ECCE BRUSSELS BRIEF

(i) At the European Construction Forum Meeting on 9^th October 2003, Vincente Leos, head of D G Enterprise’s Construction Unit explained that it may be considered that they are more or less half-way through the process of dealing with standards for construction.

The Construction Products Directive (Council Directive 89/106/EEC of 21 December 1988 was first published in February 1989 (Ref: OJ L40 of 11 February 1989). The full text may be obtained on line at: http://europa.eu.int/comm/enterprise/construction/internal/cpd/cpd.htm

The Directive’s main aim is to ensure safety of construction in all European Economic Area countries: it sets out certain essential performance criteria for buildings under six general headings: 1. mechanical resistance and stability; 2. safety in case of fire; 3. hygiene, health and the environment; 4. safety in use; 5. protection against noise; 6. energy economy and heat retention.

The directive is different from other New Approach directives in that the performance requirements apply to the construction as a whole and not simply to each individual component. This is because construction products on their own have no implications for general safety and well-being. For construction it was first necessary to produce a series of documents outlining the performance of buildings themselves before it could be possible to draft a series of standards to be used to define the performance characteristics of individual components. (In practice definition of building performance is set out in a series of Eurocodes which provide detailed guidance on the design methodology for structures). These Eurocodes intend to provide a set of rules for the design of buildings and civil engineering works – they cover all aspects of the design of structures and contain formulae and data for calculating key dimensions and other design variables for any proposed construction. This is why the manufacturer's ‘Declaration of Conformity’ has to relate to the performance characteristics of the product, as set out in the technical specification, and not directly to the essential requirements of the works set out in the Directive.

The Directive requires that products incorporated into constructions are adequately specified to ensure the performance of the structure itself. Three methods of compliance are permitted: (i) manufacture in compliance with Harmonised European Standards (what the Regulations call ‘relevant national standards’ or ‘Euronorms’); (ii) European Technical Approval (ETA); (iii) manufacture in compliance with a recognised national standard.

Until a harmonised standard exists, CE marking is not mandatory – once a harmonised standard has been published, national standards must be withdrawn and compliance with the harmonised standards becomes obligatory.

CE Marking is now a reality. However, as Mr Leos advised, with implementation one also finds the first misunderstandings or problems.

All new situations produce some confusion in understanding. Everyone is aware of what the CPD is.

Some 88 CEN standards have now been published in the Official Journal (OJ) of the European Communities, 36 were awaiting publication when Mr Leos made his address to the ECF. The Commission was awaiting titles in 11 languages from CEN. (12 standards to be implemented on 1st February 2004 were published in the Official Journal on 12th November 2003 Ref: OJ C 271/53)

Mr Leos believed that there is a common understanding of the approval procedure.

With regard to European Technical Approvals (ETAs), ETAs must be carried out to guidelines agreed on a Europe-wide basis. ETAs can be based on a draft standard. Quality is almost always identified with end users e.g. thermal insulation product. What is regulated is the thermal capacity of a product. It is not a mark per se, it is an informative mark.

Mr Leos explained that only 23 ETAs have been delivered, though 90 have been asked for.

There is a difference between CE marking in the framework of the CPD and in the framework of machinery etc. In relation to machinery it is a conformity marking to prove that the product conforms to essential requirements.

This is not so for the Construction Products Directive. This does not mean a product is in conformity with a precise requirement, it is a quality mark. All relevant information about product is in relation to characteristics relevant for safety - what is termed ‘fit for use’. A construction product without obligatory marking is an illegal product. Requirements differ from one country to another. All the products have to inform the consumer about all the characteristics included in that standard even if they are not regulated in that market. A product may be noted as “Non-performance determined” if a manufacturer intends to sell in a market where this standard is not required.

Thus, there is a complete difference from other Directives. The manufacturer is responsible: he always makes a Declaration of Conformity. Each has his own responsibility: nothing is changing.

No additional requirements can be required by the public administration - but a consumer can require what he wants. For instance a higher level can be asked for by the architect, but not by a public administration such as a government department. If German authorities felt they required DIN in addition to CE or French authorities asked for additional marking as a testing level this would not be accepted.

With regard to ‘keymarks’: these are voluntary marks which can deal with improving attestation of conformity: the consumer may prefer certification of product. A voluntary mark may include a higher Attestation of Conformity. The keymark is in principle a totally voluntary mark.

