I have been examining the question of EU27 market access in the event of No Deal for manufacturers of products which are certified by UK Notified Bodies. In this article I first describe the role of Notified Bodies in the Construction Products Regulation (CPR), and identify prominent UK NBs through a search for Certificates and Declarations of Performance. Having found more products certified by Warringtonfire than any other UK NB, I examine the steps taken by its parent Element Materials Technology Ltd to ensure continued EU27 market access in the event of a No Deal Brexit for the three UK construction product NBs that it owns. I show that the Notified Body activities of Element’s new Dutch NB will continue to be undertaken primarily at Warringtonfire’s laboratory. Taking the products found in the search as examples, I check the scope of Element’s new Dutch Notified Body to ascertain whether it should be possible for manufacturers to transfer their Notified Body to the Netherlands in what is essentially an administrative process.
Background: the role of Notified Bodies in the CPR
The Construction Products Regulation 305/2011 differs from most if not all other EU product safety legislation in that the focus is not on setting performance levels for products, these being set instead to a large degree at the national level. Instead, the CPR establishes harmonised levels on how performance levels are to be expressed, making it easier to determine whether a product produced in one member state meets the requirements of another:
To put it another way, the idea is that the member states should all be speaking the same language, as it were, which is indeed how the Commission express the concept:
There are nevertheless certain Basic Requirements which have to be met, which are defined in Annex I. The first requirement, that buildings should not collapse, can hardly have been a matter of contention among member states:
In the event of fire, a construction should maintain its load-bearing capacity for ‘a specific period of time’, but it is for member states to determine what that period should be:
Where a construction product is covered by a harmonised standard (or a European Technical Assessment has been issued for it) the manufacturer shall draw up a Declaration of Performance:
whose format is specified in Annex III:
The DoP must contain a list of one or more essential characteristics of the product, along with the declared performance in relation to that characteristic, and a reference to the relevant harmonised standard or European Technical Assessment (ETA, of which more below):
Thus, for example, a DoP issued by a Belgian subsidiary of the American company Stanley Black and Decker for steel nails for timber products:
declares performance levels for four mechanical parameters, along with a reference to the relevant clause of EN 14592:2008 (plus 2012 amendments) ‘Timber Structures – Dowel-Type fasteners – Requirements’, with references also to standards for test methods employed:
The CPR sets out alternative systems for assessing products and verifying the constancy of their performance. All but System 4 require the involvement of a Notified Body (or Technical Assessment Body, of which more below). Under System 3, for example, the manufacturer carries out factory production control, while a Notified Body examines the product type:
whereas under System 4 there are no tasks for the notified body to perform:
The System required for each product type is laid down in Annex ZA.2 of the relevant harmonised standard:
My impression from searching for DoPs issued under the CPR is that the majority of construction products require notified body involvement. To take one example, the above mentioned DoP for timber nails shows that they are assessed under System 3, and identifies the Notified Body as the UK company BM TRADA (NB 2389) now part of Element, and having its origins in the Timber Research and Development Association:
A DoP for a floor gully:
on the other hand, provides an example of a product which can be assessed by System 4, with no Notified Body involvement:
European Technical Assessments
Where a product is not fully covered by harmonised standards, manufacturers can, if they choose, attempt to get CE marking for it by means of a European Technical Assessment (ETA), which is undertaken for their specific product by a Technical Assessment Body (TAB) on the basis of a European Assessment Document (EAD) or a European Technical Approval Guideline (ETAG), the latter being currently converted into EADs.
It is clear from Article 30(1) of the CPR and Table 2 of its Annex IV that TABs have to be located in a Member State. UK TABs would therefore lose their designated status in the event of a No Deal Brexit in a similar way to UK NBs.
It seems from Annex III of the CPR that ANNEX V tasks are to be carried out by a Technical Assessment Body rather than by a Notified Body where the product is being assessed to a European Assessment Document (EAD) rather than a harmonised standard:
and likewise any required certificate or documentation is to be issued by the TAB:
Whereas the European Commission have stated (probably mistakenly in my view) that existing certificates issued by UK Notified Bodies will lose their validity in the event of a No Deal Brexit, they do not appear to have made any equivalent pronouncement about existing certificates issued by TABs. It seems reasonable to suppose, however, that objections might well be raised by national EU27 authorities to CE marked products carrying certificates issued by bodies that had lost their TAB status.
To retain market access in such circumstances, the manufacturer would, as I understand it, have to remove the CE mark from the product or packaging.
