The European Parliament and the European Council should deal with some elephants in the room

Review of the Construction Products Regulation

The European Parliament and the European Council should deal with some elephants in the room

The European Commission adopted its proposal for a revision of Regulation (EU) N° 305/2011, the Construction Products Regulation (CPR), on 30 March 2022. The aims of the European Commission’s proposal were to improve the functioning of the internal market for construction products, address the implementation challenges that still exist at national level, simplify the legal framework and support the green and digital transition in the sector. Since, the European Parliament and the European Council have been examining the proposal.

The European Council, the authorities from the member states, adopted its negotiating position on the construction products regulation (CPR) on 30 June 2023, the last day of the Swedish presidency. The Council’s negotiating position may be found here.

In the European Parliament, the Committee on the Internal Market and Consumer Protection (IMCO) has been responsible for the file. IMCO adopted its report on 23 May 2023, including 496 amendments to the Commission proposal. On 11 July 2023 the plenary voted the European Parliament's position for trilogue negotiations with the Council. That text may be found here.

It is anticipated that the tripartite negotiations between the European Parliament, the European Council and the European Commission on the legislative proposal will start in July 2023.

This article covers aspects that should be addressed in the trilogue negotiations that is about to start:

• The construction products regulation only addresses the specifications, characteristics and information that relate to the functioning of the internal market. The regulation should not limit the sector when developing other standards, requiring other information with different reliabilities and in formats that it needs, permitting all actors in the construction sector to assume their responsibilities.
• Harmonised standards have legal effect and this should be fully taken into account during the trilogue negotiations.
• Everyone is eager to see the proposal adopted and to start revising harmonise standards accordingly. But are we ready to do so?

?All actors in the construction sector need to be able to assume their responsibilities.

The initial proposal of the European Commission gave the impression that construction is the mere assembly of individual construction products in accordance with the installation, maintenance, repair and disassembly instructions and safety data sheets of manufacturers.

Both the European Parliament and the European Council recognised that construction is an ecosystem in which a wide variety of actors play a different and significant role. Without architects and designers specifying works – and therefore setting product performance, property and functional requirements and requiring a specific reliability taking into account the specific risks associated with a particular construction works – and contractors assembling, installing or incorporating them – and therefore also setting product performance, property and functional requirements and requiring a specific reliability, which are possibly different from those specified by architects – we would only have a pile of construction products, not construction works that respond to the environmental, health and human safety needs, but also quality and even decorative and cultural needs of owners, developers, users and occupants of construction works.

Regulators play and important role by setting minimum environmental, health and human safety criteria for works and consequently for construction products and this latter is (only) what the construction products regulation is about to facilitate cross-border trade.

Construction is an ecosystem. The regulatory rules that apply when marketing construction product address a significant, but only a limited aspect of that ecosystem

The proposal, revised by the European Parliament and the European Council, recognises the significant, but qualified importance of the construction products regulation in this ecosystem.

Other actors in the construction sector than regulators need to be able to set their requirements, require different characteristics, properties and functionalities and should be able to set different reliability requirements and use different communication formats to express their needs - permitting those actors to assume the responsibilities that they bear in this ecosystem.

This is recognised in the proposal e.g. removing public procurement related requirement out of the harmonised zone and by permitting users to ask for different marks than CE marking, when and where relevant.

When this information responds to their needs, actors in the construction ecosystem may be expected to use the information in the declaration of performance and conformity, but the actors should not be obliged to do so and should not be restricted to this information, its reliability and the format in which the information is presented.

This is for me, the most significant progress that has been made over the past 15 months, and it is vital if we want to achieve construction works that continue to respond to the needs of European Union citizens.

Harmonised technical specifications are part of the coherent and complementary documentary system used by the construction ecosystem

Given their different tasks and responsibilities, all the actors in the construction ecosystem also use their own means of communication and taken together, this leads to a set of documents for specifying the works, designing them, selecting products, installing, assembling and incorporating construction products and materials, checking the execution of works, etc. This coherent and complementary set of documents constitute the state-of-the-art, which may be national, regional and even local and its composition may vary, depending on the technical domain and stakeholders involved.

Usually, the state-of-the-art is established on the basis of consensus amongst all stakeholders concerned, including but certainly not limited to member states and manufacturers. It is essential for the sector that product specifications continue to form part of the state-of-the-art.

Harmonised technical specifications comprise the product characteristics regulated in at least one European Union member state, the corresponding evaluation methods and specify how product performances should be expressed. These documents are not only used for internal market purposes, but are part of that coherent and complementary set of documents.

