Proposal for a Regulation of the European Parliament and of the Council laying down harmonised conditions for the marketing of the construction products - Information from the Presidency

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1. Tekst

Delegations will find below an updated document reflecting the outcome of the Working Party

meetings and written comments received by delegations. Delegations' comments are reported in

footnotes.

Modifications to the body of the text are suggested by the Presidency and marked as bold,

strikethrough or underlined.

At this stage of the negotiations, the UK and MT, PL delegations maintain parliamentary scrutiny

reservations. All delegations maintain a general scrutiny reservation.

________________________

ANNEX

2008/0098 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

LAYING DOWN HARMONISED CONDITIONS FOR THE MARKETING OF THE

CONSTRUCTION PRODUCTS (Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95

thereof,

Having regard to the proposal from the Commission , 3

Having regard to the opinion of the European Economic and Social Committee , 4

Having regard to the opinion of the Committee of the Regions , 5

Acting in accordance with the procedure laid down in Article 251 of the Treaty , Whereas:

(1) The rules of Member States require that construction works are designed and executed so 6

as not to endanger the safety of persons, domestic animals and property.

All delegations: General scrutiny reservation on the text. 2

OJ C , , p. . 3

OJ C , , p. . 4

(not requested). OJ C , , p. . 5

OJ C , , p. . 6

DELETED: Use wording: "...domestic animals, property and to minimize the effects on the environment."

(2) Those rules have a direct influence on the requirements of construction products. Those requirements are consequently reflected in national product standards, national technical

approvals and other national technical specifications and provisions related to construction

products. By their disparity, those requirements hinder trade within the Community.

(3) Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction

products , aimed at the removal of technical barriers to trade in the field of construction products, in order to enhance their free movement in the internal market.

(4) In order to achieve that objective, Directive 89/106/EEC provided for the establishment of harmonised standards for construction products and provided for the granting of European

technical approvals.

(5) Directive 89/106/EEC should be replaced in order to simplify and clarify the existing framework, and improve the transparency and the effectiveness of the existing measures.

DELETED: Add a new recital: This Regulation applies without prejudice to the rules laid

down in Directives 92/42/EEC, 95/16/EC, 2000/9/EC, 2001/95/EC, 2004/22/EC,2005/32/EC and 2006/42/EC. DELETED: Insert new recital (1a) from existing CPD: "Member States are responsible for ensuring that building and civil engineering works on their territory are designed and executed in a way that does not endanger the safety of persons, domestic animals and property, while respecting other essential requirements in the interests of general well-being. Member States have provisions, including requirements, relating not only to building safety, but also to health, durability, energy economy, protection of the environment, aspects of economy, and other aspects important in the public interest".

DELETED: Insert the following recital "(2a) This regulation shall not affect the right of

Member States to specify the requirements they deem necessary to ensure that workers are protected when using products , provided it does not mean the products are modified in a way unspecified in this Regulation".

9 JO L 40, 11.2.1989, p.12. Directive as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OV L 284, 31.10.2003. p. 1.).

(6) It is necessary to provide for simplified procedures for drawing up declarations of performance in order to alleviate the financial burden of SMEs and in particular of micro-

enterprises.

(7) Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the

marketing of products and repealing Regulation (EEC) No 339/93, as well as Decision No

768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common

framework for the marketing of products, and repealing Council Decision 93/465/EEC provide for a horizontal legal framework for the marketing of products in the internal

market. Therefore this Regulation should take account of that legal framework.

(8) The removal of technical barriers in the field of construction may only be achieved by the establishment of harmonised technical specifications for the purposes of assessing the

performance of construction products.

(9) Those harmonised technical specifications should include testing, calculation and other means, defined within harmonised standards and European Assessment Documents (EAD)

for assessing performance in relation to the essential characteristics of construction

products.

(10) The methods used by the Member States in their requirements for works, as well as other national rules in relation to the essential characteristics of construction products, should be

in accordance with harmonised technical specifications.

(11) It is necessary to establish basic works requirements in order to provide the basis for the preparation of the mandates and harmonized standards and for the elaboration of the EADs

for construction products.

Was duplication with recital 24. 11

DELETED: Re-word to: "It is necessary to clearly define the scope of the Regulation and to establish ..."

(11a ) When appropriate, classes of performance in relation to the essential characteristics

of construction products should be encouraged to be used in harmonised standards,

so as to take account of different levels of basic works requirements for certain works

as well as of the differences in climate, geology and geography and other different

conditions prevailing in the Member States. The European standardisation bodies should be entitled to establish such classes in cases, when the Commission has not

already established them, on the basis of a revised mandate.

(12) Where an intended end use appropriate, requires minimum performance levels in relation to the any essential characteristics, to be fulfilled by construction products in

Member States, these levels should be established in the harmonized technical

specifications so as to take account of different levels of basic works requirements for certain works as well as of the differences in climate, geology and geography and other

different conditions prevailing in the Member States.

(13) The European Committee for Standardization (CEN) and the European Committee for Electrotechnical Standardization (CENELEC) are recognized as the competent

organisations for the adoption of harmonized standards in accordance with the general

guidelines for cooperation between the Commission and those two organisations signed on

28 March 2003.

DELETED: Suggested wording of (11a) could mix up basic works requirements (of a legal

nature) and classes of performance (used by manufacturers). The responsibility of the manufacturer should be mentioned when "classes of performance" are described. Cion: Does not see interpretation problem of the current wording in this regard, but flexible on the wording as such. DELETED: Scrutiny reservation. DELETED: Wording should mention role of CEN with regard to the easy application of standards.

DELETED: Sceptical, link to rec. (21a) is not clear. DELETED: "intended use" seems

better wording than "intended end use" throughout the Regulation, at least clarify in definitions, because IMCO prefers utilization of "generic use". Cion: "intended end use" is correct here and in line with the construction products directive. DELETED: Return to original wording "where appropriate..." DELETED: Wording is too exclusive, direct product requirements do not always refer to an intended end use.

(14) Those harmonised standards should provide the appropriate tools for the harmonised assessment of the performance in relation to the essential characteristics of construction

products. Harmonised standards should be established on the basis of mandates adopted by

the Commission, covering the relevant families of construction products, in accordance

with Article 6 of Directive 98/34/EC.

(15) The procedures under Directive 89/106/EEC for assessing performance in relation to the essential characteristics of construction products not covered by a harmonised standard

should be simplified in order to make them more transparent and to reduce costs to

manufacturers of construction products.

(16) In order to allow manufacturers and importers of construction products to draw up a declaration of performance for construction products which are not covered or not fully

covered by a harmonised standard, it is necessary to provide for a European Technical

Assessment.

(17) To provide the manufacturer and the importer with additional flexibility for the assessment of the performance of the construction product he intends to place on the market, he should

be entitled to request a European Technical Assessment also in a case in which the product

is covered by a harmonised standard.

(18) Manufacturers and importers of construction products should be allowed to request European Technical Assessments to be carried out for their products on the basis of the

guidelines for European technical approval established under Directive 89/106/EEC.

Therefore, the continuing validity of these guidelines as EADs should be ensured.

DELETED: Add: "The Commission should take any actions in order to extend the scope of

construction products covered by harmonised standards, in particular by the products for which ENs , ETAGs, CUAPs already exist and for the products with confirmed fitness to use in construction."

DELETED: Re-insert this recital and modify the end into "in a case in which the existing

harmonised standard cannot be fully applied to a specific product, e.g. in a case of innovative products."

DELETED: Also refer here to CUAPs, not only guidelines (twice).

(19) The establishment of draft EADs and the issuing of European Technical Assessments should be entrusted to Technical Assessment Bodies (TAB) designated by Member States.

In order to ensure that TABs have necessary competence for carrying out those tasks, the

requirements for their designation should be set out at Community level. Therefore it is

also necessary to provide for periodical evaluations of TABs by TABs from other Member

States. 19

(20) The TABs should establish an organisation to coordinate the procedures for the 20

establishment of draft EADs and for issuing of the European Technical Assessments.

(21) The placing on the market of construction products which are covered by a harmonised standard or for which a European Technical Assessment has been issued should be

accompanied by a declaration of performance in relation to the essential characteristics of

the product in accordance with the relevant harmonised technical specifications.

DELETED: Delete "draft" in order to avoid gaps of responsibility for EADs. 18

DELETED: Reword recital (19) as follows: "The establishment of draft EADs and the

issuing of European Technical Assessment should be entrusted to Technical Assessment Bodies (TAB). TABs are designated by Member States. In order to ensure that as having the TABs have necessary competence for carrying out those tasks, in line with the requirements for their designation should be set out at Community level. Therefore it is also necessary to provide Arrangements for periodical evaluations of TABs by TABs from other Member States are also provided for in the Regulation

." 19

DELETED: Insert new recital (19a): The TABs shall ensure that common European methods

already developed for the harmonized standards are used whenever possible in the assessment and verification of a product on the basis of an ETA. Cion: Substance is covered elsewhere, f. ex. in Annex II.

DELETED: Add: "Activity of this organisation should be supported from the Community's funds."

DELETED: Add: "In a case where the manufacturer or importer places on the market the

product designed and manufactured in a non-industrial production process and in response to a specific order, and intended to be installed in a single identified works, the manufacturer may choose to make a declaration of performance."

(21a) The European or Member State autorities at different levels have established and will 22

continue to establish demands in relation to the essential characteristics of construction products, either through legislation, court judgements or administrative

practices. In addition to these requirements of legal, judicial or administrative origin, also the minimum performance levels established in harmonised technical

specifications constitute requirements of technical origin.

(21b) Products made on the construction works site should not be considered falling under

the scope of a concept "supply of a construction product on the Community market".

Manufacturers incorporating their construction products in works should be allowed,

but not obliged, to declare the performance of these products in accordance with this

Regulation.

(22) The manufacturer should be entitled not to make a declaration of performance for those essential characteristics of construction products for which no requirements exist where he

intends to place the product on the market.

(23) When no requirements related to the essential characteristics of construction products exist where the manufacturer or the importer intends to place the product on the market, he

Some delegations: "demands" is not the best term to use here. "Elements" might be an alternative. Prdy/Cion: Wording should be broad in a recital to cover all that can be required, be that of technical or legal nature. 23

DELETED: Wording on court j`udgments and administrative practices is too broad; they

cannot at every sub-national level fix such requirements. DELETED: "court judgments" is too broad wording, it is sufficient to refer only to technical requirements in this recitals, the legal requirements are sufficiently dealt with in the articles themselves. DELETED: Replace "either through legislation, court judgements or administrative practices" by "through notified rules". DELETED: Streamline the wording of this recital.

DELETED: Insert new recital (21ab): The declaration of performance shall contain

information about the product-type for which have been drawn up, intended use of the construction product, the essential characteristics for which the performance is declared, content of dangerous substances in the construction product, reference number and date of the harmonised standard, the European Assessment document or the Specific Technical Documentation.

25 New suggestion from the Presidency. DELETED suggests: "Building elements made on the works should be excluded from the concept of ,,making available on the market". DELETED suggests: Products made and incorporated by the contractor on-site should be excluded from the scope of the CPR."

should be allowed to place such a product on the market without a declaration of

performance.

(23a) However, in order to ensure the efficiency of the harmonised technical specifications within their objective of removal of technical barriers, the declaration of performance

in accordance with this Regulation should remain the only means available for the

manufacturer or the importer to bring forward the performance of this product in

relation to its essential characteristics.

(24) It is necessary to provide for simplified procedures for drawing up declarations of performance in order to alleviate the financial burden of SMEs and in particular of micro-

enterprises.

(25) In order to ensure that the declaration of performance is accurate and reliable, the performance of the construction product should be assessed and the production in the

factory should be controlled in accordance with an appropriate system of assessment and 30

verification of constancy of performance of the construction product. Several systems could be chosen to be applied for a given construction product, in order to take into

account the specific relationship of some of its essential characteristics to the demands

of safety.

(26) Given the specificity of construction products and the particular focus of the system for their assessment, the procedures for the conformity assessment foreseen in the Decision

(EC) 768/2008, and the modules set out in that Decision, are not appropriate for those

products. Therefore, specific methods should be established for the assessment and

verification of constancy of performance in relation to the essential characteristics of

construction products.

(27) Due to the difference in the meaning of the CE marking for construction products, when compared to the general principles set out in Regulation (EC) No. 765/2008, specific

DELETED: Delete recital 23. Several delegations: Necessity of recitals 23 and 23a depends on final solution found for Article 4.

DELETED: Scrutiny reservation. DELETED: Delete (23a). 28

DELETED: Delete recitals 22-24. 29

DELETED: Insert here "or several systems" and leave out the whole addition in the end. 30

DELETED: Delete "and verification of constancy". This is included in "assessment". 31

DELETED: Scrutiny reservation on his addition. DELETED: Replace "demands of safety" by "basic works requirements". DELETED: Sceptical to the addition. Reservation.

provisions should be put in place to ensure the clarity of the obligation to affix the CE

marking to construction products and the consequences of that affixing.

(28) By affixing or having affixed the CE marking to construction product, the manufacturer should take responsibility for the conformity of that product with its declared performance.

(29) The CE marking should be affixed to all construction products, for which the manufacturer has drawn up a declaration of performance in accordance with this

Regulation. If a declaration of performance has not been drawn up, CE marking should not

be affixed.

(30) The CE marking should be the only marking which attests conformity of the construction product with the declared performance and with applicable requirements. Therefore, no

additional markings should be imposed to the construction products bearing it by the

Member States nor by public bodies or private bodies acting as a public undertaking, or

acting as a public body on the basis of a monopoly position or under a public mandate,

when the requirements for this use in that Member State correspond to the declared

performance.

(31) To avoid unnecessary testing of construction products, for which performance has already sufficiently been demonstrated by stable previous test results or other existing data, the

manufacturer should be allowed, under conditions set up in the harmonised technical

specifications or in a Commission Decision, to declare a certain level or class of

performance without testing or without further testing.

(32) To avoid duplicating tests already carried out, a manufacturer of a construction product should be allowed to use the test results obtained by a third party.

