Do not worry about Scottish devolution. . . It will still be business as usual for CE Marking

On 18 September 2014, Scotland will go to the polls to decide whether its future lies as part of the United Kingdom (UK) or as an independent state. If the Scottish people vote in favour of independence, then it is planned for Scotland to become an independent country on 24 March 2016. In the event of a vote of “yes” to independence, what will happen to CE marking and the implementation of the European Union (EU) safety directives such as the ATEX directive? The detail of the answer may depend on whether Scotland is a member of the EU or not. Whilst this is the source of much debate, let us assume, for argument’s sake and for the purposes of this article, that Scotland is not a member of the EU on Independence Day.

In respect of application of the ATEX directive it is worth remembering that none of us are directly subject to any EU directive. To be enforced, an EU directive must be enacted into local and national legislation. Currently, health and safety legislation governing the use of all industrial workplace equipment (including Low Voltage, Machinery and ATEX directives) is the same across all of the United Kingdom apart from Northern Ireland. The only major difference between Scotland, and England and Wales is that it is the Procurator Fiscal Service (COPFS) that is responsible for prosecutions in Scotland rather than the Health and Safety Executive. When considering this safety legislation, a newly independent Scotland would be able to draw upon the experience of its own long established legal system which in many legal situations already operates independently of the laws of England and Wales. It would therefore be reasonably easy, as well as a high priority, to implement a mirror package of the current UK health and safety legislation. As an aspiring member of the EU the compatibility of this new safety legislation with EU directives would obviously be critical. Utilising EU directives as the basis for national legislation is a requirement for aspirant EU members. For example, Turkey has implemented almost all of the EU directives into its national legislation. There would thus very likely be an ATEX product directive implementation within an independent Scotland which is similar to that existing today.

Free trade between nations was one of the founding principles of the EU. Our assumption is that a newly independent Scotland would be outside of this free trade area. Therefore, any Scottish manufacturers that wanted to export to the 28 member states of the EU, including the remnant UK, would have the trading status that many non-EU countries have today. In fact, the rules for CE marking under ATEX (and the other industrial safety directives) apply to all equipment used within the EU regardless of the country of origin. The main difference for non-EU manufacturers is that they need a local authorised representative or importer to hold the CE technical files and take responsibility for the equipment within the EU. In reality, finding a local representative shouldn’t present a problem to a country with so many cross-border links to the remnant UK even though there would undoubtedly be a new cost associated with this.

An independent Scotland outside of the EU would probably not have its own Notified Bodies, certainly in the early days of independence. Therefore for ATEX Notified Body services, manufacturers would still need to use Notified Bodies in the remnant UK or other parts of the EU as they do currently. Therefore the impact here would be small.

The final aspect that might affect Scottish industry is loss of influence on regional and international standards and conformity assessment bodies. The UK has a prominent position in international standardisation through ISO and IEC and international conformity assessment (specifically the IECEx System for EX equipment). An independent Scotland would lose direct access to these forums until such time as it was received into the ISO, IEC and IECEx. Whilst in time there may be a new standard’s writing body established in Scotland it would, by virtue of size, not have the same privileges afforded to the UK today. There would also be a new cost falling mostly on industry for establishing the standardisation and conformity assessment committee structures and frameworks that the UK already enjoys. Whilst not insurmountable, industry would see a net loss in direct influence and would need to call upon partners in the remnant UK or other EU countries to represent Scottish interest at international level.

If Scotland were to migrate to its own EU membership by March 2016, some of the minor export inconveniences would disappear. However, whatever the status of EU membership then, as you can see there would be very little technical difference to the current implementation and use of the ATEX directive in an independent Scotland. The main differences are likely to be the new cost of directly supporting the directive, international standardisation and the conformity assessment infrastructure.

 

July 2014