Considerations on COM(2022)144 - Harmonised conditions for the marketing of construction products - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)144 - Harmonised conditions for the marketing of construction products. |
|---|---|
| document | COM(2022)144  |
| date | March 30, 2022 |
(2) In order for a construction product to be placed on the market, the manufacturer is obliged to draw a declaration of performance for such product. The manufacturer assumes the responsibility for the conformity of the product with such declared performance. Certain exemptions to this obligation are provided.
(3) Experience with the implementation of Regulation 305/2011, the evaluation conducted by the Commission in 2019 as well as the report on the European Organisation for Technical Assessment have shown the underperformance of the framework in various respects, including as regards the development of standards and the market surveillance. In addition, feedback received in the course of the evaluation has pointed to the need of reducing the overlaps, contradictions and repetitive requirements, including in relation to other Union legislation, in order to provide more legal clarity and limit the administrative burden on the economic operators. It is therefore necessary to lay down more specific and detailed legal obligations for economic operators, as well as new provisions including as regards technical specifications and market surveillance, so that legal certainty is increased and that diverging interpretations are avoided.
(4) It is necessary to establish well-functioning information flows, including via electronic means, to ensure that coherent and transparent information about construction products performances is available along the supply chain. This is expected to increase transparency and to improve efficiency in terms of information transfer. Ensuring digital access to comprehensive information about construction products would contribute to the digitalisation of the construction sector altogether, making the framework fit for the digital age. Access to reliable and durable information would also mean that economic operators and other actors do not contribute to each other’s non-compliance.
(5) The European Parliament resolution of 10 March 2021 on the implementation of Regulation (EU) No 305/2011 35 welcomed the Commission’s objective to make the construction sector more sustainable by addressing the sustainability performance of construction products in the revision of Regulation 305/2011, as announced in the Circular Economy Action Plan. The Council Conclusions on the Circular Economy in the Construction Sector from 28 November 2019 36 urged the Commission to facilitate the circularity of construction products when revising the Construction Products Regulation (EU) No 305/2011. The Commission Communication ‘A New Industrial Strategy for Europe’ 37 stressed the need to address the sustainability of construction products and highlighted a more sustainable built environment as essential for Europe’s transition towards climate-neutrality. The Commission Communication ‘Updating the 2020 New Industrial Strategy: Building a stronger Single Market for Europe’s recovery’ 38 identified construction as one of the priority ecosystems that face the most important challenges meeting climate and sustainability goals and embracing the digital transformation, and on which the competitiveness of the construction sector depends. It is therefore appropriate to lay down rules for declaring environmental and sustainability performance of construction products, including the possibility of establishing relevant thresholds and classes.
(6) Similarly, the 2022 EU Strategy on Standardisation 39 identified construction as one of the most pertinent areas where harmonised standards could improve competitiveness and reduce market barriers.
(7) Pursuing the environmental goals, including the fight against climate change, makes it necessary to establish new environmental obligations and to lay the ground for the development and the application of an assessment method for the calculation of the environmental sustainability of construction products. For the same reason, it is necessary to extend the range of regulated economic operators, since distributors, suppliers and manufacturers all have a role to play in the calculation of the environmental sustainability in the construction sector. That range should therefore be extended into two directions, downstream from the distributors to the economic operators preparing re-use and remanufacturing of construction products and upstream from the manufacturer over the suppliers of intermediate products and/or raw materials. Moreover, certain operators coming into play in the context of dismantling used products or other parts of construction works or remanufacturing and re-use thereof need to contribute to a safe second life of construction products.
(8) To ensure safety and functionality of construction products and, by extension, of construction works, it is necessary to avoid that items that are not intended by their manufacturers to be construction products are placed on the market as construction products. Importers, distributors and other downstream economic operators should therefore ensure that those pseudo construction products are not sold as construction products. Moreover, certain service providers such as fulfilment service providers or 3D-printing service providers should not contribute to the non-compliances of other economic operators. It is therefore necessary to render relevant provisions applicable also to these services and their providers.
(9) It is possible that different economic operators provide a 3D-printing dataset, a 3D-printing machine or mould, and the material to be used therein, leading to a situation where none of those operators would be responsible for the safety and appropriate performance of the 3D-printed product. To avoid possible safety risks in this respect, it is therefore necessary to lay down provisions for 3D-printing datasets, materials intended to be used for 3D-printing and for 3D-printing services that permit 3D-printing of construction products, so that, by respecting these provisions, the economic operators jointly reach a level of safety similar to the one ensured for ordinary construction products.
(10) In order to ensure safety and protection of the environment and to close a regulatory loophole that would otherwise exist, it is necessary to clarify that construction products manufactured on the construction site for immediate incorporation into the construction works are subject to the same rules as other construction products. Micro-enterprises, however, often individually manufacture and install products on site. Subjecting those micro-enterprises under all circumstances to the same rules as other enterprises would disproportionally affect those micro-enterprises. It is therefore necessary to enable Member States to exempt micro-enterprises from drawing up a declaration of performance in specific situations, where the interests of other Member States are not affected.
(11) Ensuring the free movement of kits or assemblies of construction products on the internal market will bring tangible benefits to citizens, consumers and businesses, particularly. However, for reasons of legal certainty, their composition should be precisely defined in harmonised technical specifications or European assessment documents.