DELETED: "shall" instead of "should". 33

Alternative wordings suggested: "may not be affixed"/"shall not be affixed".

(33) To further decrease the cost of placing products on the market for micro-enterprises manufacturing them, it is necessary to provide for simplified procedures for assessment

and verification of constancy of performance, when the products in question do not imply

significant safety concerns., while complying with the applicable requirements of

whatever origin. Enterprises applying these simplified procedures should 36

additionally demonstrate that they qualify as micro-enterprises. Moreover, they 37

should follow the applicable procedures for verification of constancy of performance foreseen in harmonised technical specifications for their products.

(34) For individually designed and manufactured construction products the manufacturer should be allowed to use simplified procedures for assessment and verification of constancy of

performance, where the compliance of the product placed on the market with the

applicable requirements regulatory provisions can be demonstrated.

(35) It is important to ensure the accessibility of national technical rules, so that enterprises, and in particular SMEs, can gather reliable and precise information about the law in force in

the Member State where they intend to market their products. Member States should

therefore establish Product Contact Points for Construction for this purpose. In

addition to the tasks defined in Article 10(1) of established by the Regulation (EC) N 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down

procedures relating to the application of certain national technical rules to products

lawfully marketed in another Member State and repealing Decision 3052/95/EC, Product

Contact Points for Construction should therefore provide information also on rules

applicable to the incorporation, assembling or installation of a specific type of construction

product.

DELETED: Delete recital 33 (follows from opposition to Article 27). There could be

competition and safety problems arising if Article 27 is kept as proposed. Cion: Against deletion. Provisions take into account different situations of enterprises and different possibilities of third-party testing.

DELETED: Delete the words "of whatever origin".

DELETED: If this demonstration is a legal obligation, it should rather be inserted into Article 27. DELETED: Prefers enlargement of Art. 27 possibility to SMEs and consequential changes in Art. 27 and in recital 33.

DELETED: Scrutiny reservation on the word "follow". DELETED: Enlarge the possibility

of Art. 27 to all enterprises and find a simplified wording for recital 33. Cion: Application of Art. 27 should only be for micro-enterprises - required demonstration is easy and not administratively burdensome.

(36) For the purposes of ensuring an equivalent and consistent enforcement of Community harmonisation legislation, effective market surveillance should be operated by the Member

States. Regulation (EC) N°765/2008 of the European Parliament and of the Council of

[...2008] setting out the requirements for accreditation and market surveillance relating to

the marketing of products provides the basic conditions for the functioning of such market

surveillance, notably for programmes, financing and penalties.

(37) The responsibility of Member States for safety, health and other matters covered by the basic works requirements on their territory should be recognized in a safeguard clause

providing for appropriate protective measures.

(38) Since it is necessary to ensure throughout the Community a uniform level of performance 39

of bodies carrying out assessment and verification of constancy of performance of construction products and since all such bodies should perform their functions to the same

level and under conditions of fair competition, requirements should be set for performance

assessment these bodies seeking to be notified for the purposes of this Regulation.

Provisions should also be made for the availability of adequate information about such

bodies and for their monitoring.

(39) In order to ensure a coherent level of quality in assessment and verification of constancy of performance of construction products, it is also necessary to establish requirements

applicable to the authorities responsible for notifying the bodies carrying out these tasks to

the Commission and the other Member States.

(40) Since the objectives of the proposed action, namely to achieve the proper functioning of the Internal Market for construction products by means of harmonised technical

specifications for expressing the performance of construction products, cannot be

sufficiently achieved by the Member States and can therefore, by reason of scale and

effects, be better achieved at Community level, the Community may adopt measures, in

accordance with the principle of subsidiarity set out in Article 5 of the Treaty. In

accordance with the principle of proportionality, as set out in this Article, this Regulation

does not go beyond what is necessary in order to achieve those objectives.

DELETED: Delete recital 34 (follows from opposition to Article 28.) 39

DELETED: Delete "and verification of constancy".

(41) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the

procedures for the exercise of implementing powers conferred on the Commission .

(42) In particular the Commission should be empowered to establish conditions under which the declaration of performance may be available on a web site, to determine the period during

which manufacturers, importers and distributors should keep the technical documentation

and the declaration of performance available, to establish classes of performance in

relation to the essential characteristics of construction products, to establish the system of

assessment of performance and verification of constancy of the declared performance to be

applied to a given construction product or family of construction products, to establish the

format of the European Technical Assessment, to establish procedures for carrying out the

evaluation of TABs and to amend Annexes I to V. Since those measures are of general

scope and are designed to amend non-essential elements of this Regulation, inter alia by

supplementing it with new non-essential elements, they must be adopted in accordance

with the regulatory procedure with scrutiny provided for in Article 5a of Decision

1999/468/EC.

(43) Since a period of time is required to ensure that the framework for the proper functioning of this Regulation is in place, its application should be deferred with the exception of the

provisions concerning the designation of TABs, notifying authorities and notified bodies,

the establishment of an organisation of TABs and the establishment of the Standing

41 42

Committee.

OJ L184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L200, 22/7/2006, p.11). 41

DELETED: More explanations are needed on the future role of the Standing Committee.

DELETED: Insert clarifying recital: "This Regulation applies without prejudice to the rules

laid down in Directive...". The Directives in question are Directives 92/42/EEC, 95/16/EC, 2000/9/EC, 2001/95/EC, 2004/22/EC, 2005/32/EG, 2006/42/EC .

HAVE ADOPTED THIS REGULATION:

CHAPTER I

G ENERAL P ROVISIONS Article 1

Subject matter

This Regulation lays down conditions for the marketing of construction products by

establishing harmonised rules on how to express the performance of construction products in

relation to their essential characteristics and on the use 46 of CE marking on those products. 47

Several delegations: Clarify relationship to subsidiarity, notably with regard to the aim of enhanced use of construction products in practice. Cion: Subsidiarity is important, however what needs to be said in this context would be more appropriate in a Statement than in articles or annexes. Several delegations: Useful precisions on the CE marking should not lead to a complete overhaul of the existing system. 44

DELETED: Reflect the title of the legal act "marketing of construction products" somehow

in Art. 1. DELETED: Title should read "Subject matter and scope". Cion/DELETED: Possible in recitals, not best place in Art. 1. DELETED: The Regulation should clarify the relationship with the Mutual Recognition Regulation No. 764/2008 for those construction products not covered by harmonised technical specifications. DELETED: Title of the Regulation should be "....harmonised rules on the assessment and a declaration of the performance of construction products." Article 1 should read: "...lays down the conditions for placing construction products on the market and rules how to express the performance of construction products in relation to

..." DELETED : Refer to "performance" but also to "placing on the market" and "making available on the market".

Acceptance of IMCO 24; DELETED opposed. DELETED: Suggests "express and to assess the performance...". The obligations for economic operators and assessment bodies could also be mentioned as forming part of the scope. Cion: Impossible to include everything in Article 1. DELETED: Simplify to: "This Regulation lays down rules on the placing and the making available on the market of construction products in relation to their essential characteristics (rest deleted)." DELETED: Use wording "harmonised rules on the assessment and declaration of the performance of construction products...". 46

DELETED: Add "use and meaning of...". Cion: "Rules on meaning" does not make sense in

the chosen wording. DELETED: Add exemption for semi-finished or unprocessed products and re-used products from demolition buildings. Cion: Exemption would be too far-reaching.

DELETED: Insert something on the aim, e.g. removing barriers to trade, use or other

restrictions on the internal market DELETED: Use wording "essential characteristics, for the purpose of removing and avoiding related restrictions on making them available on the market and defines the specific meaning and the use of...".DELETED: Wording should be: "This Regulation determines the conditions for the marketing of construction products by laying down rules ..."

DELETED: Add "in order to let their marketing throughout the Internal Market."

Article 2

Definitions

For the purposes of this Regulation the following definitions shall apply:

1.

"construction product" means any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof so

that the dismantling of the product alters decreases the performance of the construction

works and the dismantling or replacement of the product constitute construction operations

with respect to the basic works requirements;

1a. "kit" means a construction product placed on the market by a single manufacturer as a set of at least two separate components that need to be put together to be installed

in the works" 51

2.

"construction works" means buildings and civil engineering works;

DELETED: Add: "This Regulation shall apply to construction products as listed in Annex Ia

(new)" . 48

DELETED: Add "...kit having essential characteristics and ..." DELETED: Reword to

read: "...any product or kit of products to be used jointly that form an integral usable unit which is produced and placed on the market for incorporation ....".

DELETED: Add "not including natural products and recycled products". Cion: Against exclusion via this definition.

DELETED: Delete the end "to be installed in the works". DELETED suggests slightly

different definition for "kit" (see MD-15). DELETED: Definition is too broad, needs to be adapted. DELETED: This regulation does not need a definition of "kit", but flexible.

DELETED prefers own suggestion (see 5449/1/09 REV 1). Most Member States against

wording of IMCO 41.

DELETED: Add new definition 1 (ab): "performance of construction work" means the

performance of the construction work in terms of one, some or all of the three sustainability categories which relate to construction works".

DELETED: Add "and other structures in accordance with relevant national regulations of Member States;"

3.

"essential characteristics" means those characteristics of the construction product which 53

relate to the basic works requirements; 54

3a. "requirements" related with essential characteristics of a construction product means:

a)

requirements of legal, judicial or administrative origin established at European or respective national level either through legislation or court judgements or

administrative provisions;

b)

requirements of technical origin represented by the minimum performance 57

levels established in harmonised technical specifications.

4.

"harmonised technical specifications" means harmonised standards and European 58

Assessment Documents;

DELETED: Supports substance of IMCO 26, but the notion of "where ....intends to place on

the market" is not acceptable, because in general there is only one Community market for the concept of "placing on the market".

DELETED: Add new definition "3 (a): "performance of construction products" means the

performance related to the relevant essential characteristics, expressed by value, level, class, threshold values or by a description."

DELETED: Scrutiny reservation. DELETED suggests: "Requirements" means requirements

on the basis of laws, regulations or administrative provisions of European or National origin relating de jure or de facto to construction products.

DELETED: Wording on court judgments and administrative practices is too broad; they

cannot - at every sub-national level - fix such requirements. Delete everything after "national level". DELETED: "of judicial origin" is too broad wording, it is sufficient to refer only to technical requirements in this definiton, the legal requirements are sufficiently dealt with in the relevant articles themselves. DELETED: Make clear that "respective national level" includes regional and local levels and that "administrative provisions" include those of public procurement contracts. DELETED: Definition should not start with a wording that could be interpreted as a restriction. DELETED: For (small a), take the wording of Dir. 98/34/EC. Cion: We inserted a definition of requirements in order to clarify concepts used in several articles, therefore we have to be as broad in the definition as possible. The split in (small a) and (small b) is not strictly necessary, we could also enumerate with an "or".

DELETED: Replace "harmonised technical specifications" by "harmonised standards". EADs cannot set minimum performance levels. Cion: Against replacement, text is correct.

DELETED: (small b) can be deleted as it is either covered through the mandates (for

standards) or explicitly in the relevant articles (dealing with technical requirements through an EAD). DELETED: Wording is too narrow, technical requirements cannot always be represented by minimum performance levels. DELETED: Wording should be "legal origin"

5.

"making available on the market" means any supply of a construction product for distribution or use on the Community market in the course of a commercial activity,

whether in return for payment or free of charge;

6.

"placing on the market" means the first making available of a construction product on the 60

Community market;

7.

"manufacturer" means any natural or legal person who manufactures a construction product or who has such a product manufactured, and markets that product under his

name or trademark;

8.

"distributor" means any natural or legal person in the supply chain, other than the manufacturer or the importer, who makes a construction product available on the market;
9.

"importer" means any natural or legal person established within the Community, who places a construction product from a third country on the Community market;

here as well.

DELETED: Replace EADs by ETAs. 59

DELETED: Exempt explicitly here or in definition (1) those products assembled or produced on construction sites for the own use (those products only mentioned in recital (21b).

DELETED suggests alternative wording: - means any supply of a construction product for

distribution or use on the Community market in the course of a commercial activity, whether in return for payment or free of charge. This excludes (a) any product which users transform on site for their own use in the context of their professional activity (b) any product manufactured on and/or off site and incorporated by the same manufacturer into a work without being placed back on the market. Cion: Sceptical. DELETED prefer following addition: "this excludes: "(a) any product transformed for incorporation into construction works on site without altering its performance in the context of a professional activity", (b) "any product manufactured on and/or off site by the same natural or legal person, who incorporates this product into the work of the site, for which it was manufactured".

DELETED: Such exclusion should go to a different article. DELETED: Wording of IMCO

32 is acceptable. Cion/DELETED: Against IMCO 32. Parts of the wording should at the margin be in a recital.

DELETED: Clarify definition further.

61 Text incorporates IMCO 33. DELETED: In order to mirror Art. 4 include here that a manufacturer can also place a product on the market. DELETED suggests: "manufacturer" shall mean any natural or legal person who manufactures a construction product or has such a product designed or manufactured, and markets that product under his name or trademark."

10.

"economic operators" means the manufacturer, the importer, distributor and the authorised 62

representative;

11.

"authorised representative" means any natural or legal person established within the Community who has received a written mandate from a the manufacturer to act on his

behalf for in relation to specifiedc tasks;

11a. "user" means any natural or legal person responsible, pursuant to the rules in force in the Member State in question, for the safe incorporation of a construction product

into construction works;

12.

"harmonised standard" means a standard adopted by one of the European standardisation bodies listed in Annex I to Directive 98/34/EC, on the basis of a request issued by the

Commission, in accordance with Article 6 of that Directive;

12a. "products which are not covered or not fully covered by a harmonised standard" means any construction product whose essential characteristics and performance cannot be

entirely evaluated according to an existing harmonised standard, because inter alia:

a)

the product does not fall within the scope of any existing harmonised standard; b) the product does not meet one or more technical definitions of characteristics included in any such harmonised standards;
c)

one or more essential characteristics of the product are not adequately covered by any such harmonised standards; or
d)

one or more test methods necessary to assess the performance of the product are missing or not applicable.

