Explanatory Memorandum to COM(2008)311 - Harmonised conditions for the marketing of the construction products - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)311 - Harmonised conditions for the marketing of the construction products. |
|---|---|
| source | COM(2008)311  |
| date | 23-05-2008 |
Contents
- Context of the proposal
- Legal elements of the proposal
- 1.1. Grounds for and objectives of the proposal
- 1.2. Consistency with other policies and objectives of the Union
- 2. Consultation of interested parties and impact assessment
- 2.1. Consultation methods and general profile of the respondents
- 2.2. Impact assessment of policy alternatives
- Option 1 - No EU action: no change
- Option 2 - No legislation
- Option 3 - Revision of the CPD: the preferred option
- 3. Addressing the identified problems
- 3.1. Clarification needs
- 3.2. Reinforcing the credibility of the system
- 3.3. Simplification needs
- 3.3.1. Measures of general application
- Methods intended to reduce the cost of testing
- 3.3.2. Measures of specific application
- Treatment of micro-enterprises
- 3.3.3. European Technical Assessment (ETA) system
- 4.1. Summary of the proposed action
- 4.2. Legal basis
- 4.3. Subsidiarity
- 4.4. Proportionality principle
The objective of the Construction Products Directive (89/106/EEC) i, referred to hereafter as the CPD, is to ensure free circulation and use of construction products in the Internal Market.
In October 2005, the Commission launched a three year rolling programme for simplification as part of its Better Regulation: Simplification Strategy i. The aim is to make legislation less burdensome, easier to apply and thus more effective, while also preserving EU policy objectives. This includes considering whether the approach originally chosen is the most effective one for meeting the objectives of the legislation. Simplification of the CPD is one of the initiatives under this Strategy, with the aim being “to clarify and reduce the administrative burden of the CPD, in particular for SMEs, through increased flexibility in the formulation and use of technical specifications, lighter certification rules, and the elimination of the implementation obstacles that so far have hampered the creation of a full internal market for construction products” i.
Construction products are intermediate products intended to be incorporated in construction works. The concepts of safety or general interest thus apply to construction products only to the extent to which they contribute to the fulfilment of the requirements of the works in which they are to be incorporated.
The New Approach is not the appropriate legislative technique for achieving the objective of ensuring free circulation and use of the construction products. However, in the proposed Regulation, the New Legal Framework, as defined by the package on the internal market for goods i, is followed in areas such as the criteria for notification of bodies carrying out third party tasks in the process of attestation of declared performance, or market surveillance provisions.
In this context, the meaning of the CE marking defined in this proposal is specific for construction products: it attests that the information accompanying the product has been obtained in accordance with the proposed Regulation and, therefore, must be considered accurate and reliable.
Other specificities for construction products, which necessitate deviation from the New Legal Framework, include the systems of attestation of declared performance; the modules proposed in the New Legal Framework could not be applied without substantial adaptation for this sector. However, some slight modifications are proposed to the systems currently in force under the CPD.
In short, the objective of the Regulation is not to define the safety of the products, but to ensure that reliable information is presented in relation to their performances. This is achieved by providing a common technical language to be used by manufacturers when placing products on the market and by public authorities when defining the technical requirements of works which influence, either directly or indirectly, the products to be used in those works. This common technical language is set out in the harmonised technical specifications (harmonised European standards (hEN) and European Assessment Documents (EAD)) developed under this Regulation.
The basic works requirements (BWR) are proposed to comprise the national and European regulatory requirements for construction works. The common technical language of the harmonised technical specifications is to provide the necessary tools for describing and assessing the required characteristics of the construction products; its use should therefore enable the national authorities to carry out all the necessary checks on the products in question, as well as the constructors to utilise them in the most appropriate and efficient manner. When the performances of products are set out by Member States authorities or declared by manufacturers, this is to be done through this common technical language.
The general policy objective and the more specific/operational objectives pursued by the CPD revision are not only fully consistent with several of the basic Community policies, such as the Lisbon Strategy and the policies aiming at better and simplified regulation, but are even a direct and necessary consequence of them.
In particular, the strategies related to sustainable development are to be taken into account through the application of the BWRs, continuing as the basis for formulating technical specifications for construction products.
The common technical language required for correct functioning of the Internal Market can therefore also be used as a powerful tool at the service of the environmental policies of the Union and of Member States in this field.
An open consultation was conducted over the internet between 17.03.2006 and 15.06.2006. A total number of 319 replies were received, which is considered a good rate of response. All relevant actors concerned by the CPD including industry, public administrations and other interested parties were represented in the survey answers, either through individual or grouped responses. Industrial representation in the responses can be considered as good: 94 sector associations, both at European and at National level, and 102 individual manufacturers reacted to the questionnaire.