UK Construction Products Notified Bodies
There are 51 UK Construction Products Notified Bodies, making it time-consuming to investigate the Brexit preparations of each one. I therefore carried out two Google searches:
Declaration + of + Performance + 305/2011
Notified + Body + 305/2011
in an attempt to identify the most commonly used NBs, yielding the following results:
ERA Home Security, UK. Warrington Certification 1121.
Graham & Brown, UK. Warringtonfire 0833.
Fireco, UK. Warrington Certification 1121.
Kentec, UK. BSI 0086.
DeWalt, Belgium. TRADA 2389.
Tata Steel, UK. Lloyds Register 0038.
Kingspan, UK. University of Salford 1145; B.I.T.S. 1334; Exova 1104.
Muraspec, UK. Warrington Certification 1121.
Fike Safety, UK. LPCB 0832.
British Steel, UK. Lloyds Register 0038.
Hodgson Sealants, UK. 4Ward Testing 2538.
St Gobain, UK. (CCP) BSI 0086.
Honeywell Analytics, USA. LPCB 0832.
Icopal, UK. BSI 0086.
Selectrite Hardware, UK. Element 1104.
Building Adhesives, UK. Lucideon 1289.
Excel Networking, UK. BASEC 2661.
FischerWerke, Germany. Warrington Certification 1121.
Rutland UK, UK. CEM International 1942.
Lanarkshire Welding, UK. Steel Construction Certification Scheme 2273.
Kidde Safety, UK. UL UK 0843.
Tremco Illbruck, UK. UL UK 0843.
McCalls Special Products, UK. BBA 0836.
Forterra Building Products, UK. Construction Products Certification 1333.
The searches identified four companies employing Warrington Certification 1121 as their Notified Body, three BSI 0086, two each Element (/Exova) 1104, Lloyds Register 0038, LPCB 0832 and UL UK 0843, and one each Warringtonfire 0833, TRADA 2389, University of Salford 1145, B.I.T.S, 4Ward Testing 2538, Lucideon 1289, CEM International 1942, Steel Construction Certification Scheme 2273, BBA 0836 and Construction Products Certification 1333. Warrington Certification 1121 and Warringtonfire 0833 appear to be essentially the same operation, with the same name ‘Warringtonfire Testing and Certification Limited’ and physical address in Warrington shown on NANDO, and both web addresses re-routing to the same page. TRADA 2389, shown on NANDO as ‘TRADA Technology Limited trading as BM TRADA’ with an expired web domain seems to be essentially the same operation as Notified Body 1224 ‘Warringtonfire Testing and Certification Limited, trading as BM TRADA’, with the same address in High Wycombe.
In this article I examine the four Notified Bodies, numbers 1121, 0833, 2389, and 1104, that are owned by Element. Of these I consider the first three first, these being all listed on NANDO under the Warringtonfire name, and corresponding to two facilities, which Element now call Element Warrington and Element High Wycombe. Element have at the same time retained Warringtonfire as a brand name, with its own web-site, where it is confirmed that both the Warrington and High Wycombe laboratories fall under its aegis:
Warringtonfire Testing and Certification Limited
Warringtonfire Testing and Certification Limited still exists as a company, but is owned or at least controlled by, in turn, Warrington Fire and Building Products Uk Limited, Exova Group (UK) Limited, Exova Treasury Limited, Exova 2014 Limited, Exova Group Limited, Greenrock Bidco Limited, Greenrock Midco Limited, Greenrock Topco Limited, Emt 2 Holdings Limited, and Element Materials Technology Limited.
A Brexit Update of 13 February 2019 explained that the company had been engaged with the Dutch accreditation agency RvA for over a year, in order that what it says is its parent company ‘Element Materials Technology Rotterdam B.V.’, a Dutch subsidiary of the London headquartered Element 1, could receive accreditation for tasks under the CPR:
Accreditation was granted in January 2019:
The Update states that the company does not expect any decrease in operational or technical capacity at their UK locations:
and of four locations listed in the Dutch accreditation schedule only one, the Head Office, is in the Netherlands, the rest being in the UK:
The Skelmersdale address is that of Element Skelmersdale ATEX Centre, notified under the ATEX Directive only, while the Warrington address is that of Element Warrington (Warringtonfire’s primary site), and the High Wycombe address is that of Element High Wycombe (BM TRADA), both notified for CPR tasks.
