Annexes to COM(2016)445 - Implementation of Regulation 305/2011 laying down harmonised conditions for the marketing of construction products - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)445 - Implementation of Regulation 305/2011 laying down harmonised conditions for the marketing of construction products. |
|---|---|
| document | COM(2016)445  |
| date | July 7, 2016 |
In conclusion, Articles 19, 20, 21 and 24 of the CPR are functioning in line with their objectives. The practical transition from the CPD to the CPR could have been faster and the procedures in place could still be further streamlined. However, in general the improvements required for quicker and more transparent finalisation of EADs can be made without regulatory proposals 41 .
7. Notified bodies and notifying Authorities
The credibility of the system established by the CPR relies widely on the notified bodies (NBs) 42 , which have to fulfil strict requirements on their technical competence, impartiality, and accountability 43 . Particular attention should be paid to their independence, a criteria emphasised during the CPR adoption process. Notifying authorities designated by Member States 44 are responsible for the national notification and monitoring procedures.
The activities of the Group of Notified Bodies and its subgroups have been enhanced by their strengthened regulatory backing in the CPR 45 . Such coordination is necessary to ensure uniform application of the rules in place, so as to avoid the occasional criticism for varying practices in this field.
Increased legal certainty and consistency were achieved when Annex V to the CPR was amended by Commission Delegated Regulation (EU) No 568/2014 of 18 February 2014 46 . That Regulation clarified the degree of involvement and the role of NBs in assessing and verifying constancy of performance of construction products. As a result, NBs now better understand their responsibilities.
The transition from the CPD to the CPR has brought about a paradigm change also for NBs. Some of them still need to adapt in order to fully incorporate the progress towards targeted certification activities 47 , in addition to the other clarifications of their functions. This also has a bearing on the use of accreditation standards for notification purposes.
The feedback received from the application of the CPR provisions in this field indicates that some rules could be more precise 48 . In the same vein, these provisions 49 would benefit from further examination whether they should be distanced from the New Approach principles 50 .
8. Micro-enterprises and simplification
To level the playing field for SMEs and micro-enterprises, the CPR provides derogations from the obligation to draw up a DoP 51 and simplified procedures for placing construction products on the market 52 .
At the present implementation stage, experience is still limited on the practical use of most of these options, with the exception of the rules on simplified procedures concerning classification without testing, sharing and cascading 53 . These provisions are in frequent use where applicable.
However, there is so far no documentary evidence of use of the other options in question. This could mean that the expected alleviation of financial and administrative burden on companies has not materialised. Reasons cited by stakeholders for this limited uptake include:
• varying practices and interpretations in Member States;
• low awareness in industry about these options;
• uncertainty over the meaning of key terms in the CPR;
• difficulties in demonstrating ‘equivalence’ and/or providing alternative technical documentation;
• doubts over the actual extent of financial savings applicable;
• fear of disapproval of authorities or users if the procedures are not (correctly) applied.
In particular, these doubts have affected the potential for microenterprises to apply the simplified procedures of Article 37 as intended during the regulatory process for the CPR.
A comprehensive approach appears to be required, with further elaborations on the way forward, to better meet the expectations of SMEs, especially micro-enterprises, operating in the EU construction sector. The Commission is to facilitate these developments via discussions in a technical platform.
9. Market surveillance
Within the new legislative framework adopted in 2008, Regulation (EC) No 765/2008 54 established the main administrative framework for market surveillance in Member States, whereas Decision No 768/2008/EC contained reference provisions for individual market surveillance procedures: these provisions were to be used by inserting them into the sector-specific legislation. Market surveillance-related Articles 56 to 59 of the CPR thus draw largely on Articles R31 to R34 of Decision No 768/2008/EC, but have had to be adjusted for the context at hand. These adjustments could be seen as a partial cause for some of the market surveillance challenges experienced during CPR implementation 55 .
The functioning of market surveillance authorities in Member States has been based on Regulation (EC) No 765/2008 since its entry into application on 1 January 2010 and all Member States have duly established them for construction products, albeit with variable availability of resources and real impact on the market. Their cooperation within the market surveillance administrative cooperation group (AdCo-CPR) Group has continuously intensified during the last few years, partially due to new financial support by the EU for the group’s activities. AdCo-CPR has recently organised several joint market surveillance actions and contributed efficiently to developing the ICSMS system 56 to better serve the needs of the construction sector. The RAPEX system, established under the General Product Safety Directive 2001/95/EC, has also been used for construction products, with a view to ensuring their safety in use.
