The EU Construction Products Regulation1 ("CPR") will become fully operational on 1 July 2013 and aims to lay down harmonised conditions for the marketing of construction products in the EU. It will repeal the Construction Products Directive2 ("CPD") which had the same aims of overcoming technical barriers to trade which arise where different countries have different standards and approaches to the same products. The CPR will replace the CPD in order to simplify and clarify the framework put in place by the CPD and to improve the transparency and effectiveness of the existing measures. .

The CPR aims to do this by using four key instruments:

  • A system of harmonised technical specifications
  • An agreed system of conformity assessment;
  • A framework of notified bodies; and
  • The use of the CE mark

Whilst these instruments are not new, the CPR introduces some new requirements which will create new obligations for manufacturers, importers and distributors when placing a construction product on the market. It also has implications for designers, specifiers and builders as they must understand the new requirements and marking regime in order to assess whether certain products are appropriate for their intended use.

System of Harmonised Technical Specifications

Under the CPR, harmonised standards will be established ("hENs") which shall provide the methods and the criteria for assessing the performance of construction products in relation to their essential characteristics. Where a product is not covered by a hEN, European Assessment Documents may be produced by the European Organisation for Technical Approvals which may lead to the issue of a European Technical Assessment ("ETA") for that product. Both hEns and ETAs will form the basis for harmonised technical specifications.

The harmonised technical specifications provide EU - wide methods of assessing and declaring all the performance characteristics which affect the ability of construction products to meet certain basic requirements.

Agreed System of Conformity Assessment and Verification of Constancy of Performance

The system of Assessment and Verification of Constancy of Performance will involve third parties assessing the conformity of a product to the relevant technical specification. The system(s) will be agreed collectively by the Member States and the Commission and this will be decided on the basis of the implications of the product on health and safety and on the particular nature and production process for the product.

Framework of Notified Bodies

Notified bodies are those bodies which are considered competent to carry out the conformity assessment tasks under an agreed system of Assessment and Verification of Constancy of Performance. These can include product certification bodies, factory production control certifiers and testing laboratories approved by Member States for these purposes and then notified to the Commission and other Member States.

The Use of the CE Marking

From 1 July 2013, all construction products placed on the internal market, which are covered by a hEn or an ETA (subject to certain exceptions), must be accompanied by a Declaration of Performance ("DOP") and have the CE marking.

A DOP is produced by the manufacturer and provides information about the essential characteristics of the product based on the relevant technical specification(s). In making a DOP the manufacturer assumes legal responsibility for the conformity of the product with its declared performance. Once the CE mark is affixed to the product, this indicates that the product is consistent with its DOP. It is important to note that the CE mark is not a quality mark and it does not necessarily mean that the product will be suitable for end uses in all Member States. Member States are free to set their own minimum requirements on the performance of building works and construction products incorporated into such works. Therefore, the responsibility for ensuring that a particular product has the correct characteristics for a particular application rests with the designers, contractors and local buildings authorities.

Safety Health and Welfare at Work Act, 2005

In the context of the CPR, it is worth highlighting section 16 of the Safety, Health and Welfare at Work Act 2005 (the "2005 Act"). This creates general duties for all designers, manufacturers, importers and suppliers of articles and substances and makes specific reference to the obligation to comply with any relevant EC Directives. Notwithstanding the provisions of the CPR, designers, manufacturers, importers and suppliers of construction products in Ireland will have to ensure that they are, so far as is reasonably practicable, designed and constructed so that they can be used safely and without risk to health at work. Further, suppliers must provide relevant information to the person to whom the product is supplied which must include information on safe installation, use, maintenance, cleaning, dismantling and disposing of the product.

Conclusion

The CPR will entail new obligations for manufacturers and suppliers in relation to the information supplied with construction products and in respect of CE marking. The fundamental tenet of the CPR is to remove barriers to trade for such products within the EU market and, as such, end users such as construction professionals and contractors should be cognisant that their existing duties remain in respect of the specification, application and use of construction products.

Footnotes

1 (No. 305/2011)

2 (89/106/EEC)

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.