The 13 February Update went on to announce that Element had obtained Notified status in the Netherlands:
and the new Body’s listing on NANDO shows that it is notified under the CPR as well as the ATEX Directive:
Element state that in the event of No Deal on 31 October 2019, they will be able to issue, or re-issue certificates from their Dutch office:
A search for such certificates yielded no results, however, suggesting that Element has not been migrating certificates to the EU27 in any numbers so far.
and for two tasks only:
Element’s new Dutch Notified Body does not list the Wednesbury site among the locations where activities are performed in its Dutch accreditation schedule, nor does the scope of its notification include the tasks that the Wednesbury facility is notified to perform.
The same two Notified Body tasks are also shown on Element Wednesbury’s UKAS accreditation schedule of December 2018:
but they stand alongside many other non-Notified testing activities, extending to 17 pages of the schedule, for which the facility is accredited. It seems possible that Element is either discontinuing its Notified Body activity at the site, or has decided to discontinue it in the event that the facility loses its notified status because of Brexit.
The DoP, dated 2013, for Selectrite’s fire door coordinator (which ensures that a pair of double doors always close in the correct sequence) gives Element 1104 as the Notified Body, and states that it has been assessed under System 1:
and that the relevant harmonised technical specification is EN 1158:1997+A1:2002:
Element 1104 is and was notified only for System 3 tasks, and only to EN 1324-1 and EN 14351-1, as shown above.
The DoP appears to be in error or out of date. The Certificate of constancy of performance, which is listed on the same page of the manufacturer’s web-site:
was issued not by Element Wednesbury but by Warrington Certification (Element Warrington) in May 2016:
and Element’s Warrington operation is notified for System 1 assessment to EN 1158:1997+A1:2002:
as is Element’s new Dutch Notified Body (2812):
It seems probably, therefore, that it is in fact Element Warrington that is performing the Notified Body tasks for Selectrite’s product. Since these tasks are also within the notified scope of Element Netherlands there is no apparent obstacle to migrating the Certificate to the Netherlands in the event of No Deal, or indeed beforehand as a precautionary measure, to enable continuity of access to the EU27 market.
The second DoP among the search results above that listed Element (/Exova) 1104 as a Notified Body was issued by Kingspan in January 2016 for its rainscreen cladding insulation product Kooltherm K15:
Element 1104 (Exova having been acquired by Element in 2017) is one of three Notified Bodies listed in the DoP. The relevant harmonised standard is BS EN 13166:2012+A2:2016. But this is not one of the two standards under which Element Wednesbury 1104 is notified to perform tasks (as shown also above), and it is hard to see in any case why a facility notified for testing doors and windows would be involved in testing an insulation product:
The University of Salford NB 1145, however, is notified to perform tasks under BS EN 13166:2012+A2:2016:
as also is the second notified body listed by Kingspan, B.I.T.S. NB 1334:
(although with apparently no web-site and only one remaining officer after resignations in August 2019, it seems doubtful whether the company is still operational.) It seems probable therefore that it is the University of Salford that is performing the Notified Body tasks for Kingspan’s product.
I conclude that Element 1104 was probably incorrectly listed on both DoPs, leaving no results found for this Notified Body. This is consistent with the explanation offered above for Element’s Wednesbury facility not being listed among the locations of Element Netherlands’ accredited activities. The purpose of Element Netherlands is to retain notified status for the Element’s notified body operations, and these are probably at a low level or discontinued at Wednesbury.
Are the products within Element Netherland’s scope of notification?
24 construction products were found whose access to the EU market is currently dependent on involvement by a UK Notified Body. Warringtonfire (Element Warrington) was involved with at least five, and probably six of these products, and BM TRADA (Element High Wycombe) with one of them, accounting for either 6 or 7, that is one quarter or more, of the products. The seven products by manufacturer and their relevant harmonised technical specifications are as follows. In each case, I attempt to determine whether the product falls within the scope of Element’s new Dutch operation.
1) ERA Home Security, UK. Warrington Certification 1121. Mortice lock. System 1. EN 12209:2003.
The scope of the existing Notified Body (1121) for this product family, which includes ‘building hardware related to doors’:
is identical to that of the new Dutch Notified Body (2812):
and includes assessing products to the relevant standard EN 12209:2003 under System 1 as required.
2) Graham & Brown, UK. Warringtonfire 0833. Wallcovering. System 3. EN 15102+A1:2011.
