31/1/2018

Comments of the Netherlands on SCC document CPR 13-12rev1 ‘Way forward within standardisation for including other essential characteristics’

In reaction to CPR 13-12rev1 the Netherlands would like to repeat its previous comments on CPR 12-03:

CEN is an institution of the EC, according to the ECJ judgement of James Elliott. According to article 267 VWEU the EU has a responsibility for CEN’s task on the subject of essential characteristics based on the mandate. For this task the Commissions guidance is valid.

However, CEN can add additional characteristics which are not based on Annex ZA or the mandate. The judgements (James Elliott and Global Gardens) only apply to essential characteristics and not to additional characteristics. This has also been made clear in the opinion of the Advocate-General in the James Elliott case. The CPR itself does not include additional characteristics. Therefore, the responsibility of the EU is only to essential characteristics, and not to additional characteristics.

The EU intends to make sure that hENs are complete and contain the most current essential characteristics. When the essential characteristics are not secured by mandate it is our view that member states are obliged to secure the health and safety of the consumer or the environment themselves. Health, safety and the environment outweigh taking away trade barriers.

In conformity with article 8.4 and 8.5 CPR member states can have more strict requirements for specific utility goals for types of products, meaning requirements for the use of a type of product and not the technical requirements for the product. Additional characteristics complement the essential characteristics which leads to a uniform CE-marking. When the additional characteristics are removed from hEN (as stated in document 12-03) and in relation to the utility goals of health, safety and the environment essential characteristics in hENs are incomplete, member states will regulate the use of the type of product with stricter requirements. The view of the EC as explained in documents CPR 12-03 and 13-12rev1 will, in our opinion, lead to a useless CE-marking for the manufacturer. In such case there is no guarantee that the manufacturer can make the product available on the market unobstructed.

Concluding: the interpretation of the EC of the judgements is, in our view, incorrect. The judgements logically only contain information about the interpretation of essential characteristics, because the CPR itself does not include additional characteristics.

From a more general policy view standardisation is first of all a private instrument that can be used for public policy and legislation as well. This is also reflected in the joint initiative on standardisation. Cooperation between public bodies and standardisation bodies is important to make sure that public-private systems functions well. Therefore it is important that the private nature of standardisation and standards is respected by public bodies. The solution described in the unofficial EC document CPR 12-03 and in CPR13-12rev1 is in our opinion going too far and is not respecting the primarily private nature of standardisation and standards. Standardisation bodies shouldn’t be restricted in the scope of standards they produce.

In light of the abovementioned the Netherlands cannot agree with the Commissions proposals stated in documents CPR 12-03 and CPR 13-12rev1.

Update ontwikkeling in BWR 7                                                                                            Maart 2018

EOTA heeft een EAD voor hergebruikte baksteen opgesteld met daarin ook iets voor BWR7, te weten een EPD volgens EN15804.

De Commissie heeft tot op heden erg weinig willen doen aan BWR7, maar staan nu onder druk wel wat te gaan regelen.

Tegen EOTA is gezegd dat ze de EAD moeten aanpassen aan de nieuwe EN15804 die vanaf eind maart voor ENQ uitgaat. Waarschijnlijk zullen ze daarna de EAD wel (moeten) accepteren. Tegelijk wil de Commissie in 3 nieuwe mandaten die eraan komen (kozijnen, gips en isolatie) ook iets opnemen voor BWR7.

Waarschijnlijk is het de bedoeling dat de hele tabel met indicatoren voor Modules A1-A3+C+D onderdeel moet worden van de CE-markering. Verder is er nog niets doordacht, zo lijkt het.

Als het allemaal doorgaat, gaat het wellicht consequenties hebben, want dan mogen we wellicht alleen nog EPDs volgens CE/DoP communiceren, en geen Nederlandse specifieke EPD meer.