Replacing harmonised standards by delegated acts, written under the responsibility of the European Commission may?create gaps, overlaps, different terminology, etc. in the documentary system used by the construction ecosystem and should only be used if really unavoidable.

Objective: Removal of barriers to trade

The proposal has a clear objective, i.e. the removal of barriers to trade, permitting

• manufacturers to benefit from CE marking, obtaining free circulation of construction products on the basis of a declaration of performance and
• authorities to be able to verify whether performances meet the product performance criteria that they have set in the framework of legislation construction works

Nevertheless, even after the removal of the concept of ‘direct installation’, the proposal may still be interpreted to be wider than that, also imposing obligations onto contractors that do not benefit from free circulation and onto users in general of whom it is expected that they have to accept the evaluation methods, criteria and reliability specified by the regulators in the framework of the regulation.

The responsibility for construction works is dealt with by other, national acts and by other actors in the construction sector. Mixing both in the proposal may lead to confusion and uncertainty.

The regulation should exclusively deal with the marketing of products by manufacturers and should (only) deal with the communication between manufacturers and regulators.

Keep the regulation simple, effective and efficient and do not involve other stakeholders who cannot influence the content of the harmonised technical specifications.

At the same time, standardizers must ensure coherence between the harmonised standards - limited to the information to ensure that the internal market functions, and the other standards that respond to all other standardization needs that the sector has.

European Harmonised Technical Standards have legal effect

Harmonised technical specifications have legal effect, form part of European Union law and – in particular in the construction sector – are binding.

The European Commission determines – through standardization requests – the content of the harmonised standard and the timeframe within which harmonised standards need to be developed. It assesses compliance with the standardization request before deciding to publish the references of the harmonised standards in the?Official Journal of the European Union. The proposal foresees the empowerment of the European Commission to draw up directly – through implementing acts – alternatives to harmonised technical specifications developed by CEN. Given their legal effects, the European Commission is obliged to ensure legal certainty, which results in the need to use dated normative references, which renders the standardization process difficult. In addition, according to Advocate General Medina, European harmonised standards must be freely available without charge.

In short, I think it is clear that harmonised standards have legal effect and this should be addressed during the trilogue, ensuring that this issue does not lead to CEN refusing to permit these standards to be freely available and for the European Commission to conclude that given that CEN fails to deliver these harmonised standards, allowing the Commission to be authorised to adopt the fall-back implementing acts.

In other words, rather than treating it as an elephant in the room, given that we already know that this issue may cause difficulties, this should be addressed by the European Parliament and the European Council, before adopting the proposal.

Taking into account the above and given that the interests of the regulators, aiming at an internal market without barriers to trade, are very different from the sector aiming at construction works that respond to all user’s needs, it may be in everyone’s interest to clearly separate the essential characteristics that serve the internal market from all other construction products’ characteristics, properties and functionalities in future standardization activities. CEN’s role with regards to the development of harmonised standards is de facto limited to determining the best suited evaluation method that corresponds with each essential characteristic and to ensure coherence with the standards that the sector needs.

Whereas industry driven standards were at the basis of the new approach, also in our sector, legal interpretation seems to have change that situation completely. Writing harmonised standards seems to have become a purely execution exercise for the technical experts. The process is completely ruled by the European Commission and should be, given the legal effects that the standards have.

Hence, the European Parliament and the European Council should probably review the proposal from this perspective, i.e. permitting the sector to continue using standardization to satisfy its own needs alongside the development of harmonised standards, where the experts’ role seems to be very limited.

Referring to ‘voluntary standards’ in the proposal to specify requirements will cause confusion, because these standards will also have the same legal effect and their use by manufacturers will be equally mandatory. ?

Credibility of the system

The European Union construction product legislation has always had a conformity assessment framework that is different compared with other sectors. The characteristics addressed are derived from member states’ regulatory requirements for construction works and those regulatory requirements are modified by the member states to correspond with the characteristics, evaluation methods and criteria specified in harmonised technical specifications. This permits member states to verify whether manufacturer’s product performances satisfy the criteria that they have set.

Consequently, the credibility of the output of the construction products regulation foremost concerns the credibility of product performances. The aspect of ‘conformity’ comes less to the foreground compared with the need to have declared performances that are accurate (close to the true value).

If we want to achieve credibility of product performances, we need to ensure that the subject of the evaluation, the product samples, are taken in a credible way and that the evaluation is performed by competent parties. As the need for credible performances increases, the involvement of competent, impartial and independent notified bodies should also increase.