DELETED suggests: "economic operators" shall mean the manufacturer, the authorised representative, the importer and the distributor."

DELETED suggests: "authorised representative" shall mean any natural or legal person.... DELETED: Add: "with regard to the latter's obligations under this Regulation". 64

Several delegations against wording of IMCO 34; PT in favour. DELETED: Definition of "user" should be deleted, as this is Member States' competency. 65

DELETED: Add "of that Directive, the reference of which is published in the Official Journal of the EU".

DELETED: Reservation on this definition (which follows IMCO 25).

13.

"European Assessment Document" means a document adopted by the organisation of Technical Assessment Bodies;for the purposes of issuing European Technical

Assessments.

13a. "European Technical Assessment" means the documented assessment of the 68

performance of a construction product , in relation to its essential characteristics, in 69

accordance with the respective European Assessment Document.

14.

"accreditation" has the meaning assigned to it by Regulation (EC) No. 765/2008; means an attestation by a national accreditation body that a body to be authorised to carry

out third party tasks in the process of assessment and verification of constancy of the

declared performance in accordance with this Regulation meets the requirements for

this;

15.

"withdrawal" means any measure aimed at preventing the making available on the market of a construction product in the supply chain from being made available on the market;
16.

"recall" means any measure aimed at achieving the return of a construction product that

has already been made available on the market to the end user; 71

DELETED suggests to add: "...European Technical Assessments the reference of which is

published in the Official Journal of the EU." DELETED suggests: "...Technical Assessment Bodies which establishes the methods and the criteria for assessing the performance of a construction product which is not or not fully covered by a harmonised standard in relation to those essential characteristics which are related to the use intended by the manufacturer". Cion: Against regulating via the definition section. Most delegations prefer this text against IMCO 36.

DELETED suggests "performance of a construction product, carried out by a TAB on the

basis of the relevant documentation." DELETED: Further Alignment with Art. 21 possible: "construction product, not yet or only partly covered by a harmonised standard..."

DELETED suggests: "European Technical Assessment" means technical specification of the

construction product developed on the basis of a technical assessment performed by a Technical Assessment Body (TAB) in accordance with the methods and criteria adopted by the TABs acting jointly in the European organization of TABs organization, referred to in art. 20(2)." DELETED: Add "....European Assessment Document which ends with a documented statement". Most delegations against wording of IMCO 30; DELETED could accept it.

DELETED suggests wording from Reg. 765/2008. "accreditation shall mean an attestation

by a national accreditation body that a conformity assessment body meets the requirements set by harmonised standards and, where applicable, any additional requirements including those set out in relevant sectoral schemes, to carry out a specific conformity assessment activity".

DELETED suggests "recall" shall mean any measure aimed at achieving the return of a

17.

"product-type" means the set of representative performance level or classes of a construction product, in relation to its essential characteristics, produced using a given

combination of raw materials or other elements in a specific production process ;

17a. "intended end use" means one of the end uses of construction products as listed in 74

Annex VI of this Regulation or otherwise specified in the respective harmonised 75

specification.

18.

"factory production control" means the documented permanent internal control of the 76

production in a factory, in accordance with the relevant harmonised technical specifications;

19.

"micro-enterprise" means a micro-enterprise as defined in the Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium

sized enterprises ;

construction product that has already been made available to the end user." DELETED: Use wording "to the end user of the product".

DELETED: Replace "the performance" by "a variant", add in the end "...with a given stable

performance." DELETED: Use a different definition than set of performance levels, mentioning "variant" or else delete the whole definition as being not indispensable.

DELETED: Reservation, current definition is not clear.

DELETED: Way of defining "product-type" does not seem to fit to the content of the

provision in Art. 5. DELETED suggests: "...means a construction product produced using a given combination of raw materials or other elements in a specific production process and its corresponding performances " DELETED suggests following definition: "...means a construction product obtained using a given combination of raw materials or other elements, according to a specific production process which is representative of a given production and for which the performance has been declared."

DELETED: List in Annex VI might be too restrictive, prefer more generic definition. DELETED: Use wording "...construction products as mentioned in harmonised standards or

ETAs." Cion: List reflects current law and the words "or otherwise" avoid a too restrictive meaning. DELETED: Reference to Annex VI is too vague for a definition. DELETED: List in Annex VI is ok. DELETED suggests: "...means one of the end uses of construction products as listed in a relevant harmonised specification."

DELETED: Mention that manufacturer has to declare intended uses. DELETED: Mention a

link to testing, which depends of the intended use of a product. Cion: These issues are covered in the technical specifications or harmonised standard themselves, no need to repeat these facts in the definition.

DELETED: Use wording "product and production in a factory". DELETED: Use wording

"production of the product in a factory." DELETED suggests: "the documented permanent internal..." Most delegations against wording of IMCO 40.

OJ L 124, 20.5.2003, p. 36. DELETED: Delete the definition, against special provisions for

20.

"life cycle" means the consecutive and interlinked stages of a product life, from raw 78

material acquisition or generation from natural resources to final disposal. 79

micro-enterprises only.

DELETED suggests: "through the use of the product to final disposal." 79

DELETED: Add definitions of "Declaration of performance", "national marking", "technical

documentation", "expected life", "harmonised standard". Cion: Unnecessary, description in following articles is sufficient. DELETED: Add definitions on "Performance" DELETED: Add "requirement", DELETED: Add "Technical documentation" and "Conformity".

DELETED suggests: "notified body" means testing laboratory, inspection body or

certification body notified the Member State to perform tasks related to the assessment and verification of constancy of performance of construction products." DELETED suggests: "notified body" means a body notified by Member States for tasks relating to the assessment of constancy of performance, according to the provisions laid down in the harmonised standards or the European technical assessments. DELETED suggests: "notified body" means a performance assessment body which has been notified in accordance with Art. 29". In this context also see IMCO 37 which is however rejected by most delegations.

DELETED: Add definitions on "construction operations", "individually manufactured

products" "applicable attestation". DELETED: Add definition of "conformity marking".

DELETED: Add "performance assessment body". DELETED suggests: "performance

assessment body" means an organisation with the competence to carry out one or more of the functions described in Annex V.2. DELETED: Suggests definition for "component" - means a product which, when combined with one or more other products, makes up a kit. A component may be a construction product but this is not necessary for it to be considered as part of a kit. DELETED suggests a definition for "innovative product" - means any construction product whose performances cannot be assessed within the framework of a harmonised standard where one of the following conditions is met:(a) the product is not covered by, or does not correspond to the definitions of, a harmonised standard; (b) one or more envisaged generic uses of the product are not satisfactorily covered by a harmonised standard;(c) one or more the testing methods envisaged by a harmonised standard and necessary for assessing the performance of the product are inadequate or missing;

DELETED: Add: "expected life", "working life", "product life", DELETED: Add "service

life". DELETED: Add definition for "technical assessment body" and "class of performance". DELETED suggests: "Technical assessment body" means a body designated by Member States for issuing European technical assessments." DELETED suggests: "Technical assessment body" means a body designated by a Member State to participate in the development of European Assessment Documents in the product areas for which it has been designated and to carry out assessments and issue European Technical Assessments in those product areas." DELETED suggests "class of performance" means a range of performance values between specified limits. It may apply to individual characteristics or combinations of characteristics. DELETED add definitions for: "without testing", "without further testing", "family of construction products", "levels of performance", "horizontal notification" , "restriction of making available on the market". DELETED: Add definition of STD. DELETED: Add definition of "basic works requirements": - "Basic works requirements" are given to enable determination of the essential production characteristics of

Article 3

Basic works requirements and essential product characteristics

1.

The essential characteristics of construction products shall be laid down in harmonised 81

technical specifications in relation to the basic works requirements which are set out in 82

Annex I.

2.

The scope of the basic requirements covered by this regulation is set out in Annex I .

construction products. DELETED: Keep definitions as close as possible to horizontal Regulation, notwithstanding certain necessary adaptations.

DELETED: Delete "of construction products" as being redundant. 81

DELETED: Clarify in the text who is responsible for essential characteristics and

harmonised technical specifications. DELETED: Clarify the different set of documents when compared to Construction Products Directive.

DELETED: Use longer wording in Art. 3 or else shift the whole text to Article 4 (3). Cion:

Reservation. DELETED: Add: "set out in Annex I and, if applicable, in relation to other requirements for making available construction products on the market". DELETED: Use wording: "in relation to requirements existing in the EU or Member States in the field of the basic works requirements..."

CHAPTER II D ECLARATION OF PERFORMANCE

AND CE MARKING Article 4

Conditions for drawing up declaration of performance

1.

When placing a construction product on the market the manufacturer or the importer when placing a construction product on the market shall make a declaration of

performance if the following conditions are met:

DELETED: Refer to marketing of products in the title. 84

New suggestion by DELETED Presidency (MD-17) from 6 February 2009.

Principal positions by delegations expressed in numerous written contributions and at Working Party meetings: Delegations that can accept that the declaration of performance should be mandatory: DELETED

These delegations could consequently accept the following text discussed under DELETED Presidency: "(1) The manufacturer or the importer when placing a construction product on the market shall make a declaration of performance if one of the following conditions is respected are met: (a) the construction product is covered by a harmonised standard, (b) a European Technical Assessment has been issued for that product. (2) (deleted). (3) (unchanged)." Of these, DELETED have also transmitted own suggestions. Delegations that cannot accept that the declaration of performance should be mandatory and would consequently support only the current Presidency text or their own written suggestions: DELETED.

Delegations that in spite of certain preferences and own suggestions could in the end accept both of these options: DELETED.

(a) the construction product is covered by a harmonised standard, or a European 85 8687

Technical Assessment has been issued for that product ; and 88 89

(b) the requirements in relation to essential characteristics of that product exist where the manufacturer or importer intends to place the product on the market.

The manufacturer or the importer may make a declaration of performance where the

requirements referred to in point (b) do not exist.

DELETED: Align with Article 5 (2) in replacing "ETA" by "EAD or STD". DELETED:

Clarify situation when issuing of the ETA was voluntary. DELETED: Use wording: "the construction product or the product family is covered by a Commission Decision on the system of assessment and verification of constancy of performance, and". This suggestion would ensure obligatory character of DoP when a harmonised standard or EAD exists.

DELETED: Use wording: "construction product belongs to a family covered by...".

DELETED: Use wording "...has been issued on his request for that product". 87

DELETED: ETA gets a too central place in this article, cannot be understood as obligatory. DELETED: Reference should be to EAD. 88

DELETED: Use wording "mandatory requirements in relation..." DELETED: Use wording

"national requirements". Cion: Not possible. DELETED: Delete "the"; add: "essential characteristics of that product, or in relation to the basic works requirements which are set out in Annex I, exist..." Cion: Sceptical to such a wording.

DELETED: Legal consequences are unclear, if the requirements do not exist. DELETED:

Use wording "...exist at least for one possible use of the construction product where the manufacturer..." DELETED: Add "exist for the intended use where..." DELETED: 4 (1) (b) should read: "Requirements of technical origin established by Member States represented by minimum performance levels for essential characteristics as established in harmonised technical specifications.

DELETED: Whenever there is a harmonised standard, an EAD or STD, the DoP should be

obligatory. Flexibility for manufacturers could be regulated via Art. 26-28. DELETED: Avoid parallel system of products without CE-marking and DoP but legally on the whole Community market and others with CE-marking and DoP. DELETED: Delete this subparagraph.

1a. By way of derogation from paragraph 1, the manufacturer may replace the declaration of performance with a notice that the construction product may only be

used for purposes not subject to any requirements where its final end use will take place.

2.

The declaration of performance referred to in paragraph 1 shall cover at least the essential characteristics for which requirements referred to in point b of paragraph 1 exist where the

manufacturer intends to place the product on the market. The declaration of performance referred to in paragraph 1 shall also contain a

statement that the construction product may be used for any given purpose only if the

declared performance corresponds to the requirements in place for this use of the

product. 94

3.

Member States shall presume the declaration of performance drawn up by the 95

manufacturer or the importer to be accurate and reliable.

DELETED: Clarify difference between "final end use" and "end use". DELETED suggests

addition: "By way of derogation from paragraph 1, the declaration of performance may be made for a product designed and manufactured in the non-industrial production process and in the response to a specific order, and intended to be installed in a single identified works".

DELETED suggests:(similar to the substance of IMCO 32): 1a. By way of derogation from

paragraph 1, the manufacturer may not make a declaration of performance for construction products covered by a harmonised standard or for which a European Technical Assessment has been issued :which users transform on site for their own use in the context of their professional activity;which are manufactured on and/or off site and incorporated by the same manufacturer into a work without being placed back on the market.

DELETED: Reword to "...for which requirements in a Member State in which a product is

made available exist. and other essential characteristics required for obligatory declaring in accordance with harmonised technical specification used."

DELETED: Shift this sub-paragraph to Annex II. 94

DELETED: Presumption cannot be the correct word here, especially since market

surveillance authorities are unable to check every possible intended use. It was impossible to maintain the prior testing under the notion of "fit for intended use" in Spain after Cion's intervention. Cion: Presumption does not change responsibilities here.

DELETED: Suggests "...shall presume the values, levels or classes of the declaration of performance ..." DELETED: Add language provision. Cion: Unnecessary, covered by horizontal Regulation.

Article 5

Content of the declaration of performance 97

1.

The declaration of performance shall express the performance of construction products in relation to the essential characteristics of those products in accordance with the relevant

harmonised technical specifications. 99

The declaration of performance shall be the only means available for bringing

forward the information about the performance of the construction product as

concerns the essential characteristics covered by the respective harmonised standard

100

or the respective European Technical Assessment.

96 See also alternative suggestion in Presidency paper MD-11 (not preferred by DELETED, but preferred by DELETED.) Solution/preferences are directly linked to position to Article 4. 97

DELETED: Shorten to "...shall express the essential characteristics of construction products in accordance..."

DELETED: Add "or the Specific Technical Documentation" (as originally proposed in Presidency paper from 10 December). DELETED: Revert to original Cion proposal for 5 (1).

