where the legislation requires it (as it does with a wide range of goods), it must be tested by an independent third party, known as a “notified body”. And, with certain exceptions, that notified body must be established in the EU and be recognised the European Commission.

Currently, of course, the UK is able to benefit from the intra-Union trade rules but, on leaving the EU, it will no longer enjoy what amounts to a simplified procedure. It is then that the UK becomes a “third country” and the legal responsibilities accruing to those placing products on the market move from the manufacturers to the “importer“, defined as “any natural or legal person established within the Community who places a product from a third country on the Community market”. (For “Community” you can now read “Union”.)

When products from third counties arrive at EU Member State ports, it is then for the importer to satisfy the customs and any other authorities that the products comply with EU law, and have the necessary approvals or certification – including type-approvals from notified bodies, where necessary.

Currently, there are over 25 categories of goods to which the CE marking system applies, for which a Notified Body certificate may be required. These include: […] recreational craft […].

For the UK on and after Brexit day, this gets quite interesting. Where the product relies on certification from a UK notified body (approved prior to Brexit), that notified body will no longer be approved. Arguably (and it is arguable), the certificates (on which the importer will rely) will no longer be valid.

The requirements of the 2013 Recreational Craft Directive are set out here [PDF]. Section 3.6, on page 21, says:

The private importer is a concept that did not exist under the previous Directive and that was added to ensure that private individuals importing a boat, a personal watercraft, an engine or any other product covered by the Directive are granted the same level of protection and obligation as commercial importers. The private importer is defined as any natural or legal person established in the European Union who imports in the course of a non-commercial activity a product from a third country into the EU with the intention of putting it into service for his own use.

A private importer, who imports a product for his own use in European waters, must also ensure the craft, engine or components are compliant with the EU Directive.

Article 12 provides the detailed list of the private importer’s obligations. As a start, we recommend that private importers favour products for which the original manufacturer has fulfilled his responsibilities for the conformity of the product with the EU Directive. Not only will it save a lot of time and hassle for the private importer, it guarantees he/she will acquire a safe and compliant product, thereby ensuring a higher resale value in Europe.

In the event that the original manufacturer located outside of the EU has not fulfilled his responsibilities nor carried out the conformity assessment procedures, the private importer must ensure, before putting the product into service, i.e. using it, that:

• The product has been designed and manufactured in a way that meets the essential requirements of the EU Directive
• The following requirements for manufacturers have been carried out: the technical documentation has been drawn out and must be kept for 10 years; the product is accompanied by instructions and safety information in the owner’s manual in a language or languages which can be easily understood by consumers and other end users, as determined by the Member State concerned (i.e. the country of residence)
• The private importer must cooperate with the competent national authority and provide all information and documentation necessary to demonstrate the product’s conformity.

In case the technical documentation is not available from the manufacturer, the private importer will have to draw it up using the appropriate expertise. Annex V of the Directive provides the details of the postconstruction assessment (PCA). This module is the procedure to assess the equivalent conformity of a product for which the manufacturer has not assumed the responsibility but also in cases where the importer or the distributor places a product on the market under his name or trademark, or modifies a product already placed on the market in such a way that compliance with the Directive’s requirements may be affected. The private importer must ensure that the name and address of the notified body which has carried out the post-construction assessment (PCA) of the product is marked on the product itself.

For more information about the PCA see the “Special Cases” section.