DB/SBK

CPR 13/12rev1

Way forward within standardisation for including other essential characteristics

In the aftermath of the reactions from various stakeholders, regarding the Standing Committee document 12/03, CEN and Commission services have been engaged in a constructive dialogue on the treatment of additional characteristics. During this process, a consensus has emerged on the outlines of our common approach how to tackle this matter in practical standardisation work, in accordance with the general principles set out in the document 12/03. The document at hand is thus presenting the way forward for harmonised standards under Construction Products Regulation (EU No 305/2011; the CPR), to be followed by the actors involved.

The dialogue has highlighted the importance of establishing a commonly agreed starting point for the standardisation actions. It thus merits being emphasised that CEN is in a position to include into harmonised standards (in Annex ZA) under the CPR only those essential characteristics which have a sufficient base in the mandating documentation (the respective mandate to CEN and the CEN answer to that mandate). CEN is not expected to transgress these lines in any way.

The Commission services have already, from September onwards, taken the first steps in the direction of the revision of the mandates now under the CPR, initially issued under the previous Directive (89/106/EEC; the CPD). Apart from other existing thrusts towards new or revised mandates, three product families and the respective mandates (M/101, M/103 & M/106) have been selected from the proposals brought forward by CEN for pilot examples of these actions. The collaborative analysis of these current mandates and harmonised standards based on them has been launched and the first results could be expected still this year; the intention is to involve the respective CEN TC, the industry concerned, Member States, and other relevant stakeholders in each of these actions.

This trend will be continued by further actions the Commission services have committed themselves to. The objective is not only to accommodate the general CPR –based approach, but also (and particularly here) to achieve the mutually agreed insertion of the previously additional characteristics into the mandate as essential characteristics, where appropriate owing to their relation to basic works requirements. This would entail the necessary authorisation for the establishment of classes and/or threshold levels, as well. As intended by the document 12/03, the objective would not be to delete or to remove these previous clauses, but rather to transform them so as to render them compatible with the CPR and the ECJ acquis. This will follow the necessary steps defined in the Regulation on European Standardization (EU No 1025/2012).

Before these actions mature and the new revised mandates are in place, pragmatic solutions may have to be developed in case new essential characteristics need to be included in the hENs. Moreover, the opportunities should be explored both in the area of publishing the OJEU references with restrictions and in the use of discretion in the context of OJEU citations (in the vein of the reference in the document 12/03 to “well-justified exceptions”). Obviously, the decisions taken should strongly depend on the circumstances in casu: however, both the Commission services and CEN are fully committed to close collaboration, in order to arrive to complete clarity on the bearing of these circumstances well in advance of the decisive stages of CEN decision-making on the content of future harmonised standards under the CPR.

CPR 12-03

Additional characteristics in harmonised standards

(“What kinds of performance should harmonised standards cover under the CPR and how?”)

CEN TCs have recently come more and more frequently up with the question about the introduction (or the retaining) of additional characteristics into harmonised product standards (hENs) under the CPR (305/2011/EU), not including them into Annex ZA. This has prompted the EC services not only to establish a coherent line of action on this matter, but also to bring forward the justifications for the choices made. The purpose of this document is thus to elaborate, commencing from the legal grounds the CPR –based framework currently in place provides, the operational way forward for developing hENs in the future. This action coincides with one of the foremost priorities agreed between CEN and the EC services, aimed at ensuring an ever higher quality of these most important harmonised technical specifications in use.

According to Article 2(4) of the CPR, “essential characteristics” are those characteristics of construction products which relate to basic requirements for construction works. The performance of construction products is always related to these essential characteristics (cf. Article 2(5)). When the harmonised technical specifications, notably harmonised standards, are prepared under the CPR, in accordance with Article 3(1) these basic requirements shall constitute the basis and in accordance with Article 3(2) the essential characteristics shall be laid down in relation to them.

The full and exhaustive nature of the harmonised system created in and by means of the CPR has also been confirmed in the European Court of Justice judgment on case C-100/13 (cf. para 62). Pursuant to this ruling, Member States are to apply the contents of this system and only these contents when setting requirements for the performance of construction products covered by harmonised standards. – In fact, these statements of the Court can and also need to be understood as necessary pre-requisites in the legal argumentation carried out for the judgment: were the CPR –based harmonised structure not considered exhaustive in this manner, the ECJ could not (at least not as convincingly) have arrived to the outcome presented in the ruling.