- A summary report of the replies received is available at:
ec.europa.eu/enterprise/construction/cpdrevision ec.europa.eu/enterprise/construction/cpdrevision
- The main findings include:
· Nearly all the replies confirm the need for a harmonised legislative framework. Mutual recognition is generally viewed as not sufficient to achieve free circulation;
· An absolute need for clarification is also confirmed concerning the fundamental elements of the CPD: the general approach (performance based versus prescriptive approach), the meaning and the status (compulsory or not) of CE marking, the acceptance of CE marking by the national authorities and the users of construction products as a reliable marking, as well as the role of standards and European technical approvals;
· The CPD clearly leaves room for simplification. The systems of attestation of conformity should be simplified and reduced in number. The European technical approval route for CE marking is perceived as necessary, but the administrative procedures for its delivery must be streamlined and guidelines for European technical approval (ETAG) should disappear. The “no performance determined” (NPD) option should be maintained, but needs better definition as a means of simplifying the application of the CPD and avoiding unnecessary costs for companies;
· Demonstrated concern exists about the potential specific effects of the CPD on small and medium-sized enterprises (SMEs). Particular emphasis is given to the need for appropriate treatment specifically for non-series products. Besides, any changes to the CPD should not place undue burden on the business activity of SMEs;
· Finally, a unanimous request is brought up for reinforcing the credibility of the whole system, notably by strengthening the criteria for designation and notification of bodies and by a better coordination of market surveillance.
As part of the policy on better regulation the Commission implemented an impact assessment of policy alternatives. Three options were considered: Option 1 – No EU action: no change; Option 2 – No legislation; Option 3 – Revision of the CPD.
The baseline option is for the CPD to continue to be in force as it currently exists. Its requirements would not be clarified or simplified in any other manner than the changes related to the natural evolution of the legislation in its current form and to legislation applicable to this field beyond the CPD.
However, some of the existing divergences in national requirements and in testing and certification regimes could be reduced through already initiated means of administrative cooperation between national authorities.
Nevertheless, the in-depth analysis of this option demonstrates that many of the current problems, such as the unclear meaning of CE marking, the different approaches to CE marking (mandatory, non-mandatory), the complexity of the system, the insufficient acceptance of CE marking and the proliferation of national marks, will continue to exist. This is confirmed by the most recent data on complaints and infringements in areas already covered by harmonised technical specifications. Thus, the CPD would continue to fail to meet its objective of free circulation and use of construction products in the Internal Market.
This option would imply a repeal of the CPD without any substitute, and a reversion to mutual recognition taking into account the New Legal Framework.
In practice the Internal Market would be based exclusively on the principle that a product lawfully marketed in one Member State can be marketed in any other Member State, even if the product does not fully comply with the technical rules of the destination Member State, as long as a Member State has not sufficiently justified reasons for banning the product on the market in its territory.
COM(1999)299 final on improving the application of the principle of mutual recognition in the Single Market identified construction in the top five sectors for infringements of mutual recognition, between 1996 and 1998, under Article 28 (former Article 30) of the Treaty. By the time of COM(2002)419 final, the number of infringements in the construction sector had increased marginally over the period 1998-2001 to rank in the top four industry sectors. The most recent available data confirms these trends and shows that mutual recognition is not sufficient for assuring efficient functioning of the internal market for construction products.
In May 2006, the stakeholder consultation showed that manufacturers almost unanimously consider that mutual recognition would not be able to achieve the free circulation and use of construction products in the internal market.
The external study i, contracted for preparing the Impact Assessment of the revision of the CPD, analysed whether or not the ‘no legislation’ option would address the problems identified in relation to the CPD. Unsurprisingly, given the above discussion, the conclusion was that this option would not fulfil the objective of free circulation of construction products in the Internal Market.
Option 3, to revise the Community legislation, is the preferred option. It consists of a package which mirrors the existing necessity and scores best in the Impact Assessment. It is the only one fully corresponding to the issues and problems requiring action as well as to the findings of the stakeholder consultation undertaken in this respect. It addresses the main identified problem drivers in an optimal way and allows the best possible improvements with regard to those who are affected. It also safeguards the general acquis and the technical specifications established under the current CPD. Finally it strictly respects the balanced subsidiarity achieved in the field of construction, i.e. Member States are competent for the rules of design and building of works, while EU legislation ensures the Internal Market for the products used in such works.
The proposed Regulation contains a precise definition of its subject matter as well as definitions of the most pertinent concepts in the field of the Internal Market for construction products. Even more importantly, the specific meaning of CE marking for construction products is determined clearly: This will help to avoid confusion with other pieces of legislation providing for its affixing.