(12) Creating a Union market for small prefabricated one-family houses has a potential to reduce the price of housing and to have positive social and economic effects. Fairness to consumers remains a priority, specifically but not limited to ensuring affordability of housing in the context of the green transition, in line with Proposal for Council Recommendation on Ensuring a fair transition towards climate neutrality 40 , in particular recommendations 7 a)-c). It is therefore necessary to lay down harmonised rules for such small houses. However, small houses are also construction works, for which the Member States are competent. As it might not be possible to integrate cumulatively all national requirements for small prefabricated one-family houses into the future harmonised technical specifications, Member States should have the right to opt out of the application of rules that are to apply to those pre-fabricated one-family houses.
(13) The compliance of construction products with Union legislation often depends on the compliance of their key parts with that legislation. However, because key parts are often integrated into various construction products, the protection of safety and of the environment, including climate, is better achieved when those key parts are assessed upstream, that is when the performance and conformity of key parts will be assessed beforehand and independently from the assessment of the final construction product into which they are integrated. Similarly, market surveillance becomes more efficient when non-compliant key parts can be identified and targeted. Hence, it is necessary to lay down rules applicable to key parts of construction products.
(14) Construction products that have already been assessed and are reused should not be subject to the rules that apply to new construction products. However, used construction products that have never been placed on the Union market before, should be subject to the same rules as new construction products, given that such products have never been assessed.
(15) To ensure that safety and functionality of construction products is safeguarded, rules applicable to new construction products should also apply to used construction products where the intended use is changed, except to decoration purposes, for used construction products with unclear initial intended use, for used construction products which have undergone an important transformative process and for used construction products for which an economic operator claims additional characteristics or the fulfilment of product requirements.
(16) The fact that used construction products should, in principle, not undergo a new assessment, should not prevent the economic operator from having those construction products assessed if that helps to make the use of those used construction products more attractive by proving that those construction products still have certain characteristics or fulfil the applicable product requirements.
(17) Construction products placed on the market in the outermost regions of the European Union are often imported from neighbouring countries, and are therefore not subject to requirements laid down in Union law. Subjecting those construction products to such requirements would be disproportionately costly. At the same time, construction products manufactured in the outermost regions hardly circulate in other Member States. Accordingly, Member States should have the possibility to exempt construction products placed on the market or directly installed in the outermost regions of the European Union from those requirements.
(18) In order to strive for a maximum of regulatory coherence, this Regulation should to the extent possible build on the horizontal legal framework, in this case namely on Regulation (EU) No 1025/2012 of the European Parliament and of the Council. It follows the recent trend in product legislation to develop a fall-back solution where the European Standardisation Organisations do not deliver harmonised standards which can be cited in the Official Journal. As no harmonised standards for construction products could be cited in the Official Journal since late 2019 and only some dozen since Regulation (EU) No 305/2011 came into force, the new back-up empowerments for the Commission should be even more comprehensive, permitting to optimise the overall output of technical specifications so to catch up the delay in the adaptation to technical progress.
(19) Where harmonised standards lay down the rules for the assessment of performances with regard to essential characteristics relevant for the construction codes of Member States, harmonised standards should be rendered mandatory for purpose of application of this Regulation, as only such standards reach the goal of permitting the free circulation of products, whilst ensuring the Member States’ ability to request safety and environmental, including climate-related, product characteristics in view of their specific national situation. When pursued together, these two goals require that products are assessed by a single assessment method, therefore the method needs to be mandatory. However, voluntary standards can be used to make product requirements, specified for the relevant product family or category by Delegated Acts, even more concrete, following the path of Decision 768/2008 of the European Parliament and of the Council. In line with Decision 768/2008, those standards should be able to provide a presumption of conformity with the requirements covered by them.
(20) In order to contribute to the objectives of the European Green Deal and the Circular Economy Action Plan, and to ensure safe construction products, safety being one of the goals to be pursued in the legislation based on Article 114 of the Treaty on the Functioning of the European Union (TFEU), inherent product requirements related to safety, functionality and protection of environment, including climate, are necessary. When setting these requirements, the Commission should take into account their potential contribution to achieving Union climate, environmental and energy efficiency objectives. These requirements do not merely relate to the performance of construction products. Contrary to its predecessor Directive 89/106/EC, Regulation (EU) No. 305/2011 does not provide for the possibility to establish such inherent product requirements. However, certain harmonised standards for construction products contain such inherent product requirements which can relate to environment, to safety or simply to the good functioning of the product. These standards demonstrate that there is a practical need for such requirements on safety, the environment or simply the functioning of products. Article 114 TFEU as the legal base of this Regulation also imposes the pursuit of a high level of protection of the environment, health and human safety. Thus, this Regulation should (re-)introduce or validate inherent product requirements. Whilst these requirements need to be laid down by the legislator, there is a need for specifying them for the more than 30 product families, each with several categories. Hence, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission to specify the requirements for the respective construction product family or category.
