Explanatory Memorandum to 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. |
|---|---|
| source | COM(2022)144  |
| date | 30-03-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Regulation (EU) No 305/2011 of the European Parliament and of the Council (the ‘Construction Products Regulation’ or CPR) lays down harmonised conditions for the marketing of construction products. 1 The CPR ensures the smooth functioning of the single market and the free movement of construction products in the EU. It does so through harmonised technical specifications, which provide for a common technical language on how to test and communicate the performance of construction products (e.g. reaction to fire, thermal conductivity or sound insulation). The use of standards is mandatory when they are cited in the Official Journal of the European Union (OJEU). Construction products covered by such standards must bear the CE marking which indicates that they comply with their declared performance. Such products can then freely circulate within the single market. EU Member States are not allowed to require any additional marks, certificates or testing. The CPR does not set product requirements. EU Member States are responsible for the safety, environmental and energy requirements applicable to buildings and civil engineering works.
The Commission’s 2016 implementation report on the CPR 2 identified certain shortcomings in its implementation and a significant number of challenges linked among others to standardisation, simplification for micro-enterprises, market surveillance and enforcement, deserving further examination and discussion. The evaluation of the CPR 3 , opinions of the REFIT platform as well as Member States’ and stakeholders’ feedback pointed clearly to the shortcomings of the framework, hindering the functioning of the single market for the construction products, and therefore failing to achieve the CPR’s objectives.
The November 2016 Clean Energy for all Europeans Communication 4 stressed the need to unlock the growth and jobs potential by improving the functioning of the still fragmented single market for construction products. The European Green Deal Communication, 5 the Circular Economy action plan 6 and the Renovation Wave Communication 7 highlighted the role of the CPR as part of efforts towards energy- and resource-efficient buildings and renovations, and in addressing the sustainability of construction products. The proposal for a revised Energy Performance of buildings Directive 8 highlighted the importance of the life cycle GHG emissions of buildings and building materials to calculate the Global Warming Potential of new buildings as of 2030. The EU Forest Strategy 9 and the Sustainable Carbon Cycle 10 Communication announced, in the context of the revision of the Construction Products Regulation, the development of a standard, robust and transparent methodology to quantify the climate benefits of construction products and carbon capture and utilisation. Also, both the European Parliament and the Council have called for actions to promote circularity of construction products, to address barriers in the single market for construction products and contribute to the objectives of the European Green Deal and the Circular Economy action plan. 11
Therefore, the two general objectives of the CPR revision are to i achieve a well-functioning single market for construction products and to i contribute to the objectives of the green and digital transition, particularly the modern, resource-efficient and competitive economy.
This is an initiative within the Regulatory Fitness Programme (REFIT) as the proposal aligns with the aims of the REFIT programme, which are to make the EU laws simpler, more targeted and easier to comply with. 12
This proposal aims to tackle the following problems:
Problem 1: Single market for construction products not achieved.
The standardisation process at the core of the CPR has been underperforming. In the recent years, draft harmonised standards developed by the European Standardisation Organisations (ESOs) could rarely be cited in the Official Journal (OJEU) mainly due to legal deficiencies. The lack of citation of up-to-date harmonised standards for construction products is a key factor undermining the smooth functioning of the single market, creating trade barriers and additional costs and administrative burden on economic operators. Outdated harmonised standards also mean that they are not always market-relevant, as the process cannot keep pace with the developments in the sector. Moreover, the current situation does not allow to fulfil the regulatory needs of the Member States. Due to these deficiencies, Member States apply national marks, certifications and approvals. This is in breach of the CPR and not in line with the jurisprudence of the European Court of Justice. In addition, given the underperformance of the conventional standardisation route, the workload has progressively increased on the alternative route to obtaining the CE marking via the European assessment documents (EADs). This increase in workload has therefore led to the Commission needing more time to carry out its assessments and it may even risk to paralysing the system.
Problem 2: Implementation challenges at national level.
These issues also add to the complexity of the legal framework and contribute to the fact that market surveillance activities widely vary (in quality and effectiveness) from one Member State to another. Ineffective market surveillance and enforcement in general limits the trust in the regulatory framework and is therefore a disincentive for companies to comply with the legislation.