Pursuant to these cornerstones of the scope of the common technical language provided by the CPR, all performance aspects of construction products, relevant in relation to basic requirements for construction works, are to be dealt with in essential characteristics of these products, as presented in the harmonised standard. Obviously, this necessitates that the respective mandates also are up to par, i.e. contain the standardisation requests for all these aspects. Where this is currently not the case, the Commission is, after prioritizing with CEN, to launch immediate actions to remedy these shortcomings.

This argumentation does not leave any space in the CPR –based hENs for any additional aspects not included in these essential characteristics, but still having a bearing to basic requirements for construction works. This is even more certainly the case for the use of any marks or other “quality signs” for such purposes, already covered by the CE marking (cf. Article 8(3) and also FAQs 19 – 21 on our Europa website). When such a performance aspect is regarded as useful to be communicated by the manufacturer to the recipients of his products, he should be empowered to do so by the contents of the hEN, its Annex ZA, and thus enabled to use the declaration of performance for this purpose.

Voluntary or other additional aspects of hENs under the CPR cannot thus have any impact upon basic requirements for construction works: the conditio sine qua non for incorporating them in these standards is that they do not deal with either one of them. The frequently used example for such aspects is the durability of the colour of, let’s say, a brick: very interesting for the buyer aiming at incorporating the brick into his façade, but not having an impact on the fulfilment of basic requirements for construction works. Such features thus remain welcomed even in the context of the CPR –based hENs.

When setting requirements for the use of construction products in relation to any basic requirements for construction works, Member States authorities cannot refer to any such additional aspects outside the harmonised sphere (not included in Annex ZA). For the fluent functioning of the harmonised system currently in place, it is therefore essential that the regulatory needs of Member States, but also market needs, are timely and comprehensively conveyed to CEN, so as to be appropriately taken into account when preparing the hENs.

Operationally, this argumentation leads the EC services to request CEN not to introduce (or to include any longer) such additional performance aspects (“voluntary characteristics” et al) into harmonised product standards under the CPR. The EC services shall therefore not publish references in the OJEU to new hENs containing such additional elements outside Annex ZA. Apart from well-justified exceptions, this will also be the case for new versions of the existing harmonised standards, where such additional elements have previously been accepted.

The role and the status of harmonised standards (and harmonised technical specifications in general) is obviously one of the most important aspects to be revisited and potentially amended in the context of the possible revision of the CPR. The preceding argumentation and operational conclusion should therefore be seen as concerning the system currently in place, but not prejudging any future developments in any directions. More information about the alternatives under consideration is to be made publicly available when the roadmap for this possible revision is published in the coming weeks.

31/1/2018

Comments of the Netherlands on JIS document Subgroup 5 ‘CENTC approach to dangerous substances’/ SCC document CPR 13-13 ‘Current situation on how to treat Dangerous Substances in hENs’

Introduction

The Netherlands has notified Dutch legislation which covers BWR 3/DS (Dangerous Substances) for the use of stony building materials in housing and infrastructure. This legislation covers building materials that can be in contact with rainwater, surface water of groundwater and uses validated Dutch standards. Laboratories must be accredited by a specific document to get a notification by the Dutch government. The Dutch government and the Dutch producers of building materials have used the knowledge they have acquired over the years in their input on the development of the European standards and the discussions in the SCDS and SCC. It’s important that the transition from Dutch legislation to European legislation is as smooth as possible. For this transition not only the document that was published by JIS#5 and the document which was discussed in the SCC (CPR 13-13) is relevant, but also the discussion on the AVCP level. So two discussions are very important:

1. The discussions on the AVCP level for BWR3
2. And the discussion around the document which, to our surprise, was published by JIS#5 and CPR 13-13, which proposes to use the unvalidated TS documents in the harmonized product standards for BWR3. We would like to emphasize that our comments below are relating both to the quality of testing of building materials on dangerous substances AND to the legal aspect of implementing the resulting hEN’s in national legislation.