(21) Manufacturing and distribution of construction products becomes ever more complex, leading to the emergence of new specialised operators, such as fulfilment service providers. For reasons of clarity, certain generic obligations, including on cooperation with authorities, should be applicable to all those involved in the supply chain, the manufacturing, the distribution, own-brand-labelling, the repackaging or secondary trade, installation, de-installation for re-use or remanufacturing, and the remanufacturing itself. Moreover, suppliers should be obliged to cooperate with market surveillance authorities for purposes of environmental sustainability assessment. For those reasons and to avoid repetition of obligations, the term ‘economic operator’ should be defined widely, encompassing all those actors so that basic generic obligations can in one strike be established for all of them.
(22) In order to foster harmonised practices amongst Member States even where a consensus about these practices could not be found, the Commission should be empowered to adopt, with regard to a limited range of issues, implementing acts on the implementation of this Regulation. The respective empowerments concern the definitions, the obligations and rights of economic operators and the obligations and rights of notified bodies.
(23) In order to improve the legal certainty and to mitigate the fragmentation of the EU market for construction products due to the existence of national requirements and marks, it is necessary to clearly define the area regulated at the EU level, the so-called ‘harmonised zone’, as opposed to the elements remaining within the remit of Member States’ national regulatory sphere.
(24) At the same time, in order to strike a balance between mitigating the fragmentation of the market and the legitimate interests of Member States to regulate construction works, it is necessary to provide for a mechanism to better integrate Member States’ needs into the development of harmonised technical specifications. For the same reason, a mechanism allowing Member State to set, based on imperative grounds of health, safety or environmental protection, additional requirements for construction products should be established.
(25) A circular economy, the key element of the Circular Economy Action Plan, can be promoted by mandatory deposit-refund systems and the obligation to take back unused products. Member States should therefore be allowed to take such measures.
(26) In order to enhance legal clarity and reduce the administrative burden for the economic operators, it is necessary to avoid that construction products are subject to multiple assessments regarding the same aspect of health, safety or protection of the environment, including climate, under different Union legislation. This was confirmed by the REFIT platform recommending that the Commission gives priority to addressing the problems of overlapping and repetitive requirements. The Commission should thus be able to determine the conditions under which the fulfilment of obligations under other Union law also fulfils certain obligations of this Regulation, where otherwise the same aspect of health, safety or protection of the environment, including climate, would be assessed in parallel under this Regulation and other Union law.
(27) Moreover, in order to avoid diverging practices of Member States and economic operators, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to determine whether certain construction products fall within the definition of construction product.
(28) In particular, in the case of energy-related products included in ecodesign working plans which are also construction products and for intermediary products, with the exception of cement, priority for the setting of sustainability requirements will be given to the [ESPR]. This should be the case for instance for heaters, boilers, heat pumps, water and space heating appliances, fans, cooling and ventilating systems and photovoltaic products, excluding building-integrated photovoltaic panels. This Regulation may still intervene in a complementary manner where needed, mainly in relation to safety aspects also taking account of other Union legislation on products such as on gas appliances, low voltage, and machinery. For other products, in order to avoid unnecessary burden for economic operators, the need may arise in future to determine the conditions under which the fulfilment of obligations under other Union law also fulfils certain obligations under this Regulation. The power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to determine such conditions.
(29) In order to create an incentive for compliance, the manufacturer of construction products should be liable for incorrect declarations of performance and conformity.
(30) The increased use of re-manufactured products is part of a shift towards a more circular economy and a reduction of the environmental and carbon footprint of construction products. Moreover, the market of re-manufacturing is currently not very developed and requirements for remanufactured products vary widely amongst Member States. Therefore and to respect the subsidiarity principle, Member States should have the possibility to exempt re-manufactured products from the obligation to draw up a declaration of performance. Such exemption should however not be possible for products that are not suitable for remanufacturing or where interests of other Member States are at stake.
(31) To enhance access to easily available and comprehensive information on construction products, thereby contributing to their safety, functionality and sustainability, it should be ensured that the declaration of performance provides all information necessary for users and authorities. In view of its utility for users, manufacturers should be able to include into that declaration additional information, provided that the declarations of performance remain uniform and easily readable and that they are not abused as advertisement.
(32) To render the reuse and remanufacturing of construction and the use of surplus construction products nonetheless possible at large scale, an alleviated procedure for drawing up the declaration of performance should be set out for those construction products. In the case of surplus construction products, where alteration by use is excluded, the alleviated procedure should be limited to those cases where the initial manufacturer refuses to take responsibility for the surplus construction product, as it is always preferable that construction products remain under responsibility of the initial, competent manufacturer where they have not been altered.
(33) In order to reduce the burden for economic operators and in particular manufacturers, economic operators issuing declarations of performance and declarations of conformity should provide those declarations by electronic means, be authorised to provide those declarations by permalink to an unamendable document or to include in those declarations permalinks to unamendable documents.
(34) In order for the manufacturers to demonstrate that the construction products benefitting from the free movement of goods fulfil relevant Union requirements, it is necessary to require a declaration of conformity complementing the declaration of performance, thus also bringing the regulatory system for construction products closer to Regulation (EC) No 765/2008. However, in order to minimise the potential administrative burden, the declaration of conformity and the declaration of performance should be combined and provided by electronic means. The administrative burden on SMEs should be further minimised through targeted simplification provisions, including on the use of appropriate technical documentation replacing type testing, permitting micro-enterprises to use the more lenient verification system and reducing the requirements for custom-made non-series products installed in an identified single construction work. The Member States should also have the possibility to exempt micro-enterprises which do not trade cross-border from the obligation to draw a declaration of performance.