Drawbacks linked to the functioning of the Notified Bodies were identified in the implementation report indicating that relevant CPR provisions would benefit from more accuracy, e.g. on requirements for them (Article 43 of the CPR), on operational obligations for them (Article 52) and on coordination of them (Article 55).
Problem 3: Complexity of the legal framework /simplification not achieved.
Harmonised technical specifications provide for a common technical language on how to test and communicate the performance of construction products (e.g. reaction to fire, thermal conductivity or sound insulation). The CE marking under the CPR is linked to the assessment of the performance of a construction product, and not to its conformity with product requirements, as these are not set by the CPR. Given that this is a rather exceptional situation compared to other NLF legislation, the meaning of the CE marking is often misunderstood and misinterpreted.
Other provisions of the CPR are insufficiently clear or create overlaps either within the framework itself (e.g. the overlap between the information required for the declaration of performance and for the CE marking), or between the CPR and other EU legislation (potentially parallel routes to CE marking for some construction products under the CPR and the Ecodesign Directive 13 ). Moreover, the uptake of the simplification provisions of the CPR aimed mainly at SMEs 14 has been limited, due to lack of awareness and lack of clarity of the provisions. The smallest companies bear the largest administrative burden. Overlaps and inconsistencies create inefficiencies.
In addition, there are no specific provisions on providing information in the digital format. This will become a challenge particularly as reliable product information, from manufacturing to the installation in the building and demolition, will be necessary in the context of the digital building logbooks 15 , Level(s) 16 or other tools for assessing and reporting on the sustainability performance of buildings.
Problem 4: The CPR is unable to deliver on broader policy priorities, such as the green and digital transition, and product safety.
The available harmonised assessment methods for the performance of construction products cover only some elements linked to the environmental impacts such as pollution but have not been established with regards to sustainable use of natural resources. Furthermore, the CPR does not allow to establish environmental, functional and safety product requirements for construction products, therefore hampering the possibility to address non-performance based issues. However, to stimulate the incentives and demand for low-carbon and carbon-storing construction products, coherent and transparent information on the climate, environmental and sustainability performance of the construction products is needed as well as the possibility to govern inherent product characteristics such as durability or reparability. Enhancing the circularity of construction products will also strengthen the EU’s resilience regarding access to construction materials 17 . Moreover, digital information on construction products is not sufficiently available to address the goals of circularity and sustainability and to provide information required by other related legislation (e.g. the Energy Performance of Buildings Directive or the Ecodesign for Sustainable Products Regulation).
The CPR significantly limits the possibilities for the sector to declare, in a consistent and harmonised way, the performance of their products and to differentiate the products with regard to climate, environment and sustainability performances. It also significantly limits the possibilities for Member States to define national requirements for buildings or to include criteria in public procurement on sustainability objectives without putting at risk the functioning of the single market.
• Consistency with existing policy provisions in the policy area
The initiative is consistent with the do not significant harm principle, as it contributes to the objectives of the green transition of the European Green Deal (in particular the Renovation Wave) and the Circular Economy action plan. It promotes a greener manufacturing, re-use, remanufacturing and recycling of construction products. It ensures climate adaptation. It supports the revision of the Energy Performance of Buildings Directive by providing information on the environmental performance of construction products and thereby facilitating the calculation of energy performance of buildings, of their Global Warming Potential and of carbon removals associated to carbon storage.
The Circular Economy action plan announced the Sustainable Products Initiative (SPI) aiming to make products fit for a climate-neutral, resource-efficient and circular economy, in particular with the adoption of the Ecodesign for Sustainable Products Regulation (ESPR). Where product-specific EU legislation, like this proposal, regulates the environmental and climate sustainability aspects of products, further policy and legislative development should remain in the dedicated instrument, with the same level of stringency as the ESPR. This contributes to better coherence of EU rules on specific products and avoids administrative burden on economic actors who would otherwise have to comply with requirements laid down in different EU legislations.
Therefore, given the strong interlinkages between the environmental and structural performance of construction products, including health and safety aspects, this proposal lays down sustainability requirements for construction products. However, specific circumstances may justify targeted intervention on construction products under the ESPR. This will be the case for example for energy related construction products, which are already regulated under the existing Ecodesign Directive, such as solid fuel stoves.