In both discussions the position of the Dutch government is that the notified Dutch legislation should be taken in account, as has always been common practice in the development of the European standards for the CPR.

Position of the Netherlands on the development of the standards for Dangerous Substances BWR3.

General considerations:

1. The Dutch government wants the notified Dutch Legislation to be seriously considered in the discussion. This is of the utmost importance to the Dutch environment and the producers of building materials that already participate on the Dutch market. These are not only Dutch producers.
2. The Dutch legislation has already been operational for more than ten years and has support from producers, consumers, builders and local governments. In this legislation all buildings are treated in the same way. Waste materials can be re-used as building materials, which fits in the principles of the Circular Economy.
3. Dutch producers fear a serious drop in the quality of the testing of their products and the products of other producers. In the Netherlands the testing for Dangerous Substances of building materials is not just one test but a process of multiple test during longer periods of time.
4. Because of the difference in heterogenity of Dangerous Substance in the different building materials the use of sound statistics is very important in the assessment of the characteristics of building materials for BWR3. In the report CEN/TR 16797-1:2015 of CEN/TC351/TG7 “Construction products: Assessment of release of dangerous substances — Guidance on the statistical assessment of declared values — Part 1: Principles and rules of application” the principles of statistics are made operational. This should made operational in the AVCP discussion and the adjustments of the mandates for BWR3.
5. The Dutch have the highest recycling rates for building wastes and there is almost no landfill by demolition waste. This is already functional part of the Circular Economy and in line with the proposal of the Commission for an Action Plan for a Circular Economy.
6. Reuse of waste materials and especially the acceptance by builders and consumers is facilitated by reliable and trustworthy testing and FPC procedures which are used by accredited laboratories and certification bodies with approved experience on DS.

Specific comments on documents JIS#5 and CPR 13-13:

1. The Commission should give a clear statement on the legal consequences of the proposal of JIS#5/CPR13-13.
   1. Is the Dutch legislation considered to be non-compliant if TS are put in the harmonized product standards? And should the Netherlands therefore consider an article 18 procedure?
   2. What will the AVCP level for TS in the product standards be?
   3. The publication of a TS is not enough for the withdrawal of a full national standard, but national legislation would still have to be changed because of the adoption of document CPR13-13. How does the Commission view this situation?
   4. The Vademecum on European Standardisation in support of Union legislation and policies says in:

2.8.3. Guidance for selecting normative references in harmonised standards

When selecting normative references for use in a harmonised standard, the ESOs should always try to achieve limited and controlled reference chains. Normative references form an integral part of a harmonised standard, but do not need to be harmonised standards or even requested by the Commission. For that reason, the ESOs should pay particular attention to evaluating the suitability of each normative reference, by considering its availability at national level, for example — including the possibility of having national language versions.

For harmonised standards, the following principles are important in order to avoid the risk of normative references leading to non-compliance with the initial request:

1) As a general rule, reference should be made to EN or ISO/IEC standards;

6) All normative references should be publicly available when a harmonised standard is published. If this is not possible, the relevant ESO should delay submission of the references of that harmonised standard to the Commission until they are publicly available;

2. The field of environmental testing is very complex, as the Netherlands has experienced in the past. To use draft standards as part of a system for implementing CE-marking would, in our opinion, harm the trust in the CE-marking. It contradicts the new “Goods Package” which aims to enhance the trust in CE-marking.

3. Is the Commission aware of the extra costs for producers of building materials when introducing new standards in a relatively short period of time? This will mean at least two transitions for all producers (from zero to TS and from TS to EN), and for the Dutch producers even three: from zero to NEN, form NEN to TS and from TS to EN. This will mean a lot of investments in measurements that potentially will be useless with every change in the standards.

Regarding the AVCP:

1. Will the Commission take in account that the Dutch have notified legislation which has a high “national AVCP level” whereas the other member states have not ?
2. When will there be a decision?