Further ongoing developments within AdCo-CPR include drafting a sector-specific approach to risk assessment for construction products. In addition, Member State authorities are tackling the current challenges in applying Articles 56 to 58 of the CPR with a view to streamlining the procedures involved 57 . These developments are highly beneficial for future decisions on improving market surveillance in Member States.
10. Conclusions, recommendations and way forward
The CPR has been implemented for a relatively short period only, therefore not all the objectives the CPR was aiming at have been achieved yet. A significant part of the challenges reported above relate to implementation difficulties and delayed adaptation by stakeholders. Before being able to draw definite conclusions on the performance of the legislation, further work is necessary to improve implementation, particularly at national level (for example on uniform interpretation and removing obstacles to free movement) but also by other players such as CEN and EOTA. For this reason, the Commission does not consider it appropriate to propose amendments to the CPR at this stage.
However the Commission sees a clear need for continued dialogue with Member States and other stakeholders, close monitoring of the situation and enforcement of existing rules.
Building on the efforts already made in terms of clarification, in order to further support adequate and uniform implementation of the CPR, as well as focusing on the areas identified in the present report could notably include the development of additional interpretative material and of guidance, as well as communication and awareness actions.
There is potential for a quicker and a better streamlined standardisation process with standards responding better to the needs of their users through a close and efficient collaboration between CEN, Member States, the industry and the Commission.
For EOTA, the procedural rules set out in Annex II to the CPR could be streamlined for the quicker and more transparent finalisation of EADs via a delegated act.
At this stage, the Commission sees a need to further clarify certain provisions in the CPR to support uniform application, notably the following:
• Article 5 on derogations from drawing up a DoP;
• Article 6 on the content of the DoP;
• Article 9(2) on the information following the CE marking;
• Article 37 on simplified procedures for micro-enterprises;
• Article 38 on simplified procedures for individually manufactured or custom-made products;
• Articles 56-58 on procedures for market surveillance.
The Commission intends to continue following attentively the implementation of the Regulation in order to identify further potential issues that could not yet be solved at the level of interpretation.
The Commission will engage in further dialogue with relevant stakeholders on the issues identified via technical platforms to be convened by the end of 2016. Once the implementation of the CPR could be expected to have reached a more mature stage, and considering the outcomes of such dialogue and the results of upcoming related studies, sectoral assessment and reports 58 , the Commission will review the performance of the CPR.
(1)
Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC, OJ L 88, 4.4.2011, p. 5.
(2)
http://bookshop.europa.eu/en/analysis-of-the-implementation-of-the-construction-products-regulation-pbET0415686/, http://bookshop.europa.eu/en/analysis-of-the-implementation-of-the-construction-products-regulation-pbET0415688/, http://bookshop.europa.eu/en/analysis-of-the-implementation-of-the-construction-products-regulation-pbET0115716/.
(3)
COM(2014)511, 07.08.2014, required by Art. 67(1).
(4)
COM(2015)449, 16.09.2015, required by Art. 61(1).
(5)
As required by Article 34(2) of the CPR.
(6)
The CPR was therefore listed in the Commission's rolling programme for update and simplification of the acquis communautaire and integrated into the REFIT (Regulatory Fitness and Performance) programme in 2014.
(7)
http://ec.europa.eu/europe2020/index_en.htm.
(8)
Communication from the Commission to the European Parliament and the Council, ‘Strategy for the sustainable competitiveness of the construction sector and its enterprises’, COM(2012) 433, 31.7.2012.
(9)
As listed in Annex I to the CPR.
(10)
As defined in Article 2 (1) of the CPR.
(11)
Council Resolution of 7 May 1985, OJ C 136 of 4.8.1985.
(12)
OJ L 218, 13.8.2008, p. 82.
(13)
A June 2012 conference, a 2014 video and a 2015 brochure (‘EC marking of construction products — step by step’, http://ec.europa.eu/DocsRoom/documents?tags=ce-guide).
(14)
Nando, at: http://ec.europa.eu/growth/tools-databases/nando/index.cfm?fuseaction=directive.notifiedbody&dir_id=33.
(15)
Under Article 4(1), this sphere comprises products covered by harmonised standards and those for which European technical assessments have been issued.