What is not acceptable about the ‘keymark’ is the way in which it is being used. At present it is being used as a symbol accompanied by a national mark. You can however add to the keymark all national symbols. These should be presented in a circle round the keymark to show that all these national institutions have given their approval. Mr Leos indicated that a conference on the CEN keymark was to be held on 13th November. (Details of this seminar, including a presentation by Mr Wolfgang Hoehnl of Austria on the advantages of use of the keymark in the construction sector, may be found on: http://www.cenorm.be/cenorm/news/events/keymarkseminar.asp?wai=1&close=1 ).

MARKET SURVEILLANCE: is a national competence and you can not change things. It remains a national responsibility. There is now a Communication on the New Approach. Market Surveillance is horizontally organised in Member States - practical co-operation is proposed between Member States. If a Member State discovered something wrong they need a quick and harmonised procedure to deal with it.

CE MARKING AND PUBLIC PROCUREMENT: Mr Leos stressed that we need to keep the logic and the rationale. The public procurer is an actor in the market. Can the public procurers require more than marking in the CE marking? How does the public procurer want the project completed? Can he refer to a voluntary mark? In principle, he stated, it is difficult to imagine that a voluntary mark fits the description of the public procurer. If he mentions a “voluntary mark” he must mention “or other equivalent mark”.

IN A LIVELY QUESTION AND ANSWER PERIOD Mr Leos was asked how CE marking relates sustainability, Integrates Product Policy etc. What is the holistic approach? Mr Leos explained that CE marking refers only to all regulated characteristics in order to eliminate all obstacles from Member State regulations. CE Mark is a quality mark in relation to these regulated characteristics. The European Commission is currently working on this issue.

At present the Commission is looking at the voluntary field for additional characteristics. In dealing with environmental aspects they prefer to have a European rather than national scheme. They are going towards a European scheme for ETA. If they are integrated in CE marking, they will immediately be obligatory.

PHILOSOPHY OF CE MARKING: CEN is starting to produce performance based standards i.e. good for all products related to these families. You can not compare these standards with traditional national standards. Some national groups do consider that national standards have full technical detail and that CE is constructed to provide less. Mr Leos asserted that the Commission can not imagine that a national standard is better. In the European case all the relevant required information is in accordance with standardised test methods. The DIN standard in Germany is NOT performance-based: it sets out the things with which you have to comply. What are the tools provided in the standard? The common playing field is on methods not on level of quality. The cost of the German system is seen as being too high and in Germany they are reflecting on the need to introduce performance-based standards.

Set out below is the news of a court case brought in July 28th 2003 by Juergen Schmoldt, Kaefer Isolieretechnik GmbH & Co KG and Hauptverband der Deutschen Bauindustrie e.V. against the Commission of the European Communities.

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 July 2003 by Jürgen Schmoldt, Dallgow-Döberitz (Germany), Kaefer Isoliertechnik GmbH & Co. KG, Bremen (Germany), and Hauptverband der Deutschen Bauindustrie e.V., Berlin (Germany), represented by H.-P. Schneider, Hanover.

- annul Article 1 of, and Table 1 of the Annex to, Commission Decision 2003/312/EC of 9 April 2003, published on 8 May 2003 (OJ 2003 L 114, p. 50) and notified under no C(2003) 1161, on the publication of the reference of European standards relating to the thermal insulation products EN 13162:2001 to EN 1 13162:2001 to EN 1 13172:2001, and Commission of the European Union;

On 23 May 2001, the European Committee for Standardisation adopted ten standards for thermal insulation products, the references for which were published in the Official Journal of the European Communities of 15 December 2001 (1). The Federal Republic of Germany subsequently objected to, inter alia, these ten standards for thermal insulation products under Article 5(1) of Directive 89/106/EEC (2). The objection was rejected by the contested decision.

The applicants take the view that procedural errors were committed in so far as, contrary to Article 5(1) of Directive 89/106, the Standing Committee on Construction failed to issue an opinion and in so far as the statement of reasons in the recitals to the contested decision is inadequate.

The publication of the standards in the Official Journal is likewise defective as no reference is made to the fact that the standards, for the most part, and their annexes (with the exception of Annex ZA) are not binding and that thermal installation products only need to comply with Annex ZA in order to bear the EC mark. As regards the substance, the applicants are of the opinion that the standards in question are incomplete, unclear, imprecise and contradictory and that the system of standards is incoherent. Moreover, the use of the EC mark is misleading since it does not prove that the product complies with all European standards but rather only with Annex ZA to those standards. The contested decision thus fails to meet the requirements of Directive 89/106, the principle of proportionality (third paragraph of Article 5 EC) and the requirements of consumer protection (Article 95(3) EC).

(2) Council Directive 89/106/EEC of 21 December 1989 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (OJ L 40 of 11 February 1989, p. 12) as amended by Directive 93/68/EEC (OJ L 220 of 30 August 1993, p. 1).