(35) In order to reach alignment with other product legislation and subject to the general principles of Regulation (EC) No 765/2008, the CE marking should be affixed to construction products for which the manufacturer has drawn up a declaration of performance or conformity. The manufacturer thereby takes the responsibility for the conformity of the product with the declared performance and applicable product requirements.
(36) To ensure safety, functionality and sustainability of construction products, and by extension of construction works, all economic operators intervening in the supply and distribution chain should take appropriate measures to ensure that they place or make available on the market only construction products which are in compliance with the binding Union requirements. In order to improve the legal clarity, it is necessary to set explicitly the obligations of economic operators.
(37) It is necessary for manufacturers of construction products to determine the product type in a precise and unequivocal manner in order to ensure a precise basis for assessing the compliance of such product with Union requirements. At the same time, in order to avoid circumvention of the applicable requirements, manufacturers should be prohibited from creating ever new product types where the products in question are, in view of the crucial characteristics, identical.
(38) To avoid misleading claims, any claims made by manufacturers of construction products should either be based on an assessment method contained in harmonised technical specifications or, where no such assessment method exists, on methods representing the best available techniques, where no such assessment method provided by a harmonised technical specification exists.
(39) Technical documentation about construction products, drawn by the manufacturer, facilitates the verification of those products by authorities and notified bodies against the Union requirements. To enhance access to comprehensive information, that technical documentation should include an assessment of the environmental sustainability of the construction product.
(40) To create transparency for users of construction products and to avoid inappropriate use of those products, construction products and their intended use should be precisely identified by the manufacturer. For the same reason, the manufacturer should make clear whether the construction products are intended for professional use only, or also for use by consumers. To ensure that construction products can be traced back, manufacturers should be indicated on the product or, where this is not possible e.g. due to the product’s size or surface, on its packaging or, where that is not possible either, in a document accompanying it.
(41) To ensure that requirements of this Regulation are fulfilled, manufacturers should actively search, store and evaluate information and take appropriate measures where non-conformity or under-performance has been confirmed or where there is a risk.
(42) To optimise the pursuit of the goals of the European Green Deal and of the Circular Economy Action Plan, the manufacturers should be obliged to reach a fair level of environmental sustainability, both for their products and their manufacturing. This obligation requires trade-off-decisions between different environmental aspects and between environmental and safety aspects, whilst both environmental and safety aspects can relate to the product as such or to the construction works. To give manufacturers certainty about how to make these trade-off decisions, this Regulation should set out clear trade-off rules.
(43) With the goals of ensuring sustainability and durability of construction products, manufacturers should ensure that products can be used for a very long time. Such long use requires adequate design, use of reliable parts, reparability of products, availability of information on repair and access to replacement parts.
(44) In view of enhancing the circularity of construction products, in line with the goals of the Circular Economy Action Plan, manufacturers should favour re-use, remanufacturing and recycling of their products. The (preparation for) re-use, remanufacturing and recycling require certain design, namely by facilitating the separation of components and materials at the later stage of recycling and avoiding mixed, blended or intricate materials. As the usual instructions for use will not necessarily reach the economic operators in charge of (preparation for) re-use, remanufacturing and recycling, the necessary information in this regard should be made available in product databases or systems and on the manufacturer’s websites, in addition to the instructions for use.
(45) To deliver safe, functional and environmentally sustainable construction products, it is necessary to establish comprehensive sustainability and safety obligations for manufacturers. Given the importance of these obligations and achieving the right balance between the functionality, safety and sustainability, the Commission should be empowered to determine the conditions by delegated acts under which, for a specific product family or category, these obligations are fulfilled or presumed to be fulfilled.
(46) Some construction products become waste though they were never used. To avoid this waste of resources, manufacturers should accept to regain, directly or via their importers and distributors, ownership of products that, after delivery onto a construction site or to the user, have not been used and are in a state equivalent to the one in which they were placed on the market.
(47) In order to be able to make informed choices, users of construction products should be sufficiently well informed about the environmental performances of products, about their conformity with environmental requirements and of the degree of fulfilment of manufacturer’s environmental obligations in this regard. Therefore, the Commission is empowered to adopt delegated acts to establish specific labelling requirements which might include the easily understandable traffic light labelling.
(48) Certain manufacturer’s obligations, such as assessment of environmental sustainability or giving preference to recyclable materials, can hardly be fulfilled in case of used, remanufactured or surplus products. Economic operators enabling reuse or undertaking remanufacturing should thus be exempted from these obligations, the more so as the reuse and remanufacturing are beneficial to the environment.
(49) The authorised representatives are often the only reachable persons in case of imported products whilst manufacturers often attribute to them very limited tasks and do not provide them with all the necessary information to effectively represent the manufacturers. Hence, the role and responsibilities of authorised representatives should be clarified and strengthened.