Given that the regulation concerns performances, it is a mystery for me that notified laboratories were not foreseen by the European Commission in its initial proposal, have not been introduced by the European Council and that the European Parliament has reintroduced them only for Assessment and Verification system 3, not for systems 1 and 1+. The assumption may be that notified certification bodies may ensure the necessary competence, impartiality and independence with regards to testing that they subcontract, but certification bodies do not necessarily have the competence required to subcontract testing in a competent manner. Moreover, not foreseeing notified laboratories also results in the absence of coordination between laboratories involved on the subject of testing, reducing the likelihood that different laboratories perform tests with a comparable precision.

Assessment and Verification system 3 may perhaps need to be upgraded for it to have meaning, ensuring that samples are taken by a notified body. This system only contributes to the regulations’ credibility if samples are representative for the product being placed on the market.

CPR Technical Acquis Expert Group as feedback mechanism

Both the European Parliament and the European Council have foreseen that the already existing and active CPR Technical Acquis Expert Group is expected to support the Commission in the task of processing Member State requests for European Union harmonisation through harmonised technical specifications. This is excellent, but may be improved.

Experience demonstrates that there are many involved stakeholders and that there are continuously improvements that need to be made. Coordination between parties is necessary to support the credibility of the system. Consequently, the CPR Technical Acquis Expert Group should also be given the task to consolidate feedback from representatives of the member states as regulators, designating and notifying authorities and market surveillance authorities, the specification writers CEN and EOTA and the Group of notified bodies.

Implementation challenges – Are we ready?

The proof of the pudding is in the eating and I am convinced that the closely involved actors, like me, are eager to make the new regulation work. Indeed, many colleagues like me have been trying to get standards cited in recent years, but failed. The sector needs revised and updated product standards urgently. Many harmonised standards are close to 20 years old.

The European Parliament and the European Council and without doubt the European Commission will try to create a framework in which the sector may progress rapidly.

Nevertheless, realism is necessary. We should not move before we are ready.

• As soon as possible introducing environmental sustainability is something we all want, but the framework is not yet mature. Reference is being made in the proposal to reference service life, but this is in most cases a theoretical concept. We do not have consolidated scientific knowledge that supports service life claims, let alone that we would be able to link such a claim with the other declared performances. We have no experience with the assessment and verification system that is being developed for environmental sustainability and we do not have notified validators that have worked in accordance with the AV-system 3+ that is being proposed. We are far from having a consolidated agreement on what the term ‘Factory Production Control’ is supposed to mean with regards to environmental sustainability. It is not yet clear, how we are going to ensure that SMEs will also be able to obtain Environmental Product Declarations for all their products. There are (voluntary) operational environmental product declaration schemes at the moment. Keep those alive while we develop a framework that embeds the Environmental Product Declarations in the regulation.
• A similar story applies for products intended to be re-used. Again, the sector supports the use of products intended to be re-used on a large and European scale as soon as possible, but we do not possess the necessary tools to do it at the moment. Issues such as evaluation of performances, conformity assessment, disassembly instructions, traceability of disassembled products and materials, design for adaptability and disassembly are under research, and we may still be far from being capable of standardizing these issues. Obliging the use by contractors that disassemble works with the intention to re-use products and materials (article 29 in the initial proposal of the European Commission), singles out one step in the process to CE mark products intended to be reused. Rather than facilitating the circular economy, this might compromise the already on-going circular economy processes when the proposal is adopted. This article does not correspond with the objective of the regulation and should be deleted.

Obliging all manufacturers to have an environmental product declaration should not be done, unless the framework is clear and accessible to all manufacturers, including SMEs. Adding products intended to be reused to the scope of harmonised standards should also only be done, once the framework is clear.

Pragmatically broadening the scope of the regulation once the framework has been established will permit the sector to benefit from CE marking on the basis of updated harmonised technical specifications soon. If we want to introduce everything as soon as the regulation is adopted, I fear we will continue to work in the present framework with the harmonised standards that we have for at least 5 more years, if not longer.

As the saying goes, perfection is the enemy of progress. Make an incremental plan, permitting to add requirements when ready.

Whereas I think that in general the direction taken by the European Parliament and the European Council makes a lot of sense and has the potential of being effective and efficient, there are a number of elephants in the room that may need to be tackled before adopting the proposed legislation.

The Construction Products Regulation is a very important tool in the European construction ecosystem. The actors in the sector should pay attention.