DELETED: Specify, to which harmonised technical specifications reference is made. Cion:

If a harmonised standard exists, there are no different ways on how to do a DoP. A new recital might be possible which would point out that when harmonised standards are used as reference, then a DoP should be the only means to show conformity with this harmonised standard. Prsdy: Harmonised technical specification is defined in Art.2.

DELETED: Add: "Performance concerning other characteristics may also be included in the declaration of performance".

100

DELETED: Against the addition, duplicates Art. 7 and is not at the correct place in this

article. DELETED: Addition is unnecessary. DELETED: Addition is misleading, sometimes more information is necessary for a user.

101

2.

The declaration of performance shall contain in particular the following information: 102

103

(a) the product-type for which it has been drawn up; 104

(b) the list of the essential characteristics of the construction product covered by a 105

harmonised standard or the EAD for which the performance is declared, and the 106 107

levels or classes of that performance, 108

101

DELETED: Text does not sufficiently cover the case where one single innovative

characteristic of a product is not covered by a harmonised standard and the producer does not request an ETA. Point (ba) would become unnecessary, if DELETED suggestion for Article 4 is integrated. DELETED: Against wording "all the essential characteristics. DELETED: Point (ba) could be shortened, if (b) is phrased in a clear manner. DELETED: Specify which persons are entitled to sign the DoP. DELETED: Mention "the proper installation of the product". DELETED: Simplify to "The declaration of performance shall be prepared according to and contain the information set out in Annex III (rest deleted)."

102

DELETED: Use wording: "any requirement for any intended use...", alternatively say

"should cover all essential characteristics, indicating either the performance determined according to the harmonised technical specification or the fact, that no performance has been determined." DELETED: All minimum requirements should at least be mentioned on the DoP, although manufacturers may of course depart from a harmonised standard in certain parameters.

103

DELETED/Cion: Keep original wording "product-type". Several other delegations:

"product".

104

DELETED: Add "product or product-type..." DELETED: Add: "...of the construction

product covered by a harmonised standard, EAD or STD and the characteristics for which..."

105

DELETED : Use wording "laid down in the harmonised technical specification".

DELETED : Delete "or the EAD".

106

DELETED : "declared values, levels or classes..." DELETED : Add: "...of that

performance, if relevant." Cion: Flexible to these suggestions. DELETED : Add also the reference number of the notified body or the TAB (where relevant). DELETED : Wording should be "... for which the performance is declared, and their values, levels or classes of that performance;"

107

DELETED : Mention certificates, protocols, tests, etc. Cion: Does not add much to

traceability. DELETED : Delete "if defined". DELETED : Harmonise Art. 5 with Art. 4 regarding the conditions for a DoP.

108

DELETED : Add "Where no requirement relating to the essential characteristics exists where

the manufacturer or importer intends to place the product on the market, the manufacturer shall either declare performance or mark the product `NPD'(No Performance Determined)."

DELETED : Supports this addition, alternatively add: "For the essential characteristics that

do not refer to Article 4 (2), the manufacturer or importer shall either declare performance or mark the product 'NPD' (No Performance Determined). In any case, a list of all characteristics should be included in the DoP. Prefers wording of 12287/3/08 REV 3. (supported by DELETED)

109

European Assessment Document or the Specific Technical Documentation, which 111 112

has been used for the assessment of each essential characteristic. (ca) where applicable, the reference number of the Specific Technical

Documentation used and the requirements the manufacturer claims the product complies with;

113

(cb) where applicable, the intended end use of the product, in accordance with the

harmonised technical specification used.

114

115

3.

The declaration of performance shall be drawn up using the model set out in Annex III.

109

For Legal Linguists: "Reference number" should read "Referenznummer" or

"Bezugsnummer" in German (throughout).

110

DELETED: Replace "EAD" by "ETA" Cion: Reservation.

111

DELETED: Add: "...for the assessment and the related declaration of performance of

each..." DELETED: Reword the whole (c) and add new (d) and (e): "(c): the reference number of the harmonized standard or the European Technical Assessment which has been used for the assessment of the essential characteristics. (d) on the STD, if such has been used; (e) the generic use of the product, in accordance with the harmonised technical specification used, when applicable. DELETED: Clarify in the wording that EAD/ETD can always be requested, even in the absence of a harmonised standard. Cion: Agrees with the substance, but no need to change the text.

112 DELETED: Add new (xx): "any other information where applicable and deemed relevant." 113

DELETED : Leave mentioning of STD in (c), no reason to single it out. DELETED: Delete

(ca). Cion: No, it is a useful addition, explains in which circumstances the manufacturer has made use of this simplified procedure.

114

DELETED suggests, supported by DELETED : Add: (d) information about the content of

dangerous substances as described in Annex xxx (new). The DELETED suggestion is similar to an IMCO amendment. Cion/DELETED: Sceptical to this addition, this would go beyond essential characteristics or the substance would already be covered in point (b) or in REACH.

DELETED: Reservation on this addition, depending in particular on the content of the new

Annex. DELETED: Could accept the spirit of the suggestion, but prefers referring to "information required by other Community legislation". DELETED: Could accept the

DELETED suggestion but only if indication of substances is required when surpassing

certain thresholds. DELETED : DELETED suggestion is not harmful, but normally this is covered by national requirements based on the BWRs.

115

DELETED: Add new para. 3: "The level of seniority of the signatory is sufficient for

engaging the manufacturer, the importer or the distributor." DELETED: Revert to Cion proposal for the whole of Article 5.

4.

The declaration of performance shall be translated into the language of the

languages required by the Member State in which market the product is placed or

116

made available. Article 6

Form of the declaration of performance

117

1.

A copy of the declaration of performance shall be supplied with each product which is made available on the market.

118

However, where a batch of the same product is delivered to a single user, it may be accompanied by one single copy of the declaration of performance.

The declaration of performance shall be supplied into the language or languages

required by the Member State in which market the product is placed or made

119 120

available. 121

2.

The copy of the declaration of performance may be supplied by electronic means only with the express agreement of the recipient. 122

116

DELETED: Paragraph can be deleted at this place, covered elsewhere.

117

DELETED: Use wording "...each construction product placed on the market in accordance

with Article 4..." DELETED: A central database of declarations might be convenient. Cion: Sceptical to both ideas. DELETED: Reword first sub-paragraph into: "A copy of the declaration of performance shall be supplied with each construction product referred to in art. 4(1). This declaration shall be made in a language understandable for the users in the Member State in which this products is to be made available".

118 DELETED: Replace "delivered" by "supplied". Cion: Flexible. 119

Wording taken over from horizontal decision "R 10".

120 DELETED (supported in principle by DELETED): Modify the language provision: "A copy

of the DoP, drawn up in the official languages of the Member State where the product is made available and in a form easily understandable by users, shall be supplied ..." DELETED: Refer to "official language(s)" instead. N.B. Language provision did not appear in MD-11.

121

DELETED: Add "new approach" provision: "A copy of the DoP shall be made available to

the relevant competent authorities and to economic operators in the supply chain".

122

DELETED: Delete "only with the express agreement of the recipient." DELETED: Delete

the whole para. DELETED: Reword to say: "... by electronic means of in written form. On request of the distributor or user the declaration should be supplied in written form."

123

3.

By way of derogation from paragraphs 1 and 2, the content of the declaration of 124

performance may be made available on a web site in accordance with conditions established by the Commission.

Those measures, designed to amend non-essential elements of this Regulation, by

supplementing it, shall be adopted in accordance with the regulatory procedure with

125

scrutiny referred to in Article 51(2). 4. [...]

123

DELETED: Delete (2) and replace this sentence by: "The content of the declaration of

performance might be made available on a website in accordance with Annex 6." DELETED : Delete "and (2)". Cion/DELETED : Sceptical, the final users often need a copy. Several delegations: Delete "the content of". DELETED : Delete para. 3.

124

DELETED : Simplify to: "...declaration of performance may be supplied in accordance...".

Comito-logy will set the details anyway. DELETED : Specify more conditions for web-site provisioning. DELETED : "...web-site, if a precise web-address is included on the CE-mark itself in accordance..."

125

DELETED : Link to the regulatory procedure with scrutiny could be phrased in a different

way; "measures" is not correct, rather "conditions". N.B.: One could delete this identical paragraph in the articles and mention instead Articles 6 (3), 10 (2), 18 (2), 19 (2), 21 (2) and 24 (2) in Article 50 (1).

Article 7

Use of CE marking

126

1.

The CE marking shall be affixed only to those construction products, for which the 127

manufacturer or the importer has drawn up a declaration of performance in accordance 128

with Articles 4, 5 and 6.

If a declaration of performance has not been drawn up by the manufacturer or the

importer in accordance with Articles 4, 5 and 6, the CE marking may not be affixed to

129

construction products.

126

DELETED : Delete "only".

127

DELETED : Use wording "for which there are harmonised specifications."

128

DELETED : Replace by "products for which a declaration of performance has been drawn

up in accordance..." DELETED : Clarify situation of CE marking where DoP is not mandatory. DELETED : Either add definition of CE marking in Art.2 or refer to New Approach regulation or define the concept here. DELETED : Clarify the situation with regard to other legal acts requiring marking, e.g. the revised eco-design directive, here or in Art. 4. DELETED : If the CE marking is indeed obligatory, the Regulation should describe conformity assessment in much greater detail. A substantial link to Art. 30 should be made in the wording. Cion: This article is procedural in nature, if something is not described here, but in other parts of Community harmonisation legislation or in national legislation, these other provisions continue to apply. However, Article 4 makes clear that if the DoP is mandatory, the CE marking is the logical consequence. DELETED suggests: "The CE marking shall be affixed only to those construction products, for which the manufacturer has drawn up a declaration of performance in accordance with harmonized technical specifications"."

DELETED : Revert to original Cion text.

129

Several delegations: Delete sub-paragraph as repeating the same substance. DELETED :

Instead of deletion see wording in MD-15.

130

By affixing or having affixed the CE marking the manufacturer or the importer shall take responsibility for the conformity of the construction product with all applicable

requirements laid down in this regulation and in other relevant acts of Community

131

harmonisation legislation providing for its affixing the declared performance.

2.

For any construction product covered by a harmonised standard, the CE marking shall be the only marking which attests conformity of the construction product with the

declared performance in relation to the essential characteristics covered by this

132

standard.

130

DELETED : Use wording "the manufacturer, and if applicable, the importer shall..."

131

DELETED : Suggests wording: "...at the minimum with the declared performance."

DELETED /Cion: Against wording "all applicable legislation" or "all applicable

requirements" (as in MD-11). The other legislation for affixing the CE marking applies anyway and has to be respected as well. DELETED : Keep wording "all applicable" as it is, against wording in MD-11. DELETED suggests the following wording: "By affixing or having affixed the CE marking the manufacturer or the importer shall take responsibility for the conformity of the construction product with the declared performance. When products are subject to other acts of Community harmonisation legislation which also provide for the affixing of the CE conformity marking, the latter shall indicate that the products are also presumed to conform to the provisions of those other acts."

132

DELETED : Delete "only", thus leaving "...shall be the marking with attests..." In case of

Art. 4 (1)(b) local requirements could exist and a CE marking would not be obligatory. Cion: Relationship is clear, on voluntary markings mutual recognition applies. DELETED : Start Art. 7 (2) and 7 (3) with the clarifying clause "When the conditions of Art. 4 (1) are met, ...". Cion: Art. 30 of horizontal Regulation is clear enough. Performance is indicated by the CE marking, not by any other marking, market-driven markings fall out of scope of this Regulation and it is not necessary to mention or regulate them here. DELETED suggests: The CE marking shall be the only marking of conformity indicating that the construction product is in conformity with Community harmonisation legislation and attests in particular conformity of the construction product with the declared performance in relation to Articles 4, 5 and 6. Presidency suggested in MD-11 "For any construction product covered by a harmonised standard, the CE marking shall be the only marking which attests conformity of the construction product with the declared performance in relation to the essential characteristics of this product covered by the standard." (DELETED against; as ETA is not mentioned properly; DELETED : original Cion wording was better.) Art. 7 (2) would have to be adapted if Presidency proposal for Article 4 (MD-17) would be accepted.

In this respect, Member States shall not introduce national measures or shall withdraw 133 134

any references in national measures to a conformity marking attesting conformity 135

with the declared performance other than the CE marking.

3.

Member States shall not prohibit or impede, within their territory or under their responsibility, the making available on the market or the use of construction products

bearing the CE marking, when the declared performances correspond to the

136

requirements for this use in that Member State correspond to the declared performance.

133

DELETED T: Re-introduce the words "national measures".

134

DELETED : Use wording "to an obligatory marking..."

135

DELETED suggest: "...references to an other conformity marking other than the CE

marking of construction products covered by CE marking." DELETED : Add "for harmonised legislation according to this Regulation" or "in accordance with Articles 4, 5 and 6" or a similar wording. (this could also be supported by DELETED ). DELETED : Use the wording "...conformity marking other than the CE marking, for the products covered by harmonised European standards." DELETED : Add simply "for products covered by this Regulation" (but could also support DELETED suggestion. Cion: Flexible. DELETED : Add "other than the CE marking except if the possibility is explicitly foreseen in the Directives on Public Procurement 2004/17/EC and 2004/18/EC and shall withdraw their provisions." DELETED : The DELETED problem with public procurement does not occur as long as national public procurement calls for tender use "or equivalent" for the markings mentioned and the underlying quality characteristics. DELETED : Wording of second subpara. of Art. 7 (2) diverts from the horizontal framework and needs more clarification with regard to its scope and aim. DELETED : Delete the whole para. 2, as the horizontal Regulation stays directly applicable. DELETED : Wording in MD-11 is not ok.

136

DELETED : Clarify whether subsidiarity allows that national measures prescribe certain type

of products for certain uses. Cion: Subsidiarity allows it; this has nothing to do with CE marking in this article. DELETED : Use wording "requirements for placing on the market and for this use..." Check whether use of requirements in MD-11 (Article 4) is consistent with Art. 7 (3) and 7 (4). DELETED : Add "...or to a lower level of performance. When in a Member State requirements exist, only construction products bearing CE marking with a declared performance, drawn up by the manufacturer in accordance with Articles 4, 5 and 6, higher or corresponding to that Member State requirements, may be made available on the market."