CE marking for construction products entails the declaration of relevant information in relation to the performance of the product, accompanying the placing on the market of that product; in addition, this information is to have been obtained following the provisions of the Regulation.
To ease the burden on SMEs, specific provisions for micro-enterprises and for individual products are foreseen.
Moreover, the specific role and meaning of the harmonised technical specifications, i.e. harmonised standards and EADs, are also clarified: they should be based on the concept of performance. As a consequence of this, the role of harmonised technical specifications is to provide test or calculation methods which should be the most appropriate ones for assessing and verifying constancy of the performances of the respective products.
Finally, CE marking will be mandatory for declaring the performances of products covered by the harmonised standards. Still, the proposal preserves the voluntary character of the harmonised standards by offering to the manufacturers the alternative route of the European Technical Assessment (ETA) for obtaining CE marking.
The proposal, following the New Legal Framework, introduces new and stricter criteria for the notification of bodies carrying out third party tasks in the process of assessment and verification of constancy of performance. Along the same lines, the proposal defines stringent criteria also for the designation of Technical Assessment Bodies (TAB). As a result, one can expect a greater acceptance of CE marking by Member States’ authorities and by clients (designers, contractors and owners), as the only marking attesting compliance of the construction products with declared performances.
Furthermore, the provisions on safeguard procedure of the New Legal Framework are included in this proposal: this will also enhance the credibility of the whole system.
Simplification is the main objective of this proposal. Coinciding with the experience gained through the application of the CPD, and further to the simplifications induced by clarification, the proposal also includes an important number of measures aimed at simplifying the route to CE marking, thereby reducing the administrative burden of enterprises and in particular of micro-enterprises. Some of these measures apply directly such as those related to micro-enterprises, which will be given simplified access to CE marking, where the products they place on the market do not imply significant safety concerns. Specific simplified measures are also foreseen for dealing with individual and non-series products.
The procedures for obtaining a European Technical Assessment (ETA) are also to be simplified and clarified. Besides, European standardisation bodies and Technical Assessment Bodies are encouraged to replace testing in the harmonised technical specifications by other less onerous methods, such as descriptive methods, and to introduce classes, as far as possible, in the harmonised standards in order to facilitate the use of the concepts “without testing” or “without further testing”.
Finally, the introduction of the Specific Technical Documentation (STD) will facilitate the sharing of tests results performed by a third party, as well as the cascading of testing, i.e. the transfer of testing results from upstream to downstream stages of production or from a systems provider or a models designer to the assembler of such systems or models.
These measures are expected to significantly reduce the administrative cost of placing construction products on the European market without decreasing the levels of safety for construction works. The most significant simplification measures foreseen in the proposal can be grouped as follows:
Systems of assessment and verification of constancy of performance
– Change from 6 to 5 systems by the elimination of the former system 2;
– Simplification of the former system 1+ by the removal of audit testing on the construction site and on the market. This system, which is the most demanding according to the CPD, requires, in addition to the tests performed in the production plant before placing the product on the market, a set of tests that can be performed on the product either already on the market or on the construction site. The requirement for such tests has been removed.
– Introduction of ' witness tests ', i.e. the possibility of performing tests in the manufacturer’s production plant, in order to avoid moving samples of products to the notified body’s laboratory.
– Introduction of a soft system where the manufacturer’s declaration of performances is simply supported by a Specific Technical Documentation (STD), which the manufacturer keeps in the factory at disposal of the market surveillance authorities.
Through the STD, the following tools are created:
– Without testing : under certain conditions, to be defined in the harmonised technical specifications or by a Commission decision, the product must be considered without testing, as being suitable for a specific use or able to reach a specific level or class of performance;
– Without further testing: in the same way, on the basis of a number of tests carried out by a third party, and under certain conditions, to be defined in the harmonised technical specifications or by a Commission decision, the product must be considered without further testing, as being suitable for a specific use or able to reach a specific level or class of performance;
– Sharing type testing: Manufacturer will be able to use the results of tests carried out by a third party as long as his product shares the factors determining this product-type, i.e. they use the same basic materials and are manufactured using similar production systems;
– Cascading type testing: Manufacturers assembling kits or systems can use the results of the tests performed by the providers of such kits or systems, under their authorisation and instructions. In addition, tests performed in upstream stages of the production process shouldn’t be repeated in downstream stages, provided that the performance characteristics are not modified. These measures will have important effects in the reduction of the cost of products placed on the market without reducing the safety of the works being built. They will particularly benefit the SMEs.
Further to the above concrete measures, the technical specification writers are formally requested to use, in their technical specifications, evaluation methods that are less onerous than testing, whenever possible.
Treatment of individually manufactured products
The treatment of individually manufactured products is also simplified by using the new STD. Again, this simplification measure applies to all the companies manufacturing such products, but has special relevance for SMEs and, in particular, for artisans and micro-enterprises.
