EU Construction Products Rules

he design and EU-wide marketing and distribution of construction products should soon become simpler. The EU’s Construction Products Directive has taken another step towards completion of the revision currently passing through the EU Institutions.
 
The Construction Products Directive is the legal framework under which EU-wide technical standards for construction products are written and applied. The Commission has proposed a revision of this Directive which aims to simplify and clarify how its rules are applied.
 
That proposal has taken another step forward with an agreement between the EU Member States on what they propose should be the text; this now goes back to the European Parliament for a “second reading”; after which Parliament and Member States will have to agree on the final text.

Background

The purpose of the Directive 89/106/EEC on construction products is to ensure the free movement of all construction products within the European Union by “harmonising” national laws (EU-speak for having national laws impose essentially the same requirements) with respect to the requirements applicable to these products in terms of health and safety.
 
The main changes set out in the Commission proposal to revise the Directive were: 
• Changing the legal act from a Directive to a Regulation. This would avoid differences between the legal texts adopted in the different Member States. 
• Setting “essential requirements” (characteristics of construction products to ensure that they are fit for their intended use) for construction products for use in construction works. Included under “essential requirements” would be: Mechanical resistance and stability, Safety in case of fire , Safety in use, Protection against noise, Energy saving and heat retention, Sustainable use of natural resources, and Protection of human health and the environment
• Introducing a precise definition of “construction products”. “Construction products” would mean “any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof so that the dismantling of the product decreases the performance of the construction works and the dismantling or replacement of the product constitute construction operations.”
• Introducing a clear and specific meaning for the CE marking for construction products. The CE marking would be the only marking that would attest to the conformity of a construction product with its declared performance.
• Outlining the obligations and responsibilities of economic operators as well as the “declaration of performance” (A declaration from the manufacturer or importer that the product is covered by harmonized standards and meets the standards that ensures they are fit for intended use) and conformity rules set out under the Decision on a common framework for the marketing of products. 
• Outlining rules on the accreditation of administrative bodies responsible for assessing the conformity of products with the requirements and market surveillance set out under the Regulation revising the "New Approach" for the marketing of products which aims to remove obstacles to the free circulation of products.

Compromise Text

The Commission published an amended proposal in October 2009 incorporating some of the amendments proposed by the European Parliament. Following lengthy discussions in Council expert groups under the Spanish Presidency a finalised text was submitted to the Council for agreement on 25 May 2010.
 
The draft revised text discussed by the Council introduced a number of changes to the Commission’s revised proposal from October 2009 including:
• Basic works requirements made the mandatory basis for the preparation of standardisation mandates and harmonised technical specifications. (Article 3).
• The requirement concerning declaration of performance and CE marking has been substantially amended. A declaration of performance becomes an obligation for the manufacturer. A new Article 4a was introduced with the derogations from drawing up a declaration of performance. 
• A list of the specific information that has to be contained in the Declaration of performance (Article 5).
• An obligation on the importer to inform the manufacturer and market surveillance authorities if a product presents a risk, and a requirement that construction products be accompanied by instructions and safety information in a language that can be easily understood by the users (Article 12).
• An obligation on importers to carry out sample testing of products and to investigate, and if necessary keep a register of, complaints and keep distributors informed of such monitoring. 
• The addition of “emissions of dangerous substances” to cases of essential characteristics where relevant harmonised technical specification is not required.

Agreement in Council

The political agreement was adopted only by qualified majority as a consensus could not be achieved between the Member States.
 
France, Germany Portugal and Austria and the UK supported the revised proposal pending future clarification of the new comitology procedures to be incorporated into the proposal.
 
Finland expressed concerns about the administrative burden for microenterprises in relation to the CE Marking and work requirements which Finland considered would lead to unnecessary costs. However, although Finland did not consider the proposal to be completely in line with 'better regulation' requirements it supported the compromise.
 
Despite agreeing to the proposal Austria considered that there were still problems with definitions that would create problems for SME's. Austria submitted a list of technical details in the proposal that it wanted to be clarified.
 
Sweden and Austria also submitted a joint declaration on chemical substances in construction products.
 
Poland and Bulgaria opposed the political agreement.
 
Bulgaria agreed with the Commission that Articles 3 - 5 of the compromise proposal did not meet the 'better regulation' requirements by not increasing transparency and making the rules more difficult to implement in practice.
 
Poland was critical that the requirement to supply a ‘declaration of performance’ had been made obligatory for manufacturers. The Polish delegation felt that changes would have a serious impact upon the competitiveness of SME's that would lead to the fragmentation the market.
 
The Commission did not consider the proposal to be in line with 'better regulation' requirements which aim to simplify existing legislation and reduce administrative burdens. The Commission considered that the changes to Articles 3 - 5 in the proposal would lead to unnecessary costs and increased administrative burdens for SME’s.

What’s next?

The Council will formally adopt its amended text or 'Common Position' in the next few months which will then be sent to the European Parliament for Second Reading. The Second Reading in the European Parliament can last up to four months. If the Parliament accepts the Councils’ Common Position’ without amendments the text can then be adopted. If the European Parliament makes amendments to the Common Position the text will be sent back to Council and possibly go to "conciliation", a negotiation between the two Institutions through which a final text for a law is agreed.