CE marking – Responsible Agents
I’ve had some creators reach out to me and ask about Responsible Agents in relation to CE marking, specifically paid Responsible Agents. As such I’ve tried to look into the subject and form some conclusions that might be helpful.
Firstly, to explain why you would need a Responsible Agent. CE marking, and the general regulations for selling in the EU anyway, require that you have a business address of a business in the EU on your box. Technically it requires that you have it on every single element of whatever’s in your box also, but that is left up to the individual producer to achieve as far as is practical. It also requires that you have the address of the ‘manufacturer’, slightly confusingly that’s whoever orders it to be manufactured, rather than the factory that physically makes it. If one address can do both of those things, then that’s great.
But what happens if your address as the ‘manufacturer’ is outside the EU? Not a problem, you simply put your address and the address of the importer who is shipping your goods into the EU. The logic behind the legislation is pretty clear, if something goes wrong, they want someone with a vested interest in the project to be traceable and answerable, and it’s a lot easier for the EU to make a business in the EU answer to their regulations than one outside of it. If an importer is shipping pallet loads of your product in the EU to the point where they are paying thousands in duty, either for themselves before selling your product on or on your behalf before shipping out to backers, clearly they have a real contracted relationship with you that the EU can then use if something goes wrong to make someone answer for the problem. The EU is fine with that importer’s address being on a stick on label, so if you’re outside the EU and shipping pallets into a fulfilment centre you can get a roll of sticky labels, put them on the box and be well within the requirements of the legislation. So far, so reasonable.
The issue becomes, what if you’re a business based outside the EU sending single packages into the EU direct to customers and backers? Well, that’s where it all gets a little hazy. In theory, whoever pays the duty on the package when it lands in the EU becomes your importer in that instance. So, for example, if you import a package from the US to the UK when it arrives in the UK the UK Post Office (the equivalent of USPS) pays the customs charge for you, then they send you a bill for that charge, plus £8-12 handling fee (which is why people in the EU really don’t like non-EU friendly shipping. For the record, although a package will not incur importing charges under a certain value, they will still incur VAT charges, and paying £8 handling fees for £2 of VAT charges on a £10 game is no fun at all). The payment of that customs charge makes the UK Post Office your importer for that package. Which means that what the legislation technically is asking you to do is to put the business address of the UK Post Office on all packages you send from the US to the UK, and Deutsche Post in Germany, Íslandspóstur for Iceland and so on. Let me say, I’ve received a lot of packages from the US and I’ve never once seen this happen. I’ve seen stick on labels of importers on retail shelves before, but never a label for a package imported direct from outside the EU.
This clearly puts designers based outside the EU shipping single packages into it in a tough position, they either do something frankly peculiar and excessive to comply with the legislation or technically put themselves in breach of the rules and in theory liable to a fine. Which is where the Responsible Agent pops up.
What is a Responsible Agent?
A Responsible Agent is a business in the EU somewhere who will allow you to put their address on the box of your game for a fee, supposedly to allow you to then circumvent the traceability legislation. Some of them will host your CE marking paperwork within the EU also, which is odd, because nothing at all says that your paperwork has to be in the EU to be valid, as though the paper bursts into flame if you take it to Boston.
Firstly, let me say, there is nothing in the CE marking or EU traceability legislation to allow for this system as an option. The legislation is clear, the creator’s address needs to be on the box and if that address is outside the EU whoever ships it into the EU’s address needs to be on the box. There is nothing to allow for a third party to take the place of either of those places. However, it is also true that as far as I can find there has not been a single case of this system being tested one way or another so I can’t say for absolute certain that it doesn’t work, but I can say that also no one can say for absolute certain that it does.
Bear in mind that these businesses tend to operate on a subscription basis rather than a single fee and if you do use them you will tied to their usage for the lifetime of your product, however long that happens to be. Also remember that in order for this scheme to work the registered company would have to be the established originator of the concept in question in the EU. I will say that I’ve not attempted to use one of these businesses so I don’t know if they just let that question slide, seeing how rarely the system is actually tested, but I would not casually hand up the right to origination of my intellectual property.
In short then, there’s no way of being certain whether these businesses work or not, however, it is certain that they charge for their services.
So, what should I do?
If you’re considering using a Responsible Agent I would strongly suggest that you take the money for their fee and spend it on exporting however many cartons of your game that you need to fulfil in the EU to a fulfilment company in the EU. This will not only allow you to save your backers from paying local postal service handling charges but it will actually allow you to fulfil the demands of the legislation. This is certainly the best practice option and the one I would strongly recommend, even if you’re not considering using a Responsible Agent. You’ll most likely find that shipping by sea to the EU and then fulfilling from there will equate to not far from the cost of shipping directly from outside the EU into it.
That said, shipping a single carton, or half a pallet or less into the EU is quite inefficient, its also either massively expensive or painfully slow and could be a very poor option for a Kickstarter that has failed to include the necessary time or for those that lack the capacity to organise the necessary logistics. For that reason, it is very tempting to simply send single packages direct into the EU and I will say that again, I’ve never come across a case of a non-EU business getting into difficulties by doing so. Ultimately, the purpose of the traceability legislation is to ensure that the responsible parties are traceable if something goes wrong. If you’re willing and able to make yourself available to any EU legislators that come calling despite not being in the EU you are relying on the understanding of the EU legislation, but the evidence is that they seem to show reasonable understanding in such cases.
In short, I can’t see any good reason to use a Responsible Agent company. You should use an official importer, but if that is not an option for you, the weight of probability seems to be on your side when shipping single packages into the EU.