‘A New Industrial strategy for Europe’ Communication 18 of March 2020 sets out a plan for EU industry to lead the twin green and digital transitions, drawing on the strength of its traditions, its businesses and its people to enhance competitiveness. To deliver on these goals, an industrial ecosystem-based approach was defined in order to better connect the needs and support the key players in each value chain. The Communication updating the 2020 New Industrial strategy 19 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 whose competitiveness depends on this. The Commission has been developing a transition pathway for the construction industry ecosystem, in a process of co-creation with industry, stakeholders and Member States, as part of the updated Industrial Strategy. As part of this work, the Commission published on 15 December 2021 a staff working document 20 that proposes scenarios for construction to become more green, digital and resilient. An enabling and regulatory framework fit for the future, that fosters investments and the building of trust is key to the ecosystem's resilience and a prerequisite for the twin transition.
The SME Strategy for a sustainable and digital Europe 21 stressed the important role of the SMEs in driving the green transition and reiterated the need to equip them with instruments to understand and mitigate environmental risks, including in the construction sector.
‘An EU strategy on Standardisation: Setting global standards in support of a resilient, green and digital EU single market’ 22 identified construction as one of the most pertinent areas where harmonised standards could improve competitiveness and reduce market barriers.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The proposal is based on Article 114 of the Treaty on the Functioning of the European Union (TFEU) because the main purpose of the Regulation is to remove obstacles to the circulation of construction products within the single market.
• Subsidiarity (for non-exclusive competence)
Without an EU regulation, the shortcomings of the CPR cannot be remedied by national laws, as the Member States have no powers to amend the CPR framework nor for correcting its failures through national measures. Currently, in the absence of appropriate standardisation at the EU, environmental and safety performances of construction products are addressed in different ways at the national level, leading to a divergence in the requirements for economic operators. EU action is therefore justified and necessary. Only at the EU level can the conditions to ensure the free circulation of construction products be set while ensuring a level playing field and pursuing sustainability goals.
As for the added value of action at the EU level, the proposal will contribute to the improvement of the overall functioning of the single market for construction products by increasing legal certainty as well as predictability, improving the level playing field for the construction ecosystem and addressing the aspects of climate and environmental performance and circularity of construction products, which can only be tackled at the EU level.
• Proportionality
The proposal is consistent with the principle of proportionality because it does not go beyond what is necessary to achieve a well-functioning single market for construction products and is proportionate in achieving the intended objective.
The proposal aims at addressing the identified shortcomings of the CPR and the objectives of the European Green Deal and the Circular Economy action plan in relation to construction products, while building on the core principles of the CPR (including the harmonised standards developed by the European Standardisation Organisations). Addressing and improving the core functioning of the CPR framework, in particular the standardisation process, is imperative in delivering of the policy objectives. Some of the new features such as product requirements or Commission acts containing technical specifications will be applied only when needed for specific products.
The proposal addresses all the problems that have been identified in the most effective and efficient way. It proposes a future proof and comprehensive regulatory framework, integrates fall-back solutions and new regulatory tools that can be activated, if a specific product category or group, based on a detailed analysis needs it. Given the broad variety of construction products, only this approach can ensure that the goals of the proposal are effectively pursued without creating unnecessary burdens for economic operators.
• Choice of the instrument
The proposal takes the form of Regulation, repealing the CPR currently in force. It ensures a common implementation of the proposed legislation across the EU.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
In 2016, the Commission published a supporting study for the Fitness Check on the construction sector. 23 The study assessed the coherence of selected EU acts applying to the construction sector and considered the legal overlaps between the CPR and Ecodesign Directive (2009), and Energy Labelling Directive. It also confirmed the inconsistencies in definitions, lack of cross-references and overlaps between the three pieces of legislation.
In 2019, the Commission published the evaluation 24 of the CPR. The overarching issues identified in this evaluation, in order of importance, were (i) underperforming standardisation system at the core of the CPR, (ii) ineffective and widely varying (from one Member State to another) market surveillance and (iii) less simplification achieved by the CPR than expected.