4.

Member States shall ensure that the use of construction products bearing the CE marking 137

shall not be impeded by rules or conditions imposed by public bodies or private bodies acting as a public undertaking, or acting as a public body on the basis of a monopoly

position or under a public mandate, when the declared performances correspond to the

138

requirements for this use in that Member State correspond to the declared performance. 139

Article 8

140

Rules and conditions for the affixing of CE marking

1.

The CE marking shall be subjected to the general principles set out in Article 30 of 141

Regulation (EC) N° 765/2008.

137 DELETED : Add "be impeded, if the requirements for that use in the Member State

correspond to the declared performance, by rules or conditions..." DELETED suggests: "...be impeded, if the characteristics laid down in the declaration correspond to the requirements for that use in the Member State, by rules...public mandate."

138

DELETED : Use wording "requirements for placing on the market and for this use...".

DELETED : Add a new paragraph as follows: "Member States shall undertake appropriate

measures to make sure that regulations applied on their territory concerning the design and erection of building works related to the construction products, are expressed in compliance with the essential characteristics included in the harmonized standards and European Assessment Documents."

139

DELETED : Add as a separate paragraph the wording from recital (10): The methods used

by the Member States in their requirements for works, as well as other national rules in relation to the essential characteristics of construction products, shall be in accordance with harmonised technical specifications. DELETED : Add "The CE marking shall be affixed by the manufacturer or the importer."

140

DELETED : Would prefer to maintain the current legal framework from CP Directive and

not the provision from the new horizontal legal framework. Prdy: See alternative for Article 8 in MD-11. DELETED : Keep wording of 5449/09, especially number of notified body.

141

DELETED : Add "Importers acting as mentioned in Art. 12 (2) shall affix the CE marking.".

DELETED : Would prefer a different design for the construction products CE marking, as

this regulation cannot cover all requirements for CE markings from all applicable legislation. The same design would thus lead to confusion with CE markings which indicate different things. Furthermore only the old format would ensure that performance values will immediately follow the marking.

2.

The CE marking shall be affixed visibly, legibly and indelibly to the construction product 142

or to its data plate. Where this is not possible or not warranted on account of the nature 143

of the product, it shall be affixed to the packaging or to the accompanying documents.

3.

The CE marking shall be followed by the two last digits of the first year in which it was 144 145

affixed , the name or the identifying mark of the manufacturer producer , the unique 146 147

identification code of the construction product-type, and the number of the 148

declaration of performance and the number of the notified body, if applicable.

142

DELETED : Replace "its data plate" by "a label."

143

DELETED : Define which accompanying documents are meant. Cion: This depends on the

product. No need to limit this to legally obligatory documents. DELETED : Add: "...and the manufacturer's or importer's web-site if the declaration is to be supplied in electronic form. Principles to create the unique identification code of the construction product are to be determined by the Commission in accordance with the regulatory procedure with scrutiny referred to in Article 51 (2)."

144

Several delegations: concern on interpretation of "affixed", prefer ''manufactured''. Cion:

explains concept as distinguished from marketing. DELETED : Use wording: "year of the date on the declaration of performance, the name..." DELETED : Keep "affixed".

145

DELETED : Reference to identifying mark is not practical. DELETED : Manufacturers

should be free to add more, so wording should be "by at least the two last digits..."

DELETED : Use wording "the manufacturer or the importer". DELETED : Use wording:

"identifying mark of the manufacturer and its web-site, when an electronic form of declaration is made available by internet, in accordance with Article 6 (3), and the unique identification code of the construction product-type and the number of the declaration of performance. The identification code and the declaration number shall be determined in accordance with the conditions established by the Commission. (Then add the usual "comitology with scrutiny"clause). (This suggestion in principle acceptable for DELETED ) DELETED : Unclear, who approves the identifying mark and which legal value it would have.

146

DELETED : Specify somewhere the details (or principles) of the unique identification code,

including a wording on data protection. DELETED : Clarify the relationship to traceability code of General Product Safety Directive. Details on the unique identification code could be set by the Commission via PRAC. DELETED : Clarify who is responsible for checking the uniqueness of the code. DELETED : In view of harmonisation, add more criteria for the unique identification code, maybe in an Annex. Currently, the code differs a lot from sector to sector. Cion: Uniqueness is necessary for traceability, some details may be regulated at Member State level. The unique identification code is not identical to the code mentioned in GPSD, other details could be regulated through Annex II. Against further additions in this article.

147

DELETED : "construction product", not "product-type".

148

DELETED : Add: "and where appropriate, the address of the web site where the declaration

of performance is displayed, and indications to identify the characteristics of the product on the basis of the technical specifications." DELETED : Instead of these additions take whole wording from horizontal Decision, Article R12 (3). DELETED : Against current addition.

149

4.

The CE marking shall be affixed before the construction product is placed on the market. It 150

may be followed by a pictogram or any other mark indicating a special risk or use. 151

149

DELETED suggests new para. (3a): "If a declaration of performance which has been drawn

up by the manufacturer in accordance with Articles 4, 5 and 6 contains no performance declared in relation with an essential characteristic, the CE marking shall be followed by the statement "No Performance Declared" into a language or languages required by the Member State on which market the product is placed or made available."

150

DELETED : Delete "or use". DELETED : Clarify, which circumstances "risk or use" refers

to. DELETED : Clarify whether national or European pictograms/marks are meant, as an alternative delete 8 (4). Cion: Art. 8 (4) should only clarify the relationship to eco-labels and similar marks (which are not conformity markings). No need to change the text.

151

FR Prsdy suggested (4a): The affixing to a product of markings, signs or inscriptions which

are likely to mislead third parties regarding the meaning or form of the CE marking shall be prohibited. Any other marking may be affixed to the product provided that the visibility, legibility and meaning of the CE marking is not thereby impaired. DELETED : Add to this suggestion: "These marks shall not impede or derogate the meaning and legal status of the CE marking. DELETED : Add new 8 (4b): "The CE mark shall include the name/reference number of the Notified Body (where applicable)."

Article 9

152

Product Contact Points

Each Member State shall ensure that the Product Contact Points established in accordance with

Regulation (EC) N°764/2008 also provide the information on any technical rules or regulatory

provisions applicable to the incorporation, assembling or installation of a specific type of

construction product in the territory of that Member State.

1.

Member States shall establish Product Contact Points for Construction pursuant to the provisions in Article 9 of Regulation (EC) No 764/2008 on their designation and

communication.

2.

The provisions of Articles 10 and 11 of the said Regulation shall apply to Product Contact Points for Construction, with regard to construction products.
3.

In addition to the tasks defined in Article 10(1) of the said Regulation, each Member State shall ensure that the Product Contact Points for Construction also provide the

information on any [technical rules or] regulatory requirements applicable to the

incorporation, assembling or installation of a specific type of construction product in

the territory of that Member State.

4.

Product Contact Points for Construction shall be independent of any body or organisation involved in the procedure for obtaining the CE marking.

152

DELETED : partial and/or specific reservations. DELETED : In para. 3 use wording:

"technical and administrative regulatory requirements" . Especially against para. 3 are:

DELETED . The other delegations prefer current Council text to IMCO 58, while DELETED could accept IMCO 58. First part of IMCO 57 acceptable to some delegations,

second part rejected by most delegations. If the text of para. 3 should basically remain unchanged, DELETED suggests to modify into "technical rules or requirements" in order to mirror definition of Art. 2.

CHAPTER III

O E O BLIGATIONS OF CONOMIC PERATORS Article 10

153

Obligations of manufacturers

1.

Manufacturers shall draw up the required technical documentation 154 describing all the 155 156

relevant elements related to the applicable attestation of declared performance. Manufacturers shall draw up the declaration of performance in accordance with Articles 4,

157

5 and 6, and affix CE marking in accordance with Articles 7 and 8. 158

2.

Manufacturers shall keep the technical documentation and the declaration of performance for the period determined by the Commission for each family of construction

products on the basis of expected life and the role of the construction product in the

159

works.

Those measures, designed to amend non-essential elements of this Regulation, by

supplementing it, shall be adopted in accordance with the regulatory procedure with

scrutiny referred to in Article 51(2).

153

DELETED : Clarify relationship of obligations for economic operators here and obligations

in the horizontal Regulation. DELETED : Refer frequently to the horizontal framework instead of repeating the obligations in Art. 10-15. DELETED : Specify sanctions for noncompliance by the manufacturer.

154

DELETED : Define the concept of "technical documentation" either in this article of in Art.

2.

DELETED : Define minimum content of the technical documentation and language requirements.

155

DELETED : Replace "all the relevant elements" by "all the elements".

156

DELETED : Use wording "applicable system of the assessment and verification of constancy

of the performance. DELETED : Clarify the difference between "declaration" and "attestation". DELETED : Use wording: "...related to the design, manufacturing, assessment and verification of constancy of declared performance.

157

DELETED : In order to be coherent with Art. 13 (2), add a provision that it is up to the

manufacturer or the authorised representative to draw up instructions and safety information.

158

DELETED : Clarify who will keep the technical documentation if the manufacturer is no

longer available e.g. in case of bankruptcy. DELETED : Add a wording on cases like bankruptcy or the ceasing to exist of firms.

159

DELETED : Specify the period better, "expected life" is not a well-defined criterion.

DELETED : Scrutiny reservation on the way to define the period, also relevant for Article

15.

160

3.

Manufacturers shall ensure that procedures are in place in order for series production 161

to maintain the declared performance. Changes in the product-type and changes in the applicable harmonised technical specifications shall be adequately taken into account.

Manufacturers shall, in all cases where appropriate, carry out sample testing of marketed

162

construction products, investigating, and, if necessary, keeping a register of complaints, of non-conforming products and product recalls and shall keeping distributors informed of

any such monitoring.

4.

Manufacturers shall ensure that their construction products bear a type, batch or serial 163

number or any other element allowing their identification, or, where the size or nature of the product does not allow it, that the required information is provided on the packaging or

in a document accompanying the construction product.

5.

Manufacturers shall indicate their name, registered trade name or registered trade mark and 164

the address at which they can be contacted on the construction product or, where that is not possible, on its packaging or in a document accompanying the construction product.

The address must indicate a single point at which the manufacturer can be contacted.

6.

Manufacturers who consider or have reason to believe that a construction product which they have placed on the market is not in conformity with the declared declaration of

165

performance , shall immediately take the necessary corrective measures to bring that construction product in conformity , to or withdraw it from the market and or recall it from

end users, if appropriate. They shall immediately inform the competent national authorities

of the Member States in which where they made the construction product available to that

this effect, giving details, in particular, of the non-compliance and of the any corrective

measures taken.

160 DELETED : Replace "procedures" by a longer reference to a system of Factory Production Control (FPC)."

161 DELETED : Add "...declared performance and the conformity with the applicable Community harmonisation legislation."

162

DELETED : Delete "if necessary." DELETED : Delete the whole second subparagraph.

163 DELETED : Clarify what is meant by "any other element". Is it the number of the DoP or another internal number which allows traceability ?

164 DELETED : Add: "... be contacted and the unique identification code of the construction product on the..."

165

DELETED : Use wording "not in conformity with the applicable Community harmonisation

legislation and the declared performance..."

7.

Manufacturers shall, further to upon the basis of a reasoned request from a of the competent national authority authorities, provide it them with all the information and

166

documentation necessary to demonstrate the conformity of the construction product with the declared performance, in a language which can be easily understood by the

167

authority . They shall cooperate with that authority those authorities, at the its request of the latter, on any action taken to eliminate to avoid the risks posed by construction

products which they have placed on the market.

168

Article 11

Authorised representatives

169

1.

A Mmanufacturers may appoint, by a written mandate, an authorised representative. The drawing up of technical documentation shall may not form part of the authorised

representative's mandate.

166

DELETED : Use wording "of the construction product with the applicable Community

harmonisation legislation and the declared performance...".

167

DELETED : Reservation. DELETED prefer: "language as determined by each Member

State". DELETED : Scrutiny reservation. Same reservations apply to Art. 12 (7). DELETED : The obligations of distributors in Art. 13 (2) are too burdensome compared to those of manufacturers; the manufacturers should be obliged here to deliver all the necessary information to distributors, so that they can fulfil their obligations.

168

DELETED : Add a new para. 8: "Manufacturers shall co-operate with notified bodies in their

duties and more particularly when a certificate of conformity has to be issued".

169 DELETED : Clarify whether this possibility also applies to manufacturers established within the Community and whether more than one authorised representative may be appointed.

DELETED : The written mandate given by the manufacturer to the authorized representative

should include specific obligations. DELETED : Make clear that manufacturers can appoint more than one authorised representative and that this means possible more than one DoP for a product.

2.

Where a manufacturer has appointed An authorised representative, the latter shall perform the tasks specified in the mandate received from the manufacturer. The mandate shall

170

allow the authorised representative to do at least do the following:

(a) keep the declaration of performance and the technical documentation at the disposal of national surveillance authorities for the period referred to Article 10(2);

(b) further to a reasoned on request from the a competent national authority authorities, provide them that authority with all the information and documentation necessary to

171

demonstrate the conformity of the product with the declared performance;

(c) co-operate with the competent national authorities, at their request of the latter, on any action taken to eliminate to avoid the risks posed by construction products

covered by their mandate.

172

170

DELETED : Clarify whether the drawing up of a DoP can be a task mandated to the

authorised representative.

171

DELETED : Use wording "...with the applicable Community harmonisation legislation and

the declared performance".

172

DELETED : Add a new (d): shall draw up the declaration of performance in accordance with

Articles 4-6. He shall also ensure that the product bears the required CE marking, is accompanied by the required documents and that the manufacturer has respected the requirements set out in Articles 10 (4) and 10 (5).DELETED : In order to be coherent with Art. 13 (2), add a provision that it is up to the manufacturer or the authorised representative to draw up instructions and safety information.