(50) An economic operator who modifies a product in such a way that its performance or safety might be affected should be subject to the obligations of manufacturers, to ensure the verification whether performance or safety of the product are still the same. However, this obligation should not be imposed on an economic operator who repackages products to make them available in another Member State, as otherwise secondary trade and thus free circulation of products would be hampered and repackaging in principle should not affect performance nor safety of the construction product. Still, and with the aim to preserve the performance and safety of products, the economic operator undertaking the repackaging should be responsible for the correct execution of these operations to ensure that the product is not damaged and that the users are still correctly informed in the language set out by the Member State where the products are made available.
(51) In order to increase compliance of manufacturers with the obligations under this Regulation and to contribute to addressing the identified shortcomings and improve the market surveillance, service providers, online market places and brokers should be empowered and requested to verify certain easily verifiable characteristics of products and their manufacturers, such as determination of product type and drawing up a comprehensive technical documentation, and should actively contribute to ensuring that only compliant products reach the users.
(52) In order to avoid that 3D-printing is used to circumvent the obligations under this Regulation, 3D-printing service providers should have certain information obligations.
(53) The safe use of used and re-manufactured products often depends on precise information on their first use. Economic operator de-installing used products for re-use or remanufacturing should therefore take protocols on the place, conditions and presumed length of use of the de-installed product.
(54) The performance and safety of products also depend on the components used and on the services provided by calibrators or other service providers for their design and manufacturing. For these reasons, certain obligations should be established for suppliers of components and service providers involved in the manufacturing of products. Where a non-compliance or risk might have been caused by a supplied component or service of a certain economic operator, the supplier or service provider should inform thereof his other clients who have received the same component or service, so that non-compliances and risks can be effectively tackled for other products too.
(55) Certain items used for construction have multiple potential purposes. Their manufacturers should have the freedom to decide whether these items are intended for construction or not, also in order to avoid that they have to undergo performance and conformity assessment where not necessary. However, if they decide that a certain item is not intended for construction whilst it could be used for it (“pseudo product”), the manufacturers and other economic operators should ensure that it is not used in construction works. Otherwise some of the items would end up in construction whilst not fulfilling the requirements of this Regulation.
(56) For the same reason, where, however, manufacturers of items which can, by nature, be used for construction and for other purposes (“double use products”), do not explicitly exclude the use for construction, they should fulfil the obligations under this Regulation for all the items of the respective type.
(57) To clarify the applicability of this Regulation to online and other distance sales, it should be defined under which conditions a certain product is deemed to be offered to clients in the Union. As online trade has a higher likelihood of non-compliance, Member States should make a special effort and designate a single centralised market surveillance authority for detecting distance sales offers targeting clients on their territory, so that the responsible market surveillance authorities can take appropriate measures. As the detection of such offers requires the knowledge of research specialists or dedicated artificial intelligence software, the detection task should be centralised and entrusted to a single market surveillance authority.
(58) Digital technologies, which provide a significant potential for reducing administrative burden and costs for economic operators and public authorities, while also fostering innovative and new business opportunities and models, are evolving at rapid pace. The uptake of digital technologies will also contribute significantly towards achieving the objectives of the Renovation Wave, including energy efficiency, life-cycle assessments and monitoring and of the building stock. Accordingly, the Commission should be empowered to seize further opportunities of digitisation by implementing acts.
(59) As harmonised standards developed for construction products (hereafter: construction products standards) are mostly mandatory, to create legal certainty, these standards should not only be in line with the relevant standardisation requests and with this Regulation, but also with the general principles of Union law.
(60) In order to ensure a timely citation of references of construction products standards in the Official Journal of the European Union, the European Commission should be empowered to limit in scope or overrule deficient standards for purposes of legal effects under this Regulation by delegating acts instead of refusing to cite their references in the Official Journal.
(61) To ensure the coherence of the system, this Regulation should build on the horizontal legal framework for standardisation. Hence, Regulation (EU) No 1025/2012 should also apply to the extent possible to standards rendered mandatory in accordance with this Regulation. Regulation (EU) No 1025/2012 is thus to provide, among others, for a procedure for objections to harmonised construction products standards where those standards do not entirely satisfy the requirements set out in the relevant standardisation request or other requirements of this Regulation.
(62) As they are not acts of general applicability but the first step of a two steps administrative procedure leading to the CE marking, European assessment documents should not qualify as harmonised technical specifications. However, basic principles of the elaboration of harmonised standards, such as transparency for competitors, can and should also apply to European assessment documents. Moreover, the European assessment documents should be referred to in performance and conformity assessment procedures in the same way as harmonised standards. Hence and to avoid lengthy repetition of provisions, the principal rules on harmonised standards should also apply to European assessment documents. To create transparency for competitors, European assessment documents should be made publicly available and the references of all European assessment documents should be published in the Official Journal.
(63) Currently, the increasing number of hardly distinguishable European assessment documents which often have little added value when compared to others or existing harmonised standards, risks to slow down their publication. In order to deal with this risk in a cost-effective way, certain principles for the development and adoption of European assessment documents should be established or be made more concrete. Moreover, the control by the Commission should be enhanced.
(64) The requirements applicable to designating authorities of Technical Assessment Bodies (TABs) should not fall behind those applicable to notifying authorities given the similarities between their respective roles. For the same reason, TABs should have the same degree of independence and control of decision-making as notified bodies.