The conclusions of both documents have been taken into account in the proposal.
• Stakeholder consultations
Throughout the preparation of the proposal, various stakeholders were consulted: Member States, European technical bodies and associations, national authorities, companies/manufacturers, importers and distributors, consumer associations, market surveillance authorities, European/international organisations (industry associations), notified bodies, workers/professionals’ associations and others, such as individuals and other NGOs.
In line with the EU better regulation guidelines, several consultation activities took place. A brief description is set out in the bullet points below.
·Horizontal online survey (survey on horizontal issues) 25
The horizontal survey targeted selected experts and aimed at identifying how to address the various horizontal issues identified during the evaluation of the CPR in order to collect input to be used to further refine of the policy options.
·Two dedicated meetings with Member States’ experts on the CPR review took place in March and September 2020
The purpose of the meetings was to discuss about the process and the refined indicative options paper 26 , as well as to collect Member States’ views on the following topics: scope and relationship with other EU law, harmonised sphere, national law and information needs, Annex I (basic requirements for construction works) and environmental requirements.
·Company survey 27
The purpose of the company survey was to assess how the refined indicative policy options were expected to impact companies in the European construction products sector. The survey targeted economic operators in the sector.
·Public consultation 28
The public consultation showed that all stakeholder groups strongly rejected a repeal of the CPR (policy option E). In most stakeholder groups, the largest groups were in favour of maintaining the current CPR (i.e. baseline policy option A). A substantial part of the stakeholder groups preferred a revision of the CPR (i.e. policy options B, C or D) 29 .
In addition, the company survey showed that although economic operators were broadly in favour of the current CPR, they highlighted a number of issues that needed to be addressed, which required a revision. Primarily, this concerned the standardisation process.
• Collection and use of expertise
The quantitative and qualitative analysis of the impacts of different options was supported by a specific technical support contract. 30
The study collected and complemented available evidence to analyse the policy options and assess their possible impacts. The policy options have been explored to assess preferences and impacts mainly through the survey and public consultation findings.
Moreover, additional expertise was identified through relevant reports, studies and meetings with the Member State representatives, business associations, companies, technical bodies and testing bodies.
• Impact assessment
The Commission carried out an impact assessment on the revision of the CPR. After addressing the Regulatory Scrutiny Board’s comments issued in its first negative opinion of 26 July 2021, the impact assessment received a positive opinion with reservations on 26 January 2022. The Board’s opinions as well as the final impact assessment and its executive summary are published together with this proposal.
The impact assessment examined and compared five policy options to address the problems relating to the CPR:
Option A – Baseline (no revision)
The baseline scenario implied no revision of the Regulation but improving implementation through guidance and other soft law measures. The baseline scenario meant therefore a continuation of the harmonisation system and its implementation.
Option B – Repairing the CPR
Option B aimed at addressing the issues highlighted in the evaluation with the following actions:
·Address the challenges of the technical harmonisation system, option B introduces an empowerment for the Commission to rely on a ‘fall-back’ solution in case the standardisation system is not delivering standards in time and of sufficient quality.
·Continued existence of national requirements and marks will be mitigated by clearly defining the area regulated at the EU level.
·Enable a harmonised framework to assess and communicate the environmental performance of construction products.
·Set up a digital structure compatible with the Digital Product Passport.
·Promote the reuse of construction products.
·Enhance market surveillance by strengthening enforcement powers and aligning the performance of different market surveillance authorities and possibly setting a minimum number of checks and minimum level of human resources to be deployed in the market surveillance of construction products.
·Enhance common decision-making amongst all authorities and notified bodies.
·Mitigate overlaps with other EU legislation by introducing collision rules and ensuring coherence.
·Introduce a specific marking for construction products (European Construction Product – ECP) to clarify that the marking refers to performance declaration and not to conformity.
·Targeted provisions and an empowerment for Member States to exempt conditionally certain micro-enterprises from the CPR obligations.
Option C – Focusing the CPR
This option builds on the elements described in option B. However, in option C, the CPR’s scope of application is limited to certain areas, depending on the following three sub-options which can be combined:
·Sub-option C1: Harmonised standards and Commission Acts containing technical specifications would include only assessment methods for performance calculation, with no performance threshold levels, classes or other requirements to be established at EU level.