Article 12

173

Obligations of importers

1.

When placing a construction product on the Community market importers shall act with 174

due care in relation to the requirements of this Regulation.

2.

Before placing a construction product on the market importers shall ensure that the assessment and the verification of constancy of the declared performance has been carried

out by the manufacturer. They shall ensure that the manufacturer has drawn up the

technical documentation referred to in the first subparagraph of Article 10(1). They shall

175 176

draw up the declaration of performance in accordance with Articles 4, 5 and 6. They shall also ensure , that the product bears the required CE marking, is accompanied by the

required documents and that the manufacturer has respected complied with the

177

requirements set out in Articles 10(4) and 10(5).

173

DELETED : Mirror the text from horizontal Decision.

174

DELETED : Add in the end: "...and make a thorough inquiry on the prevailing building

regulations, related to the CE marking, in the Member States of destination. They inform their manufacturers accordingly."

175

DELETED : Rephrase to: "Before placing a construction product on the market importers

shall obtain from the manufacturer a copy of the technical documentation referred to in art. 10 (1), first paragraph, and they shall ensure its upgrading. On the basis of the technical documentation received, the importers shall draw up the ..."

176

DELETED : Add "...articles 4, 5 and 6 in case the manufacturer did not draw up this

declaration". DELETED : Align Art. 12 (2) to Art. 7 (1) in order to impose only feasible obligations on importers. DELETED : Impossible for the importer to draw up a d.o.p., modify this requirement.

177

DELETED : Add a language requirement, that the importer has to convey the information

drawn up by the manufacturer or authorised representative, also to be coherent with Art. 10,11 and 13.

Where an importer considers or has reason to believe that the construction product is not in

conformity with the declaration of performance, he shall may not place the construction

product on the market until it conforms to the accompanying declaration of performance or

178

until declaration of performance is corrected. Furthermore, where the product presents a 179

direct risk, the importer shall inform the manufacturer and the market surveillance authorities to that effect.

3.

Importers shall indicate their name, registered trade name or registered trade mark and the address at which they can be contacted on the construction product or, where that is not

possible, on its packaging or in a document accompanying the product.

4.

Importers shall ensure that, while a construction product is under their responsibility, storage or transport conditions do not jeopardise its conformity with the declared

performance.

5.

Importers who consider or have reason to believe that a construction product which they 180

have placed on the market is not in conformity with the declaration of performance, shall immediately take the necessary corrective measures to bring that construction product

in conformity, to or withdraw it from the market and or recall it from end users, if

appropriate. Furthermore, where the product presents a direct risk, importers They shall

immediately inform the competent national authorities of the Member States in which

where they made the construction product available to this that effect, giving details, in

181

particular, of the non-compliance and of any the corrective measures taken.

178

DELETED : Art. 12 (2), second sub-para. should read: "Where an importer considers or has

reason to believe that the construction product is not in conformity with the applicable Community harmonisation legislation or the declaration of performance, he may not place the construction product on the market until it has been brought into conformity with conforms to the applicable Community harmonisation legislation and the accompanying declaration of performance or until the declared performance declaration of performance is corrected."

179

DELETED : Define "direct risk" for the purposes of this Regulation in Article 2. Cion:

Meaning of "direct risk" in the context of this Regulation could be clarified in a recital.

180

DELETED : Use wording "...conformity with applicable Community harmonisation

legislation or the declared performance..."

181

DELETED : Add a new subparagraph: "Importers share and keep - in cooperation with their

manufacturers- a register of complaints. They inform each other about complaints from their customers."

6.

Importers shall, for the period referred to in Article 10(2), keep a copy of the declaration of performance at the disposal of the market surveillance authorities and ensure that the

technical documentation can be made available to those authorities, upon request.

7.

Importers shall, further to on the basis of a reasoned request from a the competent national authority authorities, provide it them with all the information and documentation necessary

to demonstrate the conformity of the construction product with the declared performance,

182

in a language which can be easily understood by the authority . They shall cooperate with that authority those authorities, at its the request of the latter, on any action taken to

eliminate to avoid the risks posed by construction products which they have placed on the

market.

183

Article 13

184

Obligations of distributors

1.

When making a product available on the market distributors shall act with due care in relation to the requirements of this Regulation.

182

DELETED : Use wording: "...the construction product with the applicable Community

harmonisation legislation and the declared performance."

183 DELETED : Add a new para. 8.: "Importers shall co-operate with notified bodies,

particularly when audit-testings before placing a product on the market are foreseen in the systems of assessment and verification of constancy of performance, in annex V."

184

DELETED : Obligations for distributors (and to some extent also for importers) might be too

burdensome and not practical. DELETED : Supports this provision and the principle, but shares concerns of BG.

2.

Before making a construction product available on the market distributors shall ensure that 185

the product bears the required CE marking and is accompanied by the documents required under this Regulation and by instructions and safety information in a language

186

which can be easily understood by users in the Member State in which where the 187

product is made available on the market and that the manufacturer and the importer have complied with the requirements set out in Article 10(4), Article 10(5) and Article 12(3)

respectively.

Where a distributor considers or has reason to believe that a construction product is not in

conformity with the declaration of performance, he shall not may make the product

available on the market until only after it conforms to the accompanying declaration of

performance or until declaration of performance is corrected.. Furthermore, where the

product presents a direct risk, The distributors shall inform the manufacturer or the

importer to that this effect as well as the market surveillance authorities, when the product

188

presents a risk.

185

DELETED : Given that not all construction products will bear the CE marking, the wording

should be adjusted. "...market distributors shall make sure whether the product bearing the CE marking is accompanied by the documents...".

186

DELETED : Replace "in a language easily understood by users in the Member State" by "in

the official languages of the Member State". For this reason, IMCO 59 is in principle acceptable to those delegations. DELETED : Replace by "in the official language or languages of the Member State in which the product is to be used. DELETED : The task of ensuring that instructions and safety information are available in the relevant language should fall on importers or distributors. DELETED : Delete "and by instructions and safety information in a language easily understood by users in the Member State". DELETED : Clarify which "accompanying documents" reference is being made to. DELETED : Reservation on para. 2. NB: Horizontal decision ("R 5") uses wording: "...easily understood by consumers and other end-users in the Member State in which the product is to be made available on the market".

187

DELETED : Add "and in a linguistic form easily understandable by users."

188

DELETED : Re-word the second sub-para as follows: "Where a distributor considers or has

reason to believe that a construction product is not in conformity with the applicable Community harmonisation legislation or the declaration of performance, he may make the product available on the market only after it has been brought into conformity with the applicable Community harmonisation legislation and conforms to the accompanying declaration of performance or until the declared declaration of performance is corrected. The distributor shall inform the manufacturer or the importer to this effect as well as the market surveillance authorities, when the product presents a risk.

3.

A distributor shall ensure that, while a construction product is under his responsibility, storage or transport conditions do not jeopardise its conformity with the declared

performance.

4.

Distributors who consider or have reason to believe that a construction product which they 189

have made available on the market is not in conformity with the declaration of performance, shall immediately make sure that the necessary corrective measures

necessary to bring that product in conformity, to or withdraw it from the market and or

recall it from end users are taken, if appropriate, are taken. Furthermore, where the product

presents a direct risk, distributors They shall immediately inform the competent national

authorities of the Member States in which where they made the product available to that

this effect, giving details, in particular, of the non-compliance and of any the corrective

measures taken.

5.

Distributors shall, further to on the basis of a reasoned request from a the competent national authority authorities, provide it them with all the information and documentation

necessary to demonstrate the conformity of the construction product with the declared

190

performance . They shall cooperate with that authority those authorities, at its the request of the latter, on any action taken to eliminate to avoid the risks posed by construction

products which they have made available on the market.

189 DELETED : Use wording: "...conformity with the applicable Community harmonisation legislation or the..."

190

DELETED : Use wording "...with the applicable Community harmonisation legislation and

the declared performance."

Article 14

Cases in which obligations of manufacturers apply to importers and distributors

An importer or distributor shall be considered a manufacturer for the purposes of this Regulation

and he shall be subject to the obligations of the manufacturer under Article 10, where when he

places a product on the market under his name or trademark or modifies a construction product

191

already placed on the market in such a way that conformity with the declared performance , may be affected and consequently he shall be subject to the obligations of the manufacturer under Article

192

10.

193

Article 15

Identification of economic operators

194

Economic operators shall be able, on request, to identify the following to the market surveillance authorities, for a period referred to in Article 10(2):

(a) any economic operator who has supplied them with a product; (b) any economic operator to whom they have supplied a product.

191

DELETED : Use wording "...that conformity with the applicable Community harmonisation

legislation and the declared performance...".

192

DELETED : Add "...in case harmonized technical specifications provide possible

modifications of the product and the distributor wants to market the modified product again under the CE- marking.

193

DELETED : Add the following Article 14a: Cases in which obligations of distributors apply

to manufacturers - "A manufacturer shall be considered a distributor for the purposes of this Regulation, when he places a product on the market."

194

DELETED : Restrict this obligation to "manufacturers, authorised representatives, importers

and major wholesalers", thereby excluding smaller distributors.

CHAPTER IV

H T S ARMONISED ECHNICAL PECIFICATIONS Article 16

Harmonised standards

1.

Harmonised standards 195 shall be established by the European standardisation bodies listed in Annex I to Directive 98/34/EC on the basis of mandates adopted by the Commission in

196

accordance with Article 6 of that Directive.

2.

Harmonised standards shall provide the methods and the criteria for assessing the 197

performance of the construction products in relation to their essential characteristics. When foreseen in the respective mandate or otherwise technically justified, a

harmonised standard shall refer to an intended end use of products to be covered by

198

it.

195

DELETED : Add a clear definition of harmonised technical specifications/standards. Prsd:

highlights benefits of case by case approach. DELETED : Make clear in the wording that only Annex Z of the harmonised standard will be compulsory.

196

DELETED : Mention Consultation of Standing Committee according to Article 51.

DELETED : Mention Committee of Directive 2006/123. Cion: Would interfere with valid

comitology rules. DELETED : Specify that a harmonised standard is only obligatory with regard to the relevant provision in the annexes. Cion: Correct in substance, but no need to change Article 16. DELETED : Add in the end: "...and shall support the relevant requirements of other applicable Community harmonisation legislation."

197

DELETED suggest different wording: "...shall establish the essential characteristics and

provide the methods and the criteria for assessing the performance of the construction products in relation to them. Cion: Reservation, it is in the mandate, not in the standard.

DELETED : Clarify the scope of the harmonised standard. DELETED : Clarify by saying:

"...essential characteristics and their performance over time and shall indicate the intended use of the construction product in the construction works". Performance over time could also be expressed by "durability" as in IMCO 61 (first part). DELETED /Cion: Against such additions. Second part of IMCO 61 is rejected by most delegations, some could accept it with several adaptations of the wording.

198

DELETED : Addition is unnecessary, "intended use" is always referred to in a harmonised

standard.

Harmonised standards shall, where appropriate, provide methods less onerous than testing

for assessing the performance of the construction products in relation to their essential

199

characteristics.

3.

The European standardisation bodies shall determine in harmonised standards the applicable factory production control, which shall take into account the specific conditions

200

of the manufacturing process of the construction product concerned. 201

4.

The Commission shall assess the conformity of harmonised standards established by the 202

European standardisation bodies with the relevant mandate. The Commission shall publish in the Official Journal of the European Union the list of

203

references of harmonised standards which are in conformity with the relevant mandates, and set the date of applicability of those standards determine from which date on the

application of those standards will be optional and from which date on it will be

204

mandatory.

The Commission shall publish any updates to that list.

199

DELETED : Sometimes both national standards and harmonised standards apply; clarify

precedence in case of any conflict. Cion: Reservation; the principal roles of EU level and Member State level cannot be modified or regulated through this article. DELETED : Replace "testing for assessing the performance by "those for determination of the performance" in order to exclude inappropriate methods such as tabular calculation.

DELETED : Replace the whole second sub-paragraph by: "Provided that assessing the

performance of the construction products in relation to their essential characteristics is drawn up with identical guarantee, the harmonised standards could provide methods less onerous than testing.

200

DELETED : Add in the end: "...and all further technical details necessary for the proper

implementation of the system of assessment and verification of constancy of performance."

201

DELETED : Add a new first sub-paragraph: "When preparing the mandates for harmonised

standards, the Commission shall firstly take into consideration the construction products placed on the market on the basis of other harmonised specifications

". 202

DELETED : Specify in greater detail the content of the mandate (quality assurance,

conformity assessment, third-party control etc.)

203

DELETED : Add language provision on harmonised standards themselves. Cion: Would

require a principal horizontal provision or a change in the CEN system, cannot be regulated by Constructions Products Regulation alone.

204

DELETED : Add reference to national standards transposing harmonised standards. Cion:

Not usual anymore in legal drafting, but can be checked, if necessary. DELETED : Add provision on how to amend standards. Cion: This is done in the CEN system, not through Articles 16 and 17. DELETED : Clarify what happens if the periods of double application elapse, whether products may still be placed on the market. DELETED : Reservation on Art.

Article 17

Formal objection against harmonised standards

1.

When a Member State or the Commission considers that a harmonised standard does not entirely satisfy the requirements set out in the relevant mandate, the Commission or the

Member State concerned shall bring the matter before the Committee set up by Article 5 of

205

Directive 98/34/EC, giving its arguments. The Committee shall, after having consulted 206

with the relevant European standardisation bodies, deliver its opinion without delay. 207

2.

In the light of the Committee's opinion, the Commission shall decide to publish, not to publish, to publish with restriction, to maintain, to maintain with restriction or to withdraw

the references to the harmonised standard concerned in the Official Journal of the

European Union.

3.

The Commission shall inform the European standardisation body concerned and, if 208

necessary, request the revision of the harmonised standards concerned. 209

16 (4). Prsdy: Exact wording to be checked.

205

DELETED : Reference should rather be to the Standing Committee acc. to Article 51.