(65) In order to respond to a noteworthy percentage of notifications which were based on incomplete or erroneous assessments, in particular where legal bodies without own in-house technical competence were notified, it is necessary to strengthen the resources capacity of notifying authorities, namely by setting up minimum requirements; to make requirements for notified bodies more precise, namely with regard to their independence, delegation to other legal entities and own ability to perform; to require adequate qualified staffing of notified bodies and to verify the adequacy of the staffing, for which the tool of a qualification matrix has proven to be most efficient; to ensure and verify that the notified body is effectively in control of staffing, attribution of external experts, procedures, criteria and decision making, and not a subcontractor, subsidiary or another company belonging to the same family of companies; and to enlarge the documentation to be provided by bodies when applying for designation as notified body so as to provide a deeper and comparatively fairer basis for decision to notifying authorities.
(66) To counter a common deficient practice of accreditation bodies, it is necessary to ensure that accreditation bodies take as a basis for accreditation this Regulation and not the often deviating standards. It also important to ensure that the accreditation bodies assess the ability of the applicant body and not of a group of companies, as it is the applicant body itself that must be in control of future certification.
(67) To reach a level playing field and to avoid legal uncertainty, the obligations of notified bodies should be more clearly defined and rendered explicit, and this both for their assessment and verification activities and the related aspects.
(68) In order to avoid involvement between notified bodies’ staff and the manufacturers, notified bodies should ensure rotation between the personnel carrying out different conformity assessment tasks.
(69) Authorities of Member States might have questions that only a certain notified body can answer. Notified bodies should thus respond also to the questions authorities of other Member States may have.
(70) To enable all authorities an easier identification of non-compliances of notified bodies, manufacturers and products, and to ensure a level playing field, notified bodies should be empowered, and where the non-compliance can be clearly demonstrated even obliged to, proactively forward information on non-compliances to relevant market surveillance authorities or notifying authorities. Notified bodies should however not trespass the information obligation by investigating other operators than their own clients or peers.
(71) In view of creating a level playing field for notified bodies and manufacturers, the coordination amongst notified bodies should be enhanced. As only half of the current notified bodies participate on their own initiative in the activities of the already currently existing notified body coordination group, participation thereto should thus become mandatory.
(72) The attempts of establishing simplified procedures for small and medium-sized enterprises in Regulation (EU) No 305/2011 and thus reducing the burden and costs on SMEs and microenterprises have not been entirely effective and have often remained misunderstood or not used due to the lack of awareness or the lack of clarity regarding their application. By addressing the identified shortcomings while building on the previously established rules, it is necessary to clarify and facilitate their application and hence achieve the objective of supporting SMEs while ensuring performance, safety and environmental sustainability of construction products.
(73) The recognition of test results obtained by another manufacturer, provided for in Article 36(1)(b) of Regulation (EU) No 305/2011, should be generalised, in order to generally reduce the burden of economic operators and namely manufacturers. Such recognition mechanism is particularly needed to avoid multiple assessment of environmental sustainability of raw materials, interim products and final products.
(74) To ensure legal certainty in case of safety or performance problems, such recognition should only be permitted where both the two involved economic operators and the two involved notified bodies commit to cooperate and where the economic operator obtaining certification is in technical command of the product.
(75) The evaluation of Regulation (EU) No 305/2011 showed that market surveillance activities carried out at national level, widely vary in quality and effectiveness. In addition to measures set out in this Regulation in favour of better market surveillance, the compliance of economic operators, bodies and products with this Regulation should be facilitated by also involving third parties such as by the possibility of any natural or legal person to submit information on possible non-compliances through a complaint portal.
(76) To address the identified shortcomings with regards to the market surveillance under Regulation (EU) No. 305/2011, this Regulation should contain more empowerments for Member States authorities and for the Commission that should enable authorities to act under all potential problematic circumstances.
(77) Market surveillance practice has proved that when evaluating products, at a certain point in time, there is a risk of non-compliance but no non-compliance incidence whereas, at a later point in time, the opposite is to be stated. Moreover, there are situations where there is a non-compliance other than a formal one that does not trigger a risk. For these reasons, Member States should be empowered to act in all cases of suspected non-compliance or risk, whilst the definition of ‘product presenting a risk’ has to be extended to include risk for the environment. It is necessary to offer Member States enough procedural flexibility to distinguish between high and low priority cases of non-compliance, whilst all Member States should also be informed about less important cases.
(78) To ensure effective enforcement of the requirements and to strengthen market surveillance in Member States, as well as to ensure alignment with the Ecodesign for Sustainable Products Regulation, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to lay down a minimum number of checks to be performed by the market surveillance authorities on specific product group or family or in relation to specific requirements and to establish minimum resources requirements.
(79) In addition, to strengthen the on average weak capacities of market surveillance authorities in terms of market surveillance and to further align with the Ecodesign for Sustainable Products Regulation, it is necessary provide more detailed administrative coordination support and to provide them with the right to retrieve costs of inspections and testing from economic operators.
(80) To create an incentive for increasing the capacities of market surveillance authorities in terms of market surveillance and to reach alignment with the Ecodesign for Sustainable Products Regulation, Member States should report on their market surveillance activities regarding products covered by this Regulation, including regarding the penalties imposed.