·Sub-option C2: The CPR’s scope would focus on the core areas only, according to the Member States’ regulatory needs, the relevance for the environment or for product safety and the market relevance.
·Sub-option C3: Member States would have the option to offer an alternative path to market access based on national regulations and not relying on harmonised standards and Commission Acts containing technical specifications.
Option D – Enhancing the CPR
Building on option B, requirements dealing with product inherent characteristics may also be introduced to protect public health, safety and the environment. Such product-specific requirements can be formulated via three sub-options/approaches (sub-options D1 and D2 could be combined):
·Sub-option D1: new legislative framework approach for products requirements (relying on standardisation developed by the European Standardisation Organisations);
·Sub-option D2: Common technical specifications approach (developed by or under the supervision of the Commission);
·Sub-option D 3: hybrid between D1 and D2.
The CPR would be repealed. Trade in construction products would rely on mutual recognition.
Option D was found to be the preferred option because it paves the way for the objectives and the main shortcomings of the CPR framework to be addressed with the highest degree of effectiveness and coherence. This ensures the free movement of construction products within the single market and fully responds to the ambitions stemming from the European Green Deal and Circular Economy action plan. The main changes are as follows: 31
·Provide a clearer definition of the scope and inclusion of reused and 3D-printed construction products and pre-fabricated houses.
·Introduce a new empowerment for the Commission to i adopt technical specifications via Commission acts for cases where the standardisation system is not delivering on time and of sufficient quality; i set product requirements.
·Introduce environmental, functional and safety product requirements for construction products.
·Establish a ‘harmonised zone’, a clearer division of Member States’ roles and a mechanism to gather information on to exchange proactively on Member States’ regulatory needs or measures and address those in the respect of the single market objectives.
·Introduce a new obligation for manufacturers to provide a declaration of conformity (compliance with product requirements) in addition to a declaration of performance; possibility to provide information via electronic means.
·Provide a list of general sustainability requirements (to be further defined per product family in Commission acts/harmonised standards).
·Introduce and improve simplification and exemption provisions for micro-enterprises.
·Strengthen enforcement powers of market surveillance authorities.
·Extending the role of the product contact points for construction to support economic operators.
·Establish a new Commission system allowing any natural or legal person to share complaints or reports related to possible breaches of the Regulation.
·Align with the Ecodesign for Sustainable Products Regulation on climate and environmental sustainability and on the Digital Product Passport.
Option D had envisaged replacing the CE marking by a new label (‘European Construction Product’ or ‘ECP’ marking). However, there is also a risk that such a change could increase the unclarity for economic operators instead of reducing it, especially during the transition period while two markings would have been required. Therefore, the CE marking will be kept and manufacturers will have to affix it on products for which they have drawn up a declaration of performance or conformity.
While the study supporting the impact assessment concluded that option D may lead to additional costs for the economic operators, mainly due to the introduction of environmental performance information declaration, there were certain limitations linked to the data used. Because of the additional simplification implied by option D, it may actually bring about net reduction of around EUR 180 million in terms of administrative burden (see Annex III to the impact assessment report).
• Regulatory fitness and simplification
The proposal will minimise compliance costs through a well-performing standardisation process, by clearer provisions, incentivising re-use of products, less additional national requirements and creating a level playing field for all manufacturers, especially SMEs, in all Member States. Moreover, the planned work sharing and the technical fine-tuning with the Ecodesign for Sustainable Products Regulation will avoid unnecessary costs for businesses, especially SMEs.
The proposal makes maximum use of the potential of digitalisation to reduce administrative burden, considering that the CPR does not provide for the application of digital tools. All of the proposal’s related information and documentation may be processed in digital form (e.g. Digital Product Passport) and stored, shared and accessed durably in an information system. This will lead to greater transparency along supply chains, allow construction products’ data to be stored in building logbooks and used for calculations required under other legislation (e.g. Energy Performance of Buildings Directive). This will also facilitate market surveillance.
Further reducing the administrative burden for manufacturers will be achieved by eliminating the overlap between the CE marking and the declaration of performance. Member States will also be able to exempt micro-enterprises not trading across borders from the obligations.
