Ensuring that products remain compliant with new versions of EU Directives and Harmonised Standards
03 Mar 2018
Author: Keith Armstrong
It is a very common misunderstanding that new versions of EU Directives, or of the harmonised standards listed under a Directive, only applies to newly-designed products; and that types of products which have already been 'first placed on the market' can continue to declare compliance with the old versions of Directives or harmonised standards that applied at that time.
But this is incorrect!
This misunderstanding assumes a process often called "grandfathering", in which products that have already been on sale when standards change don’t have to comply with the new versions of the standards. It has been commonplace in some industries for many decades, but no EU Directives have ever permitted grandfathering.
When EU Directives talk about "the first placing of a product on the Single Market" (or equivalent phrases, including "the first taking into service"), they use the word ‘product’ in a special way: to mean an individual unit of manufacture.
Of course, it is easy for us to think that they mean a type of product, because we often use that word in that way, for example when we say things like: “Company X has a wide range of products”.
But – like certain other commonplace words, such as ‘installation’ – EU Directives use the word ‘product’ in a special way, to have a specific legal meaning that is different from our colloquial use of that word.
The official EU reference to the special meaning of the word ‘product’, is in Clause 2.3 of the EU Blue Guide, http://ec.europa.eu/DocsRoom/documents/18027, which states (my yellow highlighting):
“As for ‘making available’, the concept of placing on the market refers to each individual product, not to a type of product, and whether it was manufactured as an individual unit or in series.
Consequently, even though a product model or type has been supplied before new Union harmonisation legislation laying down new mandatory requirements entered into force, individual units of the same model or type, which are placed on the market after the new requirements have become applicable, must comply with these new requirements.”
So, the word ‘product’ means (specifically in the context of complying with EU Directives) an individual unit of manufacture, regardless of its type, model, or design.
Let’s take an example: assume that we make a type of product (a 'model') called ABC, all of them 100% identical to each other, and we give each one that we make its own unique, individual serial number, starting with ABC001, followed in serial manufacture by ABC002, then ABC003, ABC004, and so on.
Then – for the purposes of complying with EU Directives – ABC001 is a different product from ABC002, which in turn would be a different product from ABC003, etc.,etc., .
If ABC001 and ABC002 were supplied in the EU on different dates, they would each have to comply individually with any different versions of Directives and harmonised standards that were in force on those different dates.
The European Commission (EC) has always assumed that manufacturers have to revisit the design of a product type every so often, for instance to fix bugs, replace components with different ones (due to obsolescence, or the availability of lower-cost equivalents), add new features, etc., etc., and they assumed that this generally happens at least once every 2 years.
You will surely have noticed that on any official sites about Directives and/or their listed harmonised standards, they always tell us:
a) What versions apply now;
b) At what date we can start to use the next versions, if we want to; and,
c) The date of the deadline from when the next versions must be used for compliance.
The period of time between b) and c) is often called the ‘changeover period’, and it is almost always at least two years. During the changeover period we have the choice of complying with the existing versions of the Directives and/or their listed harmonised standards, or the new ones.
After the end of the changeover period, every ‘product’ (i.e. individual unit of manufacture) that is placed on the Single Market for the first time has to comply with the new ones.
The EC's argument is that everyone should keep aware of future changes in the Directives and Standards that their products have to comply with, so that when the time comes to modify the design of a product type that is in serial manufacture, the manufacturer can at that time add in any extra requirements required to meet the new versions and start to comply with them during the changeover period.
Updating product compliance in this way avoids suffering a big rush to make many products comply with a new Directive or harmonised standard by the deadline. Of course, if we have a lot of excess stock sitting in a warehouse, we have to take care that its EU compliance does not become obsolete because of changes in Directives and/or their listed harmonised standards since they were made.
Remember, it’s the date on which the individual products are first supplied – i.e. first ‘made available’ to customers in the EU – which matters. Not the date of the product’s manufacture.
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