(81) To better serve economic operators, product contact points for construction should become more effective and therefore should obtain more resources. In order to facilitate the work of economic operators, the tasks of product contact points for construction should be fine-tuned and extended so as to include information on product related provisions of this Regulation and on acts adopted in accordance with it.
(82) It is necessary to establish an appropriate, efficient and cost-effective coordination mechanism to ensure a consistent application of the obligations and requirements set and to strengthen the overall system, also taking into consideration the fact that new interpretative questions may arise in relation to safety and sustainability of products and construction works. As diverging decisions create an uneven playing field, contribute to rendering the legal framework more complex, create barriers to the free movement of the internal market and additional administrative burden and costs on economic operators, such diverging decisions should be prevented by that coordination mechanism.
(83) In particular, a European information system should therefore be established to collect interpretative questions, to find appropriate common solutions and to improve the sharing of information in this regard. To facilitate information sharing, such a system should rely on national systems. These national systems should also identify cases of uneven application of this Regulation, to ensure that diverging practices do not become a common practice and permanent.
(84) The centralised registration of product information increases transparency to the benefit of safety of products and the protection of the environment and human health while also reducing administrative burden and costs for economic operators. Accordingly, the power to adopt acts in accordance with Article 291 TFEU should be delegated to the Commission to establish a centralised Union construction products database or system. At this point in time it is not possible to assess the advantages and disadvantages of possible solutions, the Commission should thus be empowered to pursue any of these paths, as appropriate.
(85) To improve their level of competence, harmonise their decision making and create a level playing field for economic operators, trainings should be organised for market surveillance authorities, product contact points for cConstruction, designating authorities, TABs, notifying authorities, and notified bodies. The same goals should also be pursued by exchanges of staff between the market surveillance authorities, notifying authorities and notified bodies of two or more Member States.
(86) Member States do not always have the technical competence to fulfil all obligations incumbent on them in accordance with Union legislation cumulatively for all product sectors. They therefore obtain informal support, from other bigger Member States. Since such support is unavoidable in some cases and advisable in others, this Regulation should set out the basic rules for such support, namely to clarify responsibilities. Moreover, Member States are challenged by the increasing technical complexity of products and the legislation applicable with regard to all aspects and product sectors cumulatively, which indicates a potential for better results by virtue of specialisation and work-sharing amongst Member States. This Regulation should therefore both reflect the particular situation of the Member States and allow exploring the potential added value of specialisation and work-sharing amongst any Member States.
(87) Business on construction products becomes slowly but steadily more and more international. Hence, situations arise where non-compliances of economic operators based outside the Union need to be countered as well. As third countries hardly are ready to support the enforcement of Union law on their territory where the Union does not in return provide for the possibility to assist them, some empowerments for international cooperation should be provided for in this Regulation.
(88) A certain number of third countries applies Union product legislation or at least recognises certificates issued in accordance with it, be it on the basis of international agreements or unilaterally, both being in the interest of the Union. In order to give these third countries an incentive to continue this practice and other third countries to do the same, certain additional possibilities should be provided to third countries applying Union product legislation or recognising certificates issued in accordance with it. For this reason, it should be possible to support these particularly cooperative third countries by allowing them to participate in certain trainings and to participate in the EU construction products database or system, to the information system for harmonised decision-making and to the information exchange amongst authorities. Moreover, for the same reason, it should be possible to inform these particularly cooperative third countries about non-compliant or risky products.
(89) In order to incentivise the use of sustainable construction products whilst avoiding market distortions and to remain in line with the Ecodesign for Sustainable Products Regulation, incentives for the use of sustainable construction products provided by Member States should target the most sustainable products and be embedded in an exchange of information amongst Member States.
(90) In order to enhance the use of sustainable construction products whilst avoiding market distortions and to reach alignment with the Ecodesign for Sustainable Products Regulation, Member States’ public procurement practice should target the most sustainable amongst the compliant products. Requirements applicable to public procurement contracts set out by implementing acts should be established according to objective, transparent and non-discriminatory criteria.
(91) Public procurement amounts to 14% of the Union’s GDP. To contribute to the objective of reaching climate neutrality, improving energy and resource efficiency and transitioning to a circular economy that protects public health and biodiversity, contracting authorities and entities should, where appropriate, be required to align their procurement with specific green public procurement criteria or targets, to be set out in the delegated acts adopted pursuant to this Regulation. The criteria or targets set by delegated acts for specific product groups, should be complied with not only when directly procuring those products in public supply contracts but also in public works or public services contracts where those products will be used for activities constituting the subject matter of those contracts. Compared to a voluntary approach, mandatory criteria or targets will ensure that the leverage of public spending to boost demand for better performing products is maximised. The criteria should be transparent, objective and non-discriminatory.