By introducing a new empowerment for the Commission to introduce a minimum number of checks to be performed by market surveillance authorities, the proposal aims to improve the uneven application of the CPR rules on the market. This may require more capacity for market surveillance authorities, but will allow better support for Member States in exercising their responsibility to ensure the safety and sustainability of construction works.
• Fundamental rights
The proposal has no impact on the protection of fundamental rights.
4. BUDGETARY IMPLICATIONS
The proposal will require additional resources to effectively manage the CPR framework. The requested increase in staff needs of 7 FTE 32 is proportionate to the objectives. Commission staff will carry out the following main activities:
·Develop and implement the CPR;
·Develop secondary legislation (implementing and delegated acts);
·Develop and manage standardisation requests and Commission acts;
·Assess and cite harmonised technical specifications;
·Develop common technical specifications;
·Liaise with the European Standardisation Organisations on pre-standardisation work and standardisation;
·Engage with stakeholder on technical issues;
·Provide support to Member State authorities;
·Provide training to Member States authorities, notified bodies and other bodies;
·Provide guidance to Member States and businesses.
These activities are of a legal, technical and administrative nature and need to be carried out within (or, in some cases, under the supervision of) Commission departments. In this context, staff numbers in charge of managing the current CPR framework would need to be increased and supported by other Commission departments (i.e. JRC) or by use of outsourcing. In particular, for the scientific and technical support to the preparation of delegated and implementing acts and to horizontal tasks. The degree to which the proposal will be able to respond to the objectives will largely dependent on the Commission resources available.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will monitor the implementation, the application and compliance with these new provisions to assess their effectiveness. Policy monitoring and evaluation related to the proposal would be centred around the core issues to be addressed by the revision: functioning of the standardisation process, availability of environmental and product safety information, and environmental and product safety requirements incorporated in technical specifications, impacts on the functioning of the market surveillance.
It is proposed that an evaluation of the proposal should take place no sooner than 8 years after the date of application, allowing the results and impacts of the new rules to take shape.
• Explanatory documents (for directives)
As the legal instrument is a Regulation, which is directly applicable in the Member States, there is no need for an explanatory document.
• Detailed explanation of the specific provisions of the proposal
Chapter I of the Regulation contains the general provisions.
Article 1 describes the subject matter, explicitly referring to environmental, climate and safety performance of construction products in relation to their essential characteristics, as well as to environmental, climate, functional and safety product requirements.
Article 2 defines the scope, including construction products, 3D-printing related products and services, key parts, part or materials if requested by the manufacturer, kits or assemblies covered harmonised technical specification or EADs, pre-fabricated one-family houses. In specified cases, the Regulation also applies to used products. Compared to the CPR, the scope is amended to avoid overlaps e.g. with the Drinking Water Directive 33 and the Urban Waste Water Directive. 34
Article 3 lays down the definitions.
Article 4 defines the basic work requirements and modalities to establish the essential characteristics (performance-based, e.g. recycled content) of construction products. This will be done based on the basic requirements for construction works set out in Part A of Annex I and, together with assessment methods, will form part of standards rendered mandatory for purposes of application of this Regulation. The Commission is also empowered to adopt delegated acts defining thresholds and classes of performance in relation to the essential characteristics. In addition, in case of delays or deficiencies of the standardisation process, the Commission is empowered to adopt delegated acts containing technical specifications. Furthermore, the Commission is empowered to amend Annex I Part A, through delegated acts, in the light of technical progress or to cover new risks and environmental aspects.
Article 5 states that all products covered by the Regulation need to satisfy the generic, directly applicable requirements and the respective product family or category requirements, set out in Annex I Part D. It also gives the empowerment to the Commission to adopt delegated acts defining more precisely product requirements according to Annex I Part B, C and D. These delegated acts may be further complemented by voluntary harmonised standards developed under a standardisation request. In addition, the Commission is also empowered to amend Annex I Part B, C and D, through delegated acts, in the light of technical progress or cover new risks and environmental aspects.
Article 6 provides an empowerment for the Commission to determine the applicable assessment and verification system, including the additional steps needed to counter systematic non-compliances.
