In view of the revision of the CPR, the EC prepared the document "Refined indicative options for the review of the Construction Products Regulation", which includes a number of options for the potential revision of the CPR. The EC and member states have discussed this document before. The outcome of this discussion shows that several member states expressed their preference for keeping the current standardization system. On the other hand, the EC pointed out that "CEN refuses to comply with legal requirements, other options need to be explored". The European Commission is now inviting stakeholders to provide feedback on these different options for the review of the CPR by 30 August.
EC indicative options for the review of the CPR
A summary of the different options developed by the EC is presented below.
Option A – Current situation: Baseline scenario
No legislative change, but improving implementation through guidance / soft law by the European Commission. This implies streamlining the standardisation work, e.g.:
- Following initiatives like JIS – Action 5;
- inviting CEN-CLC to ensure clarity of the scope of harmonised standards;
- inviting CEN-CLC to front-load acceptability criteria to be applied by the EC;
- inviting CEN-CLC to ensure internal quality control;
- inviting CEN-CLC to speed up the revision of CPD-era standards with high market relevance or relevance for the safety of citizens;
- ensuring that the rules in Articles 3(3) and 27 CPR on classes or thresholds are used and respected;
issuing, where needed and promising, new standardisation requests which respond to current legal requirements, Member States’ regulatory needs and market needs.
Option B – Repairing the CPR
This option would not so much invest into the implementation of the current CPR, but focus on the repair of the CPR by its revision. Option B might include legislative amendments to realise the following aims:
- Clarify and streamline the scope of CPR (e.g. exclusion/inclusion of certain products). The EC could be allowed to modify the CPR's scope by delegated act;
- Ensure coherence with other EU legislation;
- Address environmental aspects (Basic Work Requirement 7) and circular economy of construction products;
- Empower the EC to act against partial system failures;
- Harmonised technical Specifications (HTS): harmonised standards cited in the OJEU or Implementing or delegated acts containing technical specifications. The EC would choose one of the above solutions to contain the HTS for each construction product. The technical content would be covered in harmonised standards cited in the OJEU (as it is today) or in implementing or delegated acts developed by any organisation/body, i.e. CEN-CLC, private standardisation consortia, JRC, industry groups, member states or group of member states, etc). The Annex III of the report indicates that harmonised standards would continue to exist but for the time being, as a second best (or "back-up") solution. The preferred option for the EC would be delegated and implementing acts.
- Improving access to HTS: one of the issues presented in the report is that harmonised standards are not available in all EU official languages and subject to copyright protection. The report points out that HTS in delegated or implementing acts cited in the OJEU would be translated into all EU official languages and made freely available. If such delegated or implementing act would contain normative references to other documents, the revised CPR would ensure that the relevant content of the referenced documents is available in all languages and free of charge.
The annex III of the report also highlights that under option B, CEN-CLC would not need to change the internal procedures for developing standards. The integration of technical content into EC delegated or implementing acts would be done either in the following ways: (1) inserting the content directly or (2) by referencing the content laid down in a document which is publicly available and translated into all EU languages. According to the EC, the latter path could be followed by CEN-CLC but translation into all EU official languages would need to be done by the national standardization bodies.
Option C – Focusing the CPR
The CPR would be revised and focused on assessment methods. This option builds on the “Repairing CPR” option, meaning that it would, to the extent that there is compatibility, include all the elements described in Option B. The three elements presented here could be combined.
- Limiting the CPR's scope to assessment methods: HTS would include only assessment methods for performance calculation. No performance threshold levels or classes would be laid down at EU level.
- Assessment methods would be developed as set out under Option B: as primary root, the EC would adopt Delegated or Implementing Acts containing HTS indicating which assessment methods apply to certain identified essential characteristics of a specific product family. The EC would base itself on the assessment methods included in existing standards. The result would be a list of assessment methods specifying the range of product families and the essential characteristics they address, published in the OJEU.
- Limiting the CPR’s scope to core areas.
Making the Common Technical Language optional for manufacturers.