Moreover, the proposal foresees specific treatment for micro-enterprises, which are given the possibility of replacing the applicable system for assessment and verification of constancy of performance by a STD, without the intervention of a third party, except for products having a very important role in assuring the safety of the works.
Pursuant to the CPD, the system of European technical approvals is the route to CE marking reserved for products not covered by any harmonised standards. This system has frequently been criticised mainly owing to its complexity, cost and lack of transparency.
Firstly, it should be considered that, in the absence of a harmonised standard, the work of issuing a European technical approval consists basically of creating a new technical specification, i.e. determining the tests or other assessment methods to be applied to a product for evaluating its performance. This is, in fact, a complex and difficult task, necessary in order to allow the product to be placed on the market with CE marking. This practice has existed in MS for years, which explains the existence of solid national bodies in this field.
The results of the stakeholder consultation indicated that this route is still needed and valid but that improvements are necessary. The objective of the revision is therefore to simplify the system as much as possible, by simplifying the procedures, making the system more transparent and by giving a bigger role to the manufacturer in deciding the content of the assessment.
The main changes proposed for the system can be summarised as follows:
1. European Technical Assessments (ETA) are to continue as a voluntary route to CE marking, as an option to the use of harmonised standards. A ETA could be carried out even when a harmonised standard exists for the same product, thereby giving more flexibility and choice to the manufacturer.
2. At present, the CPD does not contain criteria related to sectoral competence of Technical Assessment Bodies. On the contrary, the proposal explicitly sets strict criteria for them, including those related to sectoral competence, but also to technical competences in one or more of 11 defined sectoral domains.
3. The current system recognises two routes for European technical approvals, the Guidelines (ETAGs) and the Common Understanding Assessment Procedure (CUAP). These two are to be replaced by a single simplified route, the European Assessment Document (EAD).
4. The manufacturer is given a crucial role in the development of the EAD, as he decides which characteristics have to be dealt with; he intervenes in the procedure and he signs the definitive contract only when he knows the exact work programme, the timing and the cost of the procedure.
5. In terms of timing, the proposed procedure foresees, as objectives, 4.5 months for the elaboration of the EAD, as compared to estimated averages (not foreseen in the CPD) of 14.5 months for a CUAP and more than 24 months for the preparation of a ETAG.
The proposed Regulation foresees the repeal of the CPD. In general, when an act is repealed the principle of "parallel; forms" applies, that is to say, the repeal of a Directive would be effected by a replacement Directive. However, due to the particular circumstances of this case, namely:
· considerations linked to the effectiveness of the Regulation as far as the fulfilment of the Internal Market objectives are concerned;
· experience with the current CPD, showing important differences in the content and the timing of the transpositions by Member States, which have had negative implications on the functioning of the Internal Market for construction products.
· practical difficulties caused by the different transpositions, well exemplified by the present situation concerning the status of CE marking. The CPD has been transposed in such a way that CE marking is considered voluntary in 4 Member States and mandatory in the rest. Industry is very unsatisfied with this situation; still, this dilemma has not been resolved until now.
For these reasons, it is considered that the most effective means of replacing the CPD is by means of a directly applicable instrument. A Regulation is therefore chosen to be proposed as the most appropriate act, being directly applicable. The problem of divergent interpretation and implementation by Member States is thus expected to be avoided.
The proposal is based on Article 95 of Treaty.
The proposal is based on a clear principle of distribution of competences and responsibilities between the Union and Member States in the field of the construction process.
Member States are responsible for ensuring that building and civil engineering works on their territory are designed and built in a way that does not endanger the safety of persons, domestic animals and property while respecting other basic requirements in the interest of general well-being.
On the other hand, the objective of this act of Community legislation is to provide the framework for the achievement of the Internal Market for construction products, for which the Treaty gives the responsibility to the Union.
The removal of technical barriers in the construction field, to the extent that they cannot be removed by mutual recognition of equivalence among all the Member States, may only be achieved by the establishment of a common technical language by which manufacturers will express the performance in relation to the essential characteristics of the construction products they place on the market. The proposed legislation predominantly aims to provide the necessary requirements for establishing this harmonised technical language.
The proposal is very largely built on existing practices, procedures and infrastructures which it consolidates, clarifies and simplifies, rather than creating new measures and infrastructures.
Concerning the reinforcing of the criteria for the notification of bodies carrying out third party tasks in the process of assessment and verification of constancy of performance, as well as the safeguard clause provisions, the New Legal Framework is strictly followed.
Criteria for the designation and notification of the technical assessment bodies follow the same line with some adaptations taking into account the specific functions these bodies will undertake.