Construction Products

The Construction Products Regulation (CPR 305/2011/EU), published by the European Parliament on 9 March 2011, repeals the Construction Products Directive (CPD 89/106/EEC) and enacts stricter rules on the construction industry.

The main goal of the regulation is to further unify member states and create an environment of free trade without hindrance of national laws. Specifically, the new regulation aims to improve three areas.

• Clarification of the basic concepts and of the use of CE marking;
• Simplification of the procedures, so as to reduce the costs incurred by enterprises, in particular small and medium sized enterprises; and
• Increased credibility for the whole system.

The new requirements of the new regulation went into effect 20 days after publication (March 2011); however, articles 3 to 28, 36 to 38, 56 to 63, 65, 66, and annexes I, II, III, and V are not yet in force. The regulation completely replaced the construction products directive (CPD 89/106/EEC) on 1 July 2013.

As stated in the Regulation  in Article 2 of CPR 305/2011/EU, a construction product is defined as any product that is to be permanently placed into a construction work (building construction or civil engineering) which has an effect on the performance of the construction work.

The product can be in the form of a single product or a kit of products meant to be used in unison. There are 35 areas of classification for a construction work. All products are to be classified into one of the classifications and tested based on the requirements of each classification. The product must comply with the essential characteristics of a construction product.

Basic Requirements of a Construction Work
As specified in Annex I of the regulation, there are seven basic requirements for construction works:

• Mechanical Resistance and Stability: Construction works must be constructed in a way to maintain stability. The works must not pose a risk of collapsing or causing major deformations that would compromise other parts of the work.
• Safety in Case of Fire: The construction work must be able to sustain itself for a reasonable amount of time in case of fire, be able to contain the fire as much as possible, and to limit spread of a fire from other works. Occupants must be able to leave the construction works or be safely rescued.
• Hygiene, Health, and the Environment: Construction works must not pose a risk in the following ways: the release of toxic gases; emissions of dangerous substances into air or water; the release of radiation.
• Safety and Accessibility in Use: Construction works must not pose an unreasonable risk to such incidents including slipping, falling, collisions, burns, electrocution, explosions, and burglaries. Construction works must be accessible to people with physical disabilities.
• Protection against Noise: Construction works must be built in a way that limits noise for occupants. Noise levels must maintain a level that is not harmful to the health or safety of occupants. Occupants must be able to sleep, rest, and work in satisfactory conditions.
• Energy Economy and Heat Retention: Construction works shall be built in a way that minimizes heating, cooling, lighting, and ventilation, while maintaining comfort and safety of occupants. Construction works shall be designed and built to enable energy-efficiency.
• Sustainable use of natural resources: Construction works must be made with natural resource conservation in mind. Products should be able to be reused or recycled after the demolition of a construction work. The works must be durable and use environmentally friendly raw and secondary materials.

Compliance Testing
For products which are low-risk or custom-made, a simplified procedure has been developed. The new procedure assumes that testing has already been completed, and as such, testing does not need to be redone. “Specific Technical Documentation” (STD), or the test results from similar products, is to be submitted with a manufacturer’s justification for the use of the STD. For most construction products, harmonized standards will exist and conformity will be based on conformity to these standards.

The standards shall all have specific directions instructing manufacturers on which tests shall be performed by the manufacturer itself and which tasks must be completed by a notified body. In some cases, notified body intervention is mandatory, whereas in other cases, it is not necessary and the manufacturer can complete product testing itself.

Technical assessment bodies (TABS) are required for products which do not already fall into pre-existing standards or only partially fall into the scope of a standard. The manufacturer must appoint a TAB, provide information regarding the product. Then the TAB shall draft an assessment document (EAD), have the EAD submitted to the EU authorities. The product must then be assessed for performance of according to the conditions in the EAD.

Declaration of Performance
Manufacturers must draft an official document proving conformance with the following standards. This declaration shall put all responsibility for conformity on the manufacturer. The declaration of performance will include detailed information about the product including information about the manufacturer and a European European Authorized Representative. Information regarding the method of compliance testing is mandatory from July 2013. CE marking shall not be applied to a product until after all testing and drafting of the declaration of performance has been completed.

Evidently, non-compliant products enter the EU Market everyday – whether the brand owner knowingly does so or due to a lack of knowledge imparted from EU importers/distributors.

As there is no “approval” in the EU Market, Competent Authorities focus almost exclusively on conducting systematic surveillance of products which are being made available on the market. This can include pulling products off of shelves, stopping products at customs or even deploying bots online to identify non-EU based e-commerce shops which mention that they ship to the EU Market.

Should you choose to take the risk to ship product to Europe which has not followed the required path to compliance as detailed above, you should also be prepared for the consequences.

The main consequences include, but are not limited to:

• Being publicly reported to the RAPEX
• Warehousing Fees
• Requested Withdrawal
• Mandated Withdrawal
• Product Recall (from end-users and/or the market)
• Complete ban on marketing of the product
• Destruction of the product
• Fines
• Revocation of the CE Marking

Ultimately, the prescribed actions that are to be taken in the case that a product is found to be non-compliant will vary depending on the EU Competent Authority which identified the breach, the EU Member State, cooperation from the brand owner and the actions taken by the appointed Authorized Representative. Above all else, the professionalism and expertise of the appointed Authorized Representative in dealing with various Competent Authorities and handling such situations play a vital role in the successful recovery of your brand in the EU Market.

It is the responsibility of the manufacturer to continue to collect information related to use of their products after they have been made available to consumers as well as to ensure that they continue to be compliant as the legislation applicable to their products evolves. Post-Marketing surveillance activities include, but are not limited to:

• Staying up-to-date on new requirements or legislative changes,
• Continual updating of the technical file as modifications are made to the product,
• Reporting of any incidents related to the product use,
• Removal of non-compliant batches from EU economics operators and end-user,
• Keeping technical file available for 10 years after the last batch entered the EU market.

Working with a professional Authorized Representative will help to ensure that the necessary actions are taken to ensure continued compliance and proper post-market surveillance.