We sent our questions about Brexit and the Made in Britain mark to Johannes Ungerer (left), lecturer in German and EU law at the University of Oxford and this is his academic opinion
FOLLOWING the end of the Brexit transition period, British products can continue to use the collective trademark 'Made in Britain' as licensed. Regardless of the political changes, this uniquely designed and protected label confirms British provenance and product quality, even if some components originate from outside Britain. In addition to the explanations of the legal basics, the following Q&A will give an update on the situation from 1 January 2021 onwards, with a special focus on exports to the EU.
What has changed due to Brexit?
The UK left the EU on 31 January 2020. During the subsequent transition period until 31 December 2020, the UK mainly continued to follow EU rules. However, from 2021 onwards, Great Britain is not part of the EU Single Market anymore (in contrast to Northern Ireland). As a consequence of having left the customs union, British exports into the EU have to follow new rules. In particular, customs procedures and formalities now apply for trade between Great Britain and the EU.
Which new rules apply to British products?
The UK and the EU have concluded a new Trade and Cooperation Agreement, which has been applicable since 1 January 2021 and establishes preferential arrangements such as for the trade in goods. While this does not compare with the ease of trading across European borders as it was when the UK was a member state, the new agreement still provides for zero tariffs and zero quotas on all goods that comply with the framework for the rules of origin. These are checked by customs controls now.
How can British businesses be prepared?
Given the changes in the legal framework, it will be more important to be sure about the conditions for using the 'Made in Britain' labelling. Brexit has not affected the substantive conditions in principle, but European authorities and trade partners will ask for verification of the economic origin of imports more frequently and more carefully than during the time while the UK was part of the Single Market. This is particularly relevant where some parts or components of an overall British product are of foreign origin. Therefore, British businesses should be able to produce satisfactory documentation of the British economic origin of their products. In turn, British products must neither be labelled as ‘EU’ origin nor use the EU emblem from 1 January 2021.
How is British economic origin determined in relation to the EU?
'Made in Britain' is country-of-origin labelling and must continue to comply with the expectation that the economic origin of the product is Great Britain, at least to a sufficient extent, so that customers are not misled. The legal basics are explained here.
The economic origin can be determined in analogy to rules of origin, which are regulated in the new Trade and Cooperation Agreement. Rules of origin are used for tariffs and similar customs matters. However, this is an analogy and not the only way to determine economic origin for labelling purposes because, for instance, the standard market practices and expectations of the importing country have to be obeyed as well.
According to the new agreement, products are of British origin if they are wholly obtained or exclusively produced in Britain from British originating materials. Yet fortunately, the agreement also provides for bilateral cumulation of European and British parts. It means that a product originating in the EU shall be considered as originating in Britain if that product is used as a material in the production of another product in Britain. Production carried out in the EU on a non-originating material may also be taken into account for the purpose of determining whether the product is originating in Britain. However, diagonal cumulation is not permitted between the EU and the UK, so that components from third countries do not count as if they were made in the UK or EU.
The agreement also includes a chapter that addresses regulatory barriers to trade between the UK and EU. It allows both sides regulatory freedom in line with World Trade Organisation standards. Therefore, both the UK and the EU can adopt further regulations, for instance on mandatory product labelling. There are already some mandatory labelling schemes set out by individual member states of the EU, but they are not believed to have changed due to Brexit. Still, British exporting businesses should take extra care to observe them as the pre-existing rules may be more rigidly enforced, and due attention will have to be paid to any amendments.
This academic opinion outlines selected broad parameters for general information only. It cannot replace individual comprehensive advice by legal practitioners, whom you should contact about any specific questions regarding your circumstances.