DELETED : Consult first Standing Committee, then Dir. 98/34 Committee. DELETED :

Clarify the modalities of consultation of Member States. For similar reasons, DELETED could accept the principle of IMCO 63 (verification whether a mandate has been followed correctly), however without using wording such as "responsibility" and "ensuring" etc. Cion: Sceptical, the role of the Committees in case of formal objections has to follow the horizontal Regulation. IMCO 63 as currently drafted runs against Art. 16.

206

DELETED : Add the following sentence: "In case of alteration of the status of a harmonised

standard the Committee set up by Article 5 of the Directive 98/34/EG shall be informed."

DELETED : Answers of Member States should be made available together with the opinion.

207

DELETED : Add a deadline, at least "without delay". Cion: Against.

208

DELETED : A similar provision to Art.17 is needed in case of a formal objection against an

EAD. Cion: Will check whether a parallel article is needed. DELETED : Provide for the possibility of smaller modifications, not always a total revision of the standard.

209

DELETED : Add a new article 17a: "Formal objection against European Assessment

Documents: 1. When a Member State or the Commission considers that a European Assessment Document does not entirely comply with the provisions set out in Article 20(1) to (2) or Annex II or in other provisions of EC harmonisation legislation, the Commission or the Member State concerned shall bring the matter before the Committee set up by Article 51(3), giving its arguments. The Committee shall, after having consulted with the organisation referred to in Article 20(3), deliver its opinion without delay. 2. In the light of the Committee's opinion, the Commission shall decide to publish, not to publish, to publish with restriction, to maintain, to maintain with restriction or to withdraw the references to the European Assessment Document concerned in the Official Journal of the European Union. 3. The Commission shall inform the organisation referred to in Article 20(3), and, if necessary, request the revision of the European Assessment Document.

Article 18 [17]

Levels or classes of performance

210

1.

The Commission may establish classes of performance in relation to the essential 211

characteristics of construction products. Those measures, designed to amend non-essential elements of this Regulation, by

supplementing it, shall be adopted in accordance with the regulatory procedure with

212

scrutiny referred to in Article 51(2).

2.

Where classes of performance in relation to the essential characteristics of construction products are not established by the Commission, they may be established by the European

213

standardisation bodies in harmonised standards, on the basis of a revised mandate. Where the Commission has established classes of performance in relation to the essential

characteristics of construction products, the European standardisation bodies shall use

214

those classes in harmonised standards.

210

DELETED : Clarify difference between "establish" here and "determine" in para. 4.

211

DELETED : Include a provision stating that it needs to be ensured that the range of the

classification systems (highest and lowest value) established by the European standardisation bodies in harmonised standards, or by Commission meets the requirements of the Member States. DELETED : Include consultation of Standing Committee.

212

DELETED : Adapt this standard clause to the requirements of this article.

213

DELETED : Include a role for the TABs by adding:"...in harmonised standards and by the

organisation of Technical Assessment Bodies referred to in Article 25(1) in European Assessment Documents." DELETED : Either involve TABs or replace "in harmonised standards" by "in harmonised standards or EADs" (throughout).DELETED : Enlarge role of Member States, here and in para. 4. DELETED : Commission should fix classes, Member States should always be allowed to determine the level. Clarify procedure in case of disagreement. DELETED : Use wording "new or revised mandate". DELETED : Use wording "the initial or a revised mandate." DELETED : Clarify legal situation in the case of wrong or inappropriate standards. IMCO 64 rejected by most delegations, while DELETED could accept the second part of it. See also recital 11a in this respect.

214

DELETED : Revert the order of the two sub-paras. of para. 2. Furthermore, the substance of

Art.18 and 19 should go logically after Art. 21. DELETED : Add: "For their approval, the Committee established by Article 51 of this regulation must be consulted." DELETED suggests end of paragraph as follows: "...standardisation bodies and the TABs organisation shall use respectively those classes in harmonised standards and in EADs." Cion: Art. 18 (2) is for technical classes/requirements, not regulatory requirements, that is why information and not full comitology procedure is sufficient. Suggestion to add: "and if appropriate, the mandate is modified." DELETED : As an analogy to para. 3, include a wording on "minimum technical levels" in para.2.

3.

The European standardisation bodiesmay set in harmonised technical specifications the conditions under which a product shall be deemed to satisfy a certain level or class of

215 216

performance without testing or without further testing. 217

When foreseen in the respective mandates, the European standardisation bodies shall establish in harmonised standards minimum performance levels in relation to

218

essential characteristics and, when appropriate, for intended end uses, to be fulfilled by construction products in Member States.

3a. The Commission may establish conditions under which a construction product shall be deemed to satisfy a certain level or class of performance without testing or without

further testing.

Those measures, designed to amend non-essential elements of this Regulation, by

supplementing it, shall be adopted in accordance with the regulatory procedure with

scrutiny referred to in Art. 51 (2).

215

DELETED : Insert consultation of the Standing Committee in the procedures acc. to

paragraphs 2 and 3. Cion: Sceptical to this idea. DELETED : Align procedures of Art. 18 to those of Art. 17, in order to give Member States and Commission a better defined role.

DELETED : Clarify status of existing and future guidance documents and mention

something on how they are adopted.

216

DELETED : Suggests following para. 3.: "The Commission may also set conditions under

which a construction product shall be deemed to satisfy a certain level or class of performance without testing or without further testing. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(2). Where such conditions are not set by the Commission, they may be established by European harmonisation bodies in harmonised standards." DELETED : Include definitions of "without testing", "without further testing", "levels/classes of performance" in Article 2. DELETED : Add following sub-paragraph: "In relation to the performance classes laid down by the Commission, European standardisation bodies shall establish the conditions under which a product shall be without testing or without further testing deemed to satisfy the defined level of the performance on the basis of the relevant Commission decisions taken in accordance with art. 51 (2)." IT: Add the following: "These conditions shall be verified at regulatory level and shall be defined by a Commission Decision after consultation of committee of Art.51."

217

DELETED : Add "...bodies and the organisation of Technical Assessment Bodies referred to

in Article 25(1) may... ". DELETED : Scrutiny reservation. DELETED : Revert to original wording of para.3. DELETED : Mandate should always include minimum performance levels, thus start this paragraph by "As laid down in the respective mandates, the European standardisation bodies..." Cion: Against.

218

DELETED : Against wording "intended end use"; see also footnotes to definition Art. 2

(17a).

Where such conditions are not established by the Commission, they may be

established by the European standardisation bodies in harmonised standards, on the

219

basis of a revised mandate.

4.

Member States may determine the levels, or classes of performance, to be respected by 220

construction products in relation to the essential characteristics of construction products only in accordance with the classification systems established by the European

221 222

standardisation bodies in harmonised standards, or by the Commission.

219

See footnotes to para. 2. DELETED : Replace "on the basis of a revised mandate" by "after

informing the Commission and Member States about this".

220

DELETED : Use wording: "Member States may establish the levels of performance or,

where classes of performance in relation to the essential characteristics of construction products are not established by the Commission or in harmonised standards, the classes of..." Cion: Sceptical. DELETED : Use "apply the levels" instead of "determine the levels".

DELETED : Mention "upper and lower limits" that Member States are allowed to set. Prsdy:

Suggests finding a broader wording clarifying that there are various ways on how to fix classes, values and levels.

221

DELETED : Shorten the text to read: "established by the Commission." DELETED : Role

of European standardisation bodies is too strong here. DELETED : Use wording: "...harmonised standards or by the organisation of Technical Assessment Bodies referred to in Article 25(1) in European Assessment Documents, or by the Commission. DELETED : Add a provision on determining levels or classes also for EADs. Cion: Open to this suggestion. DELETED : Regulation should clarify the status of current "Guidance Papers" .

222

DELETED : Add a new second sub-para. of (4) and a new (4a): "The range of the

classification system, classes or levels according No. (1) and (2) shall be compatible with the applicable requirements. (4a): The establishment of levels and classes concerning health, safety, environmental protection and consumer protection, will take into account to allow Member States to regulate a high level of protection."

Article 19 [18]

223

Assessment and verification of constancy of performance

1.

Assessment and verification of constancy of the declared performance of construction 224

products in relation to their essential characteristics shall be carried out in accordance 225

with one of the systems set out in Annex V. 226

2.

The Commission shall establish which system or systems are is applicable to a given construction product or family of construction products or a given essential characteristic

227

according to the following criteria:

(a) the importance of the part played by the product or the said essential characteristics with respect to the basic works requirements;

(b) the nature of the product;

223

DELETED : In the whole article the obligations of manufacturers are insufficiently

described. DELETED : Reservation, as it is doubtful whether assessment and verification provisions really lead to simplification.

224

Cion explained that the system to assess and verify the constancy of a declared performance

of a construction product is needed in order to mirror the relevant provision of the horizontal Regulation. For construction products however, "assessment of constancy of performance" and not just "assessment of conformity" is the correct concept, thus the provision has to be more detailed. DELETED : Unclear, whether this means that for each characteristic of a product a separate system according to Annex V will be established along the criteria of Art. 19.2 .

225

DELETED : Annex V should specify the validity/duration of certificates issued. DELETED

:

Use wording "with the systems set out..." Cion: Not necessary. DELETED : Clarification needed whether Art. 19 and the use of notified bodies as referred to in Art. 19 (1), is intended to be applied only for conformity assessment based on harmonized standards or also for the European Technical Assessment procedure.

226

Following a question by DELETED , the Cion explained that these systems also apply in

cases where the manufacturers has voluntarily chosen to declare some types of performance (Art. 4 (1)(b), because as soon as a DoP has been issued, one of the systems applies.

DELETED : Start paragraph as follows: " By a decision amending Annex Ia (new) according

to article 50 the Commission shall establish..."

227

DELETED : Align provisions further to horizontal Regulation, although it is understood that

modules and systems are not the same thing. Clarify link to eco-design directive. Cion: Link is automatic, either Member States legislation or European legislation can always set out essential requirements that certain products have to fulfil.

during the service life of the product; 229

(d) the susceptibility to defects in the product manufacture. In each case, the Commission shall choose the least onerous system or systems consistent

230 231

with the fulfillment of all basic works requirements safety. Those measures, designed to amend non-essential elements of this Regulation, by

232

supplementing it, shall be adopted in accordance with the regulatory procedure with 233

scrutiny referred to in Article 51(2).

3.

The system thus determined shall be indicated in the mandates for harmonised standards 234

and in the harmonised technical specifications.

228

DELETED : Definition of service life needed, maybe in Art. 2.

229

DELETED : Add the following wording: "The Commission may establish the applicable

system based on horizontal criteria to achieve reliable CE-marking information." Cion: Generic wording is ok, but details should be left to Comitology.

230

Acceptance of the principle of IMCO 66, but with a modified wording.

231

DELETED : Insert a new subparagraph: "In cases where a construction product is subject to

several essential characteristics, the Commission may decide on different assessment systems that may apply for the characteristics concerned. In these cases a manufacturer may use the most onerous assessment system applied for all essential characteristics. The Commission may also decide that one certain assessment system should be used for a specific essential characteristic for all construction products."

232

DELETED : Delete parts between commas "designed...it" throughout the Regulation as

redundant.

233

DELETED : Reservation on normal comitology provision here, Standing Committee should

be involved.

234

DELETED : Replace "technical specifications" by "standards". Rejection of IMCO 67 by

delegations; DELETED could accept it without the word "generic".

Article 20 [19]

235

European Assessment Document 236

1.

The European Assessment Document (EAD) shall be adopted by the organisation of 237

Technical Assessment Bodies referred to in Article 25(1) following a request for a 238

European Technical Assessment by a manufacturer or an importer , in accordance with 239

the procedure set out in Annex II.

2.

The organisation of Technical Assessment Bodies referred to in Article 25(1) shall 240

establish in the EAD the methods and the criteria for assessing the performance in

235 DELETED : It will be very difficult in practice to create EADs of a quality similar to a harmonised standard via the currently proposed provisions of Art. 20 - 25.

236

Most delegation can accept IMCO 68, if IMCO 70 is not taken on board, that is "not or not

fully covered by a harmonised standard" should only appear once.

237

DELETED : Clarify that we normally refer to an already existing organisation here.

DELETED : Either the organisation of TABs should work "on the basis of a mandate by the

Commission", or else the organisation of TABs should get an exact parallel provision for EADs to that suggested for European standardisation bodies for harmonised standards in Art.18. DELETED : Clarify here or in Art. 21 that an EAD - if a harmonised standard already exists - can only be complementary. DELETED : Restrict EADs to cases, where a harmonised standard does not exist. Cion: There are cases where harmonised standards and EADs might co-exist.

238

DELETED suggests: "...for a ETA for a product not covered by a harmonised standard

submitted by a manufacturer or an importer in accordance with the procedure set out by the Commission. Those measures...(standard comitology wording)" See also adaptations to recital 17. DELETED : To follow any request by any manufacturer is too burdensome for the organisation of TABs. Delete this. Cion: Not every request will require a complete new EAD. The organisation of TABs can take adequate internal measures. DELETED : Delete "or importer" here and in Art. 21 (1). DELETED : Deletion of importer also requires changes in Annex II. Cion: Against deletion, importer is responsible in case of third-country manufacturers.

239 DELETED : Time-frame for the procedure of Annex II is too rigid. More flexibility needed. DELETED : Procedure of Annex II is too burdensome and too detailed regarding innovative

or small series production. A general wording on TABs and how to grant EADs would be sufficient. Cion: Open to improvements of Annex II. DELETED : Add: "...manufacturer and which are consistent with applicable methods and criteria provided in harmonised standards." Different methods should be avoided, if those are already covered by a harmonised standard.

DELETED : Insert a requirement for TABs to use available standardised European test

methods in the EAD. DELETED : Replace Annex II by a general provision that details can be fixed through comitology.

240

DELETED : Add "and when applicable, minimum levels of this performance in relation...".

Consequently, delete (2a).

relation to those essential characteristics of the construction product, which are related to

241 242

the use intended its intended use, as foreseen by the manufacturer.

241

DELETED : Re-phrase as follows: "...to those essential characteristics of the construction

product, which are covered by the EAD related to the placing on the market and the use of the product in construction works."

