Europe creates a legal basis for safe construction products

On 24 April 2011, the new EU Construction Products Regulation came into force. It takes effect immediately, but will not impose binding obligations upon manufacturers until 1 July 2013. From an occupational safety and health perspective, the regulation is a significant improvement over the former Construction Products Directive, since for the first time, it sets out requirements for the safety of construction products at European level. A legal loophole has thus been closed.

KAN monitored development of the new Construction Products Regulation (Regulation (EU) No 305/2011) closely from the outset, and lobbied the German ministry responsible for construction, the European Parliament and the European Commission for product safety requirements to be included in it. The provisions that have now been adopted constitute a major step forward for occupational safety and health:

• According to basic requirement 3 in Annex I, a construction work must be designed and built in such a way that throughout its life cycle, it is not a threat to “the hygiene or health and safety of workers”. Reference to the life cycle covers all phases of a product’s life, from procurement of the raw materials through to disposal.
• For certain families of construction products, the European Commission may determine, in delegated acts, the essential characteristics for which the manufacturer of a product is obliged to declare its performance (Article 3), irrespective of national regulations in force at the location where the product is to be placed on the market.
• Should a Member State determine that a construction product poses a threat to human health or safety, it may require the economic operators concerned to take measures to eliminate the risk or to withdraw the product from the market (Article 58).

With the New Legislative Framework (Regulation (EC) No 765/2008 concerning accreditation and market surveillance), in force since 2010, construction products are now also subject to market surveillance. The Construction Products Regulation takes up the provisions and substantiates them.

Particular legal aspects

Like the directive preceding it, the regulation is also based upon the principle that the essential performance characteristics of the construction products should not be specified, but should be derived from the basic requirements for construction works stated in Annex I. Concrete requirements for these features are then formulated in harmonized technical specifications (such as standards). These requirements form the basis for the manufacturer’s declaration of performance and for awarding of the CE mark.

An important aspect particular to the construction sector continues to be the fact that a certain performance need be declared for a product only when relevant national provisions are to be observed at the “intended” location at which the product is to be made available on the market (Article 6 (3)e). It remains to be hoped that this arrangement will not be abused, since a contractor cannot determine from the CE mark alone to which EU Member State the original declaration applied.

Easier arrangements for manufacturers

The Construction Products Regulation brings with it a range of new provisions which are intended to simplify matters for the manufacturers of construction products:

• Certain products are exempted from the obligation to produce a declaration of performance. These include products manufactured on the construction site, and individually manufactured and custom-made products.
• Construction products are now defined more closely: they now include not only discrete products but also kits which are incorporated in a permanent manner in construction works and which have an effect on the performance of the construction works with respect to the basic requirements.
• Micro-enterprises may use simplified procedures for type-testing.
• It is now set out in the legal text that the manufacturer may to some degree make use of the test results already available for other products in the declaration of performance for a product.
• The Member States designate Product Contact Points which provide information free of charge on the national provisions applicable to the particular intended use of a construction product.

Since the Construction Products Regulation is founded upon national provisions, it is now crucial for occupational safety and health that the individual Member States create a sustainable statutory foundation for the safety of construction products. Based upon this foundation, the European Commission can formulate concrete requirements within mandates which in turn can be implemented within standards.

Michael Robert
robert@kan.de