Option D – Enhancing the CPR
Under this option, a revised CPR would introduce product requirements dealing with product inherent aspects in order to protect health, safety and the environment. It builds on Option B “Repairing CPR”, which in turn includes the Baseline scenario outlined under Option A. Such product requirements could follow two different approaches, which are outlined under D1 and D2:
Option D1 NLF approach
- Essential requirements would be laid down in standardization requests addressed to CEN-CLC.
- CEN-CLC would develop voluntary standards providing technical detail. These standards would be cited in the OJEU.
Compliance with standards would provide presumption of conformity.
Option D2 'Technical specifications approach for product requirements'
- Detailed requirements would be included in Harmonised Technical Specifications ("Old approach"). EC acts would lay down technically detailed product requirements.
- Requirements would be developed in line with Option B: EC would be empowered to adopt delegated or implementing acts containing alongside the technical specifications detailed product requirements. The technical content could be developed by different bodies in line with option B.
Harmonised standards would continue to play a role: Harmonised standards would have a new role because the technical specifications adopted by the EC would partly refer to such standards, e.g. to the test methods contained in the standards. Other content of the harmonised European standards could simply be integrated into HTS.
Option E – Repealing the CPR
The CPR would be repealed without any replacement. This would mean no harmonised standards containing common technical language and no more CE marking for construction products. EU member states would have to rely on mutual recognition.
Annex III of EC report
The Annex III of the EC report highlights a number of issues regarding the current HTS system, for instance that harmonised standards are not translated into all EU official languages, the use of undated and withdrawn normative references bring legal uncertainty, the lack of participation of SMEs, the high number of standards rejected for citation and the CEN refusal to establish internal legal control.
Questionnaire on the revision of the CPR
Proposed Agoria position:
Manufacturers want to take advantage of the European market. CE marking allows the free circulation of products and complements (national) certification schemes. The New Legislative Framework was invented to solve the lack of technical knowledge of the legislator. As products are rapidly changing, putting the product characteristics in legislation, this would require a frequent revision of the legislation. This is a lengthy process and often lagging considerably behind. It proves already very difficult to elaborate quality Standardisation Requests that consider all requirements of all Member States. This lengthy process will hinder innovation, cfr the EC proposal to revive old cited standards, thus bringing innovation to a stop. Although it seems appealing to the EC at first sight, to develop delegated acts with Harmonised Technical Specifications, this is not possible without a consultation of all stakeholders. So, why putting a new parallel system in place besides the already well organised standardisation system?
The option D1 "new legislative framework approach for product requirements" is the preferred option and should be developed further in detail. Only this option assures an uniform system across all directives and regulations. It also corresponds to a major understanding in the market.
The option D2 "technical specifications approach for product requirements" is not an option. The old approach was abandoned because it was impossible for the authorities to keep track of the technological evolution. Thinking that it's different now, is an illusion. Above, changing the requirements (legislation) is a lengthy process. And anyhow, stakeholder consultations must be held, so the involved stakeholders must be the same. But the flexibility will be lost. Alternatively, (EC) CPR experts could be actively involved in the standards' development process at all time, unlike the specific assessment moments actually.
Standards have also a function of transfer of knowledge. Stakeholders rely on standards as representing the state-of-the-art and collecting the latest knowledge in order to assure safe and comfortable products and installations. Standards brought welfare, health, safety and prosperous economic conditions. This is much more than the sole legal perspective the EC is chasing. Instead of setting up a parallel system, the EC should invest much more in the existing system by bringing legal knowledge and resources for e.g. translations. I don't think CEN or the NSB will object the EC to provide translations in all languages (for free).
Undated references or references to standards which have been withdrawn or contradicting normative reference chains: dated references will freeze the system and will cause huge costs of revision of standards to assure the updated references. Above, the cost explosion might also be valid for certificates that have to refer to the current standard. This is a huge administrative burden for the society without added value. Above, this also causes legal uncertainty as a new standard with state-of-art technology might be out whereas the legal reference points to an obsoleted standard.
After all, at the moment the CEN-CENELEC system fails, mainly due to the constraints of the CPR and the interpretations of the EC.
Should you wish to express additional comments, please contact Dirk De Moor.