The existing certificate is of doubtful validity because Warringtonfire NB 0833 is not notified for tasks under EN 15102. Warringtonfire NB 1121 (the same laboratory), however, is notified to EN 15102 for ‘wall… coverings in roll form’, but only to System 1:
as also is Element Netherlands 2812:
It seems possible that both the NB number and the assessment system are wrongly stated in the DoP. There should I think be no difficulty in migrating the certificate to the Netherlands if necessary once these details are corrected.
3) Muraspec, UK. Warrington Certification 1121. Wallcovering. System 1. EN 15102+A1:2011.
The product type and relevant harmonised standard are the same as for Graham & Brown’s product above. In this case, the DoP appears to be correct, since Warrington Certification 1121 is notified to perform System 1 assessment to this standard, as shown above, as also is Element Netherlands, allowing for transfer to it of the Notified Body tasks.
4) Fireco, UK. Warrington Certification 1121. Fire door retainer. System 1. EN 1155:1997+A1:2002.
The scope of NB 1121 for this product family:
and of NB 2812 is identical, and includes the stated System and standard:
allowing for migration of the certificate without apparent obstacle.
The product carries a European Technical Assessment for the product, on the basis of technical specification ETAG 26-02:
Warringtonfire is accredited by UKAS to carry out Notified Body System 1 assessments of fire sealing products designed to ETAG 026-2):
Warringtonfire is listed as a TAB as well as a Notified Body, as also is BM TRADA (Element HIgh Wycombe):
It seems to me that even though this Certificate of constancy of performance carries Warrington Certification’s Notified Body number, it has actually been issued to FischerWerke under its status as a Technical Assessment Body, rather than as an NB:
and therefore covers FischerWerke’s pipe wrap product.
Element’s Dutch company, however, is not listed as a TAB in the Netherlands:
with the result that this certificate could not be transferred to Element Netherlands. In the event of a No Deal Brexit, FischerWerke would I think have to either transfer its ETA (perhaps involving re-assessment) and accompanying ongoing assessment tasks and certification to an EU27 TAB, or remove the CE mark from the product.
6) Selectrite. Door coordinator. System 1. EN 1158:1997+A1:2002.
As explained above, the Notified Body is stated on the DoP is stated to be Element 1104 (Wednesbury), but probably mistakenly, since the CCP is issued by Element 1121 (Warrington). Also as shown above, the product lies within the scope of Element 2812 (Netherlands), and migration should be feasible.
7) DeWalt, Belgium. TRADA 2389. DoP, May 2013. Timber nails. System 3. EN 14592:2008+A1:2012.
BM TRADA at High Wycombe has the requisite notification for System 3 assessment of fasteners (including nails) for structural timber products to EN 14592:2008+A1:2012, this being indeed the only task for which it is notified:
It is not however currently accredited by UKAS for product certification to this standard.
Element 2812 (Netherlands) is neither accredited for product certification to this standard, nor notified for tasks under it. It appears, therefore, that DeWalt would not be able to transfer the System 3 notified body tasks for this product to Element’s Dutch operation.
Would migration be possible for other products?
Element Netherlands has Dutch accreditation for activities carried out at BM TRADA (Element High Wycombe) and Warringtonfire (Element Warrington), but is not notified for the only task for which BM TRADA is notified. Element Netherlands appears to be notified for more tasks than is Warringtonfire, but nevertheless lacks notification for a few tasks for which Warringtonfire is notified. It may be that these are tasks which Element has decided to discontinue, for one reason or another. Thus, for example, Element Netherlands lacks Warringtonfire’s notification for membranes:
But I have been unable to find any DoPs or certificates issued under any of these standards with Warringtonfire as the Notified Body, suggesting that it may not be an important area of work for them.
- Element Warrington accounts for a considerable proportion of UK construction products notified body activity.
- The Notified Body tasks carried out by Element Netherlands will continue to be carried out primarily at Element Warrington.
- In consequence, Element Netherlands is notified for broadly the same products as is Element Warrington, allowing for a transfer to the latter in the event of a No Deal Brexit.
- The single task for which Element HIgh Wycombe is notified is not within the scope of Element Netherlands.
- The two tasks for which Element Wednesbury is notified are likewise not within the scope of Element Netherlands.
- Element Netherlands has not been designated as a TAB, with the consequence that TAB tasks currently performed by Element Warrington and Element High Wycombe could not be transferred to the Netherlands.
- Of the seven products found which are currently certified by Element in the UK, five could probably be transferred to Element Netherlands in the event of No Deal.
- As it happens, both the products which could apparently not be transferred to the Netherlands and which could therefore encounter difficulty in retaining access to the EU27 market, are manufactured in the EU27.