(92) In order to take into account technical progress and knowledge of new scientific evidence, ensure proper functioning of the internal market, facilitate access to the information and ensure homogeneous implementation of rules, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of establishing and amending product specific technical provisions and requirements; defining the applicable assessment and verification systems; determining the conditions under which obligations under other Union law fulfil certain obligations of this Regulation; amending the declaration of performance and declaration of conformity model; establishing additional obligations to manufacturers; revising and supplementing procedural rules for the development of European assessment documents; establishing minimum requirements to market surveillance authorities; setting up a Union construction products database or system; establishing green public procurement requirements and defining minimum penalties. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making 41 . In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
(93) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission establishing means to transmit information; providing details on how to execute obligations and rights of economic operators; adopting the format of the European technical assessment; establishing minimum resources required by notified bodies and giving access to authorities of third countries to the information systems for harmonised decision-making to the EU construction products database or system and to trainings in the context of this Regulation. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 42 .
(94) The Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to human health or safety or the protection of the environment, imperative grounds of urgency so require.
(95) Regulation (EU) 2019/1020 of the European Parliament and of the Council lays down rules on a horizontal framework for market surveillance and control of products entering the Union market. In order to ensure that products under this Regulation, which are benefiting from the free movement of goods within the Union, fulfil requirements providing a high level of protection of public interests, such as the protection of human health and safety and the protection of the environment, that Regulation should apply also to products covered by this Regulation, in so far as there are no specific provisions with the same objective, nature or effect in this Regulation. Therefore, Regulation (EU) 2019/1020 should be amended accordingly.
(96) To render the implementation of this Regulation more efficient and to reduce the burden for economic operators, it should be possible to make applications and decisions on paper or in a commonly used electronic format. To obtain legal certainty, applications and decisions should only be valid where the electronic signature fulfils the requirements of Regulation (EU) No 910/2014 of the European Parliament and of the Council and where the signing person is entrusted to represent the body or economic operator, according to the law of the Member States or Union law respectively.
(97) To further reduce the burden on economic operators, it should be possible to provide documentation in a commonly used electronic format, and to fulfil information requirements electronically by default.
(98) In order to ensure a high level of compliance with this Regulation, Member States should lay down rules on penalties applicable to non-compliances and ensure that those rules are enforced. The penalties provided for should be effective, proportionate and dissuasive. In order to ensure these goals and harmonised penalties, the Commission should be empowered to establish minimum penalties by acts adopted in accordance with Article 290 of the Treaty on the Functioning of the European Union.
(99) In order to create legal certainty, it should be specified whether and for how long designations of product contact points for construction, TABs, or notified bodies and harmonised standards, European assessment documents, European technical assessments and notified bodies certificates or test reports adopted or issued under Regulation (EU) 305/2011 maintain legal effects under this Regulation. The respective transition periods should be long enough to avoid bottlenecks in respect of notified bodies and TABs designation and of the adoption or issuing of European assessment documents, European technical assessments, and notified body certificates or test reports.
(100)To create legal certainty, it should be clarified for how long products placed on the market on the basis of European assessment documents adopted under Regulation (EU) No 305/2011 may remain in the distribution chain and thus be further made available on the market. Similarly to the practice under other product legislation, the appropriate period is considered to be five years after the expiry of the European technical assessment on the basis of which they have been placed on the market. In this way, six years after the entry into force of a harmonised technical specification adopted under this Regulation all products sold to users will comply with that harmonised technical specification and this Regulation.
(101)Both the essential characteristics of construction products and their assessment methods can only be determined by harmonised technical specifications to be developed for the various product groups and families. Accordingly, requirements and obligations incumbent on economic operators with regard to a certain product group or family should only apply mandatorily as from six months after the entry into force of harmonised technical specification covering the respective product group or family.
(102)To facilitate a smooth phasing-in of future harmonised technical specifications and taking into consideration the time needed for drawing up the declaration of performance or conformity, economic operators should be permitted to opt for the voluntary application of this Regulation as from the entry into force of these harmonised technical specifications.
(103)It is necessary to avoid that economic operators can permanently circumvent the application of this Regulation by applying the harmonised technical specifications adopted under Regulation (EU) No 305/2011. For this reason, the Commission should withdraw from the Official Journal the references to harmonised standards and EADs published in support of Regulation (EU) No 305/2011 and covering a certain product group or family, by two years after the entry into force of harmonised technical specification adopted under this Regulation covering that respective product group or family.
(104)In order to fully cover the environmental assessment of construction products and to appropriately cover product requirements which exist even in current harmonised technical specifications, a more comprehensive Annex I should be developed, including also a detailed list of essential characteristics related to lifecycle assessment and a complete framework for the product requirements. On that occasion, overlaps between basic requirements for construction works should be eliminated and clarifications should be brought forward.
(105)In order to reach a minimum control intensity of the assessment and verification of manufacturers by notified bodies and to create a level playing field both for manufacturers and notified bodies, Annex V on assessment and verification systems should more precisely and comprehensively determine the tasks of manufacturers and notified bodies under different possible assessment and verification systems. Moreover, that Annex should determine the assessments and verifications to be undertaken to verify the environmental sustainability of products, in terms of product performance and product requirements.
(106)The objectives of this Regulation, namely the free circulation of construction products on the internal market, the protection of human health and safety, and the protection of the environment, cannot be sufficiently achieved by the Member States, as Member States tend to establish very diverging requirements for construction products, with an uneven level of protection of human health and safety and of the environment. These objectives can rather be better achieved at Union level by establishing a harmonised assessment framework for the performance of construction products and certain product requirements for the protection of human health and safety and of the environment. Accordingly, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.