Article 7 defines the ‘harmonised zone’, as opposed to the areas under the responsibility of Member States. In addition, it sets up a mechanism to deal with Member States imperative regulatory needs on health, safety or protection of the environment, including climate.
Article 8 provides for an empowerment to adopt delegated acts determining to avoid double assessment of products under this Regulation and other Union law.
Chapter II (Articles 9 to 18) sets out the procedure, declarations and marking.
Articles 9 to 12 govern the declaration of performance (DoP) and its applicable exemptions (including for micro-enterprises who do no trade cross-border, under certain conditions: for remanufactured products or for parts of construction works prepared for re-use or remanufactured).
Articles 13 and 14 lay down rules on declaration of conformity (DoC, conformity with product requirements pursuant to Article 5). To minimise the administrative burden, the DoC shall be combined with the DoP.
Under Article 15, a DoP and a DoC can be supplied in an electronic format or via a permalink. They shall be supplied in the languages required by the Member States where the manufacturer intends to make the product available.
Articles 16 to 18 set the general principles and conditions for the CE marking and for use of other markings.
Chapter III (Articles 19 to 33) defines the rights and obligations of economic operators. It sets out general and detailed obligations for manufacturers, including on how to use the relevant harmonised technical specification (harmonised standards and delegated acts) to assess and declare the performance of the product.
In particular, Article 22 defines the environmental obligations for manufacturers including the obligation to declare the mandatory sustainability characteristics set out in Annex I Part A Section 2, the global warming potential, and performance-based requirements or the minimum recycled content. Following the adoption of delegated acts for a given product family, the manufacturers are also required to
–Design and manufacture products and their packaging in such a way that their overall environmental and climate sustainability reaches the state of the art level.
–Give preference to recyclable materials and materials produced from recycling;
–Respect the minimum recycled content obligations and other limit values for environmental sustainability contained in harmonised technical specifications;
–Prevent premature obsolescence of products, use reliable parts and design products in such a way that their durability does not fall below the average durability of products for their respective category;
–Design products in such a way that they can be easily repaired, refurbished and upgraded.
Further Articles define the specific obligations of authorised representatives (Article 23), importers (Article 24) such as to ensure that products remain safe while under their control, to check that the manufacturer has fulfilled their general obligations, distributors (Article 25), obligations of fulfilment service providers, brokers, online market places, online sellers and online shops (thereby integrating them into a compliance-ensuring architecture) (Article 27) and 3D-printing providers (Article 28). It thus introduces provisions allowing the framework to address also the new business models. It also introduces new specific obligations of economic operators de-installing or dealing with used products for re-use or remanufacturing (Article 29) and obligations for double use and pseudo products (Article 31). It regulates online or distance sales of construction products (Article 32).
Chapter IV (Articles 34 to 42) contains rules on construction products standards and European assessment documents (EADs). It includes mandatory application for all performance-based requirements and voluntary for inherent product requirements. It establishes rules for the EADs and their relationship with the DoP and DoC (Article 35), EADs development, adoption (Article 36) and publication (Article 38), the content requirements for the EADs (Article 40) and for addressing the unjustified proliferation of EADs (Article 36). It also governs rules for dispute resolution in cases of disagreement among technical assessment bodies (TABs) (Article 39).
Chapter V (Articles 43 to 46) establishes requirements for designating authorities in charge of TABs and rules on how to designate, monitor and evaluate them. It also introduces empowerments to the Commission to lay down the requirements for TABs in terms of staffing and to set out the coordination tasks of TABs.
Chapter VI (Articles 47 to 63) describes the role of notifying authorities (Article 48) requirements applicable to these authorities (Article 49), including most important operational and information obligations. It establishes the requirements for the notified bodies (Art. 50), their operational obligations (Article 60) and information obligations (Article 61) and lists the obligations of a notified body with regard to its subcontractor or subsidiary (Article 53). It also lays down the rules on the use of facilities other than the testing laboratory of the notified body (Article 54). A procedure for Member States and the Commission raising formal objections to harmonised standards for accreditation is envisaged (Article 52).