(16)
Following adoption of Commission Delegated Regulation (EU) No 157/2014 of 30 October 2013 on the conditions for making a declaration of performance on construction products available on a website, manufacturers can make the DoP available electronically. There is evidence that this approach is used and viewed positively by industry.
(17)
Cf. Article 4(2) of the CPR.
(18)
Marks (or, more generally, procedures creating ex ante requirements for manufacturers) with a national connotation.
(19)
The area of basic requirements for construction works, as stated in Annex I to the CPR.
(20)
http://curia.europa.eu/juris/liste.jsf?td=ALL&language=en&jur=C,T,F&num=c-100/13 %23.
(21)
As in para 62 of the judgment in case C-100/13.
(22)
Decision No 768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common framework for the marketing of products, and repealing Council Decision 93/465/EE, OJ L 218, 13.8.2008, p. 82.
(23)
Cf. Articles 4(2), 8(3), 8(6) and 17(5).
(24)
Access to harmonised standards is an important question, as recognised by the European Court of Justice’s Advocate General in his opinion (paragraph 51 in particular) delivered on 28.1.2016 on case C‑613/14. This opinion also underlined the pertinence of standards as part of the EU harmonisation mechanism – Furthermore, the European Ombudsman has recently closed a query on this topic Q2/2013/EIS by her report of 11.12.2015.
(25)
See Article 17(2) of the CPR.
(26)
See footnote 16.
(27)
In particular on certain basic requirements for construction works.
(28)
Since amendments to existing standards should be made using the shortened mandating procedure.
(29)
Commission decision of 1.6.2016 on the approval and the signing of the Joint Initiative on Standardisation, C(2016)3211.
(30)
Cf. Article 19(1) defining the scope of these activities.
(31)
Cf. Article 20.
(32)
Cf. Articles 19(2) & (3) and Annex II to the CPR; cf. also Article 21.
(33)
Cf. Articles 29 & 30 and Table 2 of Annex IV to the CPR; the Commission guidelines under Article 29(4) have also been duly communicated to Member States. By May 2016, 50 TABs have been designated in 25 countries, including three EFTA countries. Six Member States have not designated any TAB.
(34)
Cf. Article 66(3) of the CPR.
(35)
The publication of reference to the first converted EAD of this kind in the OJEU took place in May 2016.
(36)
Cf. Article 66(4) of the CPR.
(37)
OJ L 289, 31.10.2013, p. 42-43; this act is based on Article 26(3) of the CPR.
(38)
Cf. Article 24 of the CPR.
(39)
By May 2016, 40 EADs had been cited in the OJEU.
(40)
So far, EOTA has not reported to the Commission any delays in the development of EADs either, as required in point 6 of Annex II to the CPR.
(41)
The procedural rules set out in Annex II to the CPR could be streamlined using a delegated act (cf. Articles 19(3) and 60(d)).
(42)
These bodies are called on to perform third-party tasks on AVCP for construction products. By May 2016, 623 NBs had been notified.
(43)
The requirements for NBs are set out in Article 43 of the CPR.
(44)
Cf. Article 40 of the CPR.
(45)
Cf. Articles 43(11) and 55 of the CPR.
(46)
OJ L 157, 27.5.2014, p. 76-79.
(47)
As opposed to product certification, the CPR, and its new Annex V in particular, focus on certifying the constancy of performance.
(48)
Cf. notably Articles 43, 45, 46, 52(2) and 55 of the CPR.
(49)
From Decision No 768/2008/EC.
(50)
Cf. notably Articles 44, 50(1), 51 and 53(2) of the CPR.
(51)
Article 5.
(52)
Articles 36 to 38. Of these, Article 37 concerns micro-enterprises specifically.
(53)
Article 36.
(54)
Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93, OJ L 218, 13.8.2008, p. 30.
(55)
On 13 February 2013, the Commission adopted a package of proposals to improve the safety of consumer products and market surveillance for industrial products (COM(2013) 75; COM(2013) 78; COM(2013) 76), currently pending for adoption in the European Parliament and the Council.
(56)
General information and communication support system for market surveillance.
(57)
The Commission has so far not been informed of any formal procedures initiated by Member States under these Articles; according to Article 56(2), such information would have been needed at the very beginning of such procedures.
(58)
E.g. the above-mentioned construction fitness check, study on economic impacts of the CPR, report on EOTA financing, initiatives on market surveillance and the Single Digital Gateway.