KANBrief 3/22
The EU Construction Products Regulation (EU CPR) of 9 March 2011 sets out harmonized conditions for the distribution of construction products in the EU. The Regulation is now to be thoroughly revised and adapted better to the current needs of the market. An important step with respect to occupational safety and health is that the draft now also makes provision for product safety requirements. This brings the Regulation into line with the other European legislative instruments governing the Single Market.
Up to now, the European legal provisions governing the safety of construction products have been very limited. For example, the EU General Product Safety Directive (GPSD) covers only consumer safety, and not the large group of persons working on construction sites. A particular major drawback is that the Directive has not had any influence upon construction products. Manufacturers thus have virtually no guidelines at their disposal on how to design their products to be safe, and must take the initiative and bear the costs themselves. As a result, the safety requirements of the GPSD have often had no effect in practice. A good example is that of skylights, which cause several fatal falling accidents every year in Germany alone. To date, neither general product safety nor the requirements for safety in use set out in the current Construction Products Regulation have assured adequate safety in this area.
Before now, the requirements of the Regulation applied solely to the final structure, and only by extension to the construction product. In the present draft for the revised Regulation, product requirements relating to functionality, safety, protection of the environment and sustainability in the context of the circular economy have been added in Annex I B/C/D, together with requirements concerning the information to be provided when a product is placed on the market. By including this extensive catalogue of requirements inherent to products which relate solely to the construction product itself, the European Commission is implementing a clear paradigm shift from previous regulations.
This step is urgently needed, for a number of reasons. With respect to the high level of safety and health required by Article 114 of the Treaty on the Functioning of the EU (TFEU), the existing EU Construction Products Regulation exhibits a major legal deficiency: it makes no provision for safety requirements applicable to the products themselves. This is highly inconsistent, since various provisions in the national legislation of the EU Member States attach great importance to the safeguarding of health. Furthermore, accident rates are particularly high in the construction industry, a problem that is exacerbated by the exclusion of product safety from the legislation.
Comparison with other product areas shows that complex machines and systems, for example, must meet extensive requirements, and that efforts are also being made at present to apply suitable safety requirements to highly complex AI systems. There is therefore no evident justification for the safety of the products themselves not to be addressed by the Construction Products Regulation. On the contrary, there is much to suggest that construction products in particular lend themselves more readily to the addition of the necessary safety features.
The blanket objection to higher costs, raised by some manufacturers’ associations, does not withstand closer scrutiny, since additional costs, for the most part probably moderate, are incurred only for construction products for which the need for additional product safety requirements actually arises. A modern approach to the issue of product safety is required.
Conversely, inadequate product safety may itself be a source of considerable costs. Against the background of dwindling human resources, private, trade and industrial users of construction products are dependent more than ever before on their use being safe. Quite apart from the aspect of human suffering, illness and lost working hours impact negatively on companies’ profits. The companies using these products therefore welcome regulatory arrangements that enhance safety. The same applies to the accident insurance institutions, which must bear the consequential costs, in some cases considerable, of accidents and diseases caused by unsafe products that would be avoided by the introduction of product safety standards.
The view of the occupational safety and health lobby is that consideration of product safety in the draft EU CPR represents a major step forwards from the previous arrangement. However, the technical requirements stated in the Regulation take effect only once the European Commission has adopted delegated acts. These specify requirements for individual product families and categories together with the corresponding test procedures, and form the basis for standardization mandates. To increase the binding force of these requirements, it is crucial that a directly applicable general requirement for product safety (making reference to Annex I) be added to the draft. This would enable standards development to respond swiftly and without the separate coordination process associated with a delegated act.
Furthermore, the occupational safety and health lobby regards delegated acts as an unsuitable legal instrument for determining whether or not product safety should be considered; consequently, where no delegated act is adopted, it follows that product safety requirements are not set out. Based upon the practice followed with other regulations, use of the delegated act is more appropriate for supplementing and adjusting certain requirements.
Michael Robert
robert@kan.de