Chapter VII (Articles 64 to 67) provides for simplified procedures. In order to reduce the administrative burden, particularly for SMEs and micro-enterprises, this chapter lays down simplification procedures, including Article 64 on using appropriate technical documentation, Article 65 allowing micro-enterprises to use the more lenient verification system, Article 66 reducing the requirements for custom-made non-series products installed in an identified single construction work, Article 67 on the recognition of the assessment and verification of another notified body.
Chapter VIII (Articles 68 to 76) sets out rules on market surveillance and safeguard procedures. Article 68 empowers the Commission to set up a system allowing any natural or legal person to share complaints or reports on possible non-compliances with this Regulation.
Article 70 provides for how to deal with non-compliance, Article 71 for the EU safeguard procedure for cases in which the Member States can validly refer to imperative grounds of health, safety or protection of the environment. Article 72 sets out rules to deal with complying products presenting a risk. Article 73 contains an empowerment for the Commission to lay down a minimum number of checks to be performed by market surveillance, as well as to lay down minimum human resources to be deployed by the market surveillance authorities for construction products. Article 74 provides for market surveillance coordination and an administrative cooperation group (ADCO). To strengthen the capacities of market surveillance authorities, market surveillance authorities have the right to recoup the costs of inspections and testing from economic operators (Article 75). Market surveillance authorities are required to report annually to the Commission on their activities (Article 76).
Chapter IX (Articles 77 to 81) defines the principles on information and administrative cooperation. It is introduced to strengthen the overall system and the application of the Regulation, to avoid diverging decisions that could create an uneven playing field.
In line with these objectives, Article 77 establishes and maintains an information and communication system to ensure a harmonised interpretation and application of this Regulation.
Article 78 empowers the Commission to set up an EU construction products database or system to facilitate the access to product information (especially DoP, DoC and instructions for use). Article 79 revises the rules on the product contact points for construction in order to better support the economic operators. Article 80 requires the market surveillance authorities, product contact points for construction, designating authorities, TABs, notifying authorities and notified bodies to remain up-to-date in their area of work and to receive training on the common interpretation and application of the rules. It also requires the Commission to organise the training at least once a year. Article 81 allows Member States to jointly designate authorities to fulfil their obligations under the Regulation and to share resources and responsibilities.
Chapter X (Article 82) sets the conditions for a cooperation with non-EU countries, also with a view of limiting the negative effects of non-compliance of economic operators based in these countries on the single market.
Chapter XI (Articles 83 and 84) addresses Member States’ incentives and green public procurement. Article 83 sets out the approach for the Member States to incentivise the use of more sustainable construction products. Article 84 empowers the Commission to develop sustainability requirements for green public procurement of construction products.
Chapter XII (Article 85) empowers the Commission to determine whether a specific item is a construction product.
Chapter XIII (Article 86) amends Regulation (EU) 2019/1020 so that Regulation (EU) 2019/1020 also applies to construction products.
Chapter XIV (Articles 87 to 94) sets out the final provisions. Article 87 lays down the conditions for the adoption of delegated acts in the Regulation. Article 88 mandates the role of the Standing Committee on Construction. Under Article 91, Member States shall lay down the rules that apply to penalties for breaching with the Regulation. Article 91 requires an evaluation of the Regulation no sooner than eight years after the date of application of the Regulation. Article 93 provides transitional provisions, permitting the phased transfer of all harmonised standards from the CPR to the new Regulation and thus a smooth phasing-in for economic operators. Article 94 provides for the date of entry into force and the date of application of the Regulation.
Similarly to the CPR, the enacting terms of the proposal are accompanied by several annexes, namely:
–Annex I on the basic requirements for construction works (Part A), as in the CPR, and on new elements: performance-based product requirements (Part B), inherent product requirements, particularly related to safety and environment (Part C) and information requirements (Part D);
–Annex II on the content of the declaration of performance (DoP) and declaration of conformity (DoC);
–Annex III on the procedure for adoption of a European assessment document (EAD);
–Annex IV on the product areas and requirements for technical assessment bodies (TABs);
–Annex V on the Assessment and Verification Systems;
–Annex VI on the essential characteristics for which a reference to a relevant harmonised technical specification is not required in the context of notification of notified bodies;
–Annex VII on the correlation table.