242

DELETED : Clarify that the organisation of TABs does not always need new tests etc., but

can rely on standard methods, also contained in harmonised standards; add 20 (3a): "Common European test methods should be used if they are available and suitable for the construction product."

2a . When appropriate, the organisation of Technical Assessment Bodies referred to in 243

Article 25 (1) shall establish in the EAD minimum performance levels in relation to essential characteristics of the construction product within its intended end use as

foreseen by the manufacturer.

3.

The organisation of technical assessment bodies referred to in Article 25(1) shall determine in the EAD the specific factory production control to be applied, taking into account the

particular conditions of the manufacturing process of the construction product

244 245

concerned. Article 20a

Formal objections against EADs

1.

When a Member State or the Commission considers that EAD does not entirely satisfy the demands to be met in relation to the basic works requirements, set out in

Annex I, the Commission or the Member State concerned shall bring the matter

before the Committee referred to in Article 51(1), giving its arguments. The

Committee shall, after having consulted with the organisation of Technical

Assessment Bodies referred to in Article 25(1), deliver its opinion without delay.

2.

In the light of the Committee's opinion, the Commission shall adopt the appropriate measures.
3.

The Commission shall inform the organisation of Technical Assessment Bodies referred to in Article 25(1) and, if necessary, request the revision of the EAD

concerned.

243

DELETED : Opposes this role of TABs. Reservation. DELETED : Role of TABs to set

minimum performance levels is not consistent with definition of "requirements" (Art.2) and the role of standardisation bodies set out in Art. 18.

244 DELETED : Clarify the link between EAD and the system of assessment and verification of constancy of performance and make clear who will set up or decide the application system.

245 DELETED : Delete the whole para. 3 as covered by para.2 and Annex II in substance. DELETED : Delete the word "specific". DELETED : Add the following sentence:

"Consolidated European test and classification methods, if already defined, are considered in EAD".

Article 21 [20]

European Technical Assessment

1.

The European Technical Assessment (ETA) shall be issued by a Technical Assessment Body, for any construction products not covered or not fully covered by a harmonised

246 247

standard, at the request of a manufacturer or importer on the basis of a EAD in 248

accordance with the procedure set out in Annex II.

246

DELETED suggests: for innovative construction products that are not covered by

harmonised standard, or when the existing harmonised standard may not be applied, at the request of a manufacturer or..."

Cion: Concept "innovative" is difficult to define and apply . DELETED : Use wording: "...any construction product if the manufacturer shows the

product's deviation from the concerning harmonized standard or the impossibility to use a harmonized standard to evaluate the performances related to essential characteristics of the product, at the request...". The DELETED delegation took the view, that if some requirements are not covered by a harmonised standard it would also be possible to have a "complementary national procedure" instead of an "ETA". Other delegations were sceptical as this should not lead to a CE marking but would already enter the area of voluntary markings and mutual recognition. DELETED : Clarify exactly what a ETA can replace, maybe in a recital. Cion: Annex II is clear enough, against additional recital. Most delegations: IMCO 70 would not be necessary, if IMCO 68 for Art. 20 is accepted (see footnote there).

247

DELETED : Add "distributor". Cion: Unnecessary, if distributors take over manufacturer's

role, provision will apply automatically. Keep "at the request" in any case. DELETED : Delete "at the request...importer" to avoid any overlaps with existing harmonised standards and too burdensome procedures.

248 DELETED : Add wording on the appropriateness of the product for different uses. DELETED : Wording should permit that the ETA contains instructions for intended use.

Cion: Sceptical, ETA concentrates on essential characteristics and does not include a whole evaluation of the product. DELETED : Clarify whether an ETA can be issued, if an EAD has not yet been elaborated, in order to avoid that manufacturers have to wait too long. Cion: Difficult to impose time-frames, harmonised standards and EADs need some time to be set up. DELETED : Procedure of Annex II is too detailed and rigid, definition of rights and obligations would be a better solution. DELETED : Modify the wording "...shall be issued in case there is no harmonised standard applicable or the concerned harmonised standard is not fully applicable by..." DELETED suggests completely new para. 1 as follows: European Technical Assessment may be granted to: (a) products for which there is neither a harmonized standard, nor a recognized national standard, nor a mandate for a harmonized standard, and for which the Commission, after consulting under procedure of article 4 of Decision 1999/468/EC the Committee referred to in Article 51, considers that a standard could not, or not yet, be elaborated; and (b) products which differ significantly from harmonized or recognized national standards. Even in the case where a mandate for a harmonized standard has been issued, the provisions referred to in (a) do not exclude the granting of European technical Assessment for products for which European Assessment Document for such approval exist. This shall apply until the entry into force of the harmonized standard in the Member States.

249

2.

The Commission shall establish the format of the ETA. Those measures, designed to amend non-essential elements of this Regulation, by

supplementing it, shall be adopted in accordance with the regulatory procedure with

250

scrutiny referred to in Article 51(2).

249

DELETED : It should be clear that "format" includes duration/validity. Cion: No need to

change the text here. DELETED : Should read: "The Commission in consultation with the Organisation of TABs shall establish..."

250

DELETED : In order to avoid a lower quality in case of ETAs than in case of harmonised

standards, the para. 2 should be split and reorganised as follows: "(2). The Commission shall establish the format of the ETA. (3). The Commission can decide, as a measure, designed to amend non-essential elements of this Regulation, that future ETAs only can be issued if the respective product is not covered by a harmonised standard. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(2). (4). If an ETA is issued for a product already covered by a harmonised standard, the level of security and safety of the harmonised standard shall apply for the ETA."

CHAPTER V

T A B ECHNICAL SSESSMENT ODIES Article 22 [21]

251

Designation of Technical Assessment Bodies

1.

Member States may designate Technical Assessment Bodies (TAB) 252 for product areas 253

listed in Table 1 of Annex IV.

Member States which have designated a TAB shall communicate to the other Member

254

States and the Commission the name, the address of that TAB and the product areas for which that TAB is designated.

2.

The Commission shall make publicly available the list of TABs indicating the product areas for which they are designated.

255

The Commission shall make publicly available any updates to that list.

251

DELETED : Wording of Articles 22-25 is too far-reaching, provisions from the horizontal

Regulation are sufficient. DELETED : Articles 22-25 provide for special procedures for designation and evaluation of TABs. It would be preferable instead to maintain the same requirements as for notified bodies in general and not to create new procedures. DELETED : Ok. with the principle of this Chapter, but the EAD/ETA procedure should be changed as follows: -- appropriate parts of the well established system for assessment of notified bodies should be used to evaluate the technical assessment bodies, (TABs) in order to secure their competence, through the use of accreditation and European standards --- the standing committee of construction shall be informed about requests for EADs and about the evaluation of the bodies applying EADs; -- using established European methods in EAD/ETA should be mandatory if such methods exist.

252

DELETED : Add "within their territory." Cion: Unnecessary. DELETED : Clarify whether

TABs can be public or semi-public bodies. Give more flexibility to Member States concerning the designation method. Cion: TABs can be public, however general competition rules apply to them.

253

DELETED : Too restrictive, either delete "for product areas listed in Table 1 of Annex IV"

or add "or for other construction products" here or in Annex IV. DELETED : Designation method does not necessarily have to refer to "product areas". DELETED : Annex IV is too restrictive, use product families and sub-families. Cion: The concept of TABs organised along product area lines is not new. DELETED : Use wording "one or more product areas", as the same TAB can cover several areas. DELETED : Use wording "for all or some of the product areas..." DELETED : Use wording: "Member States may designate TABs and determinate a scope of construction products covered by their assessment."

254

DELETED : Mention the existing system. Cion: Current wording is better to cover all

Article 23 [22]

Requirements for TABs

256

1.

The TAB shall satisfy the requirements set out in Table 2 of Annex IV. 2. Where a TAB no longer complies with the requirements referred to in paragraph 1, the Member State shall withdraw the designation of that TAB and inform the Commission

257

and the other Member States of this withdrawal.

3.

Member States shall inform the Commission and the other Member States of their national 258

procedures for the assessment of TABs , of the monitoring of their activity, and of any 259

changes to that information. The Commission shall make that information publicly 260

available.

eventualities.

255

DELETED : Refer to Official Journal here. Cion: Against, not required by horizontal

regulation.

256

DELETED : Clarify that a TAB can be a notified body, e.g. by a new 23 (1a): "After

notification referred to in Chapter VII, a TAB can also act as a Performance Assessment Body (notified body)." Cion: Difficult to put this explicitly to a legal text. DELETED : Add a provision similar to that for notified bodies (Art. 33 (8)): "The remuneration of its personnel shall not depend on the number of assessments carried out or on the results of such assessments." DELETED suggests as an alternative wording: "The TAB shall satisfy the requirements within the scope of its essential competence covering the products assessment and a way for provision of the consistency of their characteristics during the current production process, impartiality and the management set out by the Commission in accordance with art. 51 (2)."

257

Addition following a DELETED suggestion, supported by the Cion. DELETED : Make

clear that the withdrawal can be linked to only certain product areas (no total withdrawal).

DELETED : Clarify what happens to ETAs that are in the process of being issued - in case of

such a withdrawal.

258

DELETED : The doubled procedures "assessment by Member States" in Art. 23 and "peer

evaluation" in Art. 24 seem very burdensome. Clarify that Art. 24 is a permanent updating of the initial assessment of Art. 23 or else merge the procedures or delimit them more exactly and describe responsibilities of TABs, national authorities and the Commission. Cion: Open to give more explanations in Article 23.

259

DELETED : Clarify whether a consultation procedure is provided here.

260

DELETED : Shift Art. 23 (3) to Art. 22 where it fits better.

Article 24 [23]

261 262

Evaluation of TABs

1.

The TABs shall evaluate verify whether other TABs fulfil the respective criteria set out in Table 2 of Annex IV.

263

The evaluation shall be organised by the organisation referred to in Article 25(1) and shall take place once every four years, within the product areas listed in Table 1 of Annex

IV, for which the TABs have been designated.

261

DELETED : General reservation on the usefulness of this peer evaluation article.

DELETED : Delete the article or replace by arbitration procedure. DELETED :

Requirements for peer evaluation can lead to competition problems or high costs for individual TABs.

262

DELETED : Replace the whole article by the following wording closer to the horizontal

Regulation: 1. TABs are subject to the peer evaluation to be organized by the organization referred to in art. 25(1); 2. The parties concerned have the right to participate in the system created for the surveillance over the peer evaluation, but not in the individual procedures of the peer evaluation; 3. Member States guarantee the systematical submission to the peer evaluation by their TAB, in accordance with the requirements referred to in para 1; 4. The peer evaluation is to be performed on the basis of fair and transparent criteria and evaluation procedures, particularly in relation to the requirements concerning the structure, human resources and procedures, confidentiality, and complaints; 5. The peer evaluation confirms whether the TABs comply with the requirements referred to in art. 23; 6. The results of the peer evaluation are to be published and communicate to all the MS and the Commission by the organization referred to in 25 (1); 7. The Commission cooperating with the MS performs the supervision over the rules and appropriate functioning of the peer evaluation.

263

DELETED : Reword to: "...in Article 25 (1). In this respect, for every TAB to be evaluated,

the organisation should designate an evaluation group consisting of representatives of at least three TABs appointed by the organisation. The evaluation shall take place..." or find a similar method for the designation of evaluators. Cion: Procedures can be installed to avoid competition problems or conflicts of interest. DELETED : Against evaluation by other TABs. DELETED : Evaluation of TABs should rather be done as for notified bodies, not as for national accreditation bodies (horizontal regulation).

2.

The Commission shall establish procedures for carrying out the evaluation, including 264

appropriate appeals procedures against decisions taken as a result of the evaluation. Those measures, designed to amend non-essential elements of this Regulation, by

supplementing it, shall be adopted in accordance with the regulatory procedure with

scrutiny referred to in Article 51(2).

The evaluation of a TAB may not be carried out by a TAB from the same Member State.

3.

The organisation referred to in Article 25(1) shall communicate the results of the evaluations of TABs to all Member States and the Commission.

The Commission shall, in cooperation with Member States, monitor the respect of the rules

and the proper functioning of the evaluation of TABs.

Article 25 [24]

Co-ordination of TABs

1.

The TABs shall establish an organisation for technical assessment, hereinafter "organisation of TABs".
2.

The organisation of TABs shall carry out the following tasks:

(a) co-ordinate the application of the rules and procedures set out in Article 19 and 265

Annex II, as well as provide the support needed to that end; 266

(b) inform the Commission twice a year of any question related to the preparation of EADs and of any aspects related to the interpretation of the rules and procedures set

267

out in Article 19 and Annex II;

264

DELETED : Clarify which decisions are taken by whom in case that a TAB fails a peer

evaluation. It should be for Member States to decide whether to grant or withdraw notification. Cion: Wording could indeed be improved.

265

DELETED : Replace these procedures by "procedures set out in Articles 20, 21 and 24, as

well...".

266

DELETED : Delete "twice a year".

267

DELETED : Replace these procedures by "procedures set out in Articles 20, 21 and 24.

(d) organise the evaluation of the TABs; (e) ensure the co-ordination of the TABs.

3.

The Commission may provide assistance to the organisation of TABs in carrying out the 269

tasks referred to in point (e) of paragraph 2. The Commission may conclude a 270

framework partnership agreement with the organisation of TABs to that end.

4.

Member States shall ensure that the TABs contribute with financial and human resources 271

to the organisation of TABs.

268

DELETED : Use wording "peer evaluation".

269

DELETED : Delete "point (e) of".

270

DELETED : Mention eligibility for Community financing (Art. 32 of Reg. 765/2008).

271

DELETED : Add in the end: "...but shall not subsidize bodies designated according to

Article 22 when acting as TABs." DELETED : Provision could be misunderstood as limiting the establishment of public TABs which should not be the case. DELETED : Delete this paragraph.

CHAPTER VI 272

SIMPLIFIED PROCEDURES Article 26 [25]

Use of Specific Technical Documentation

1.

When the manufacturer 273 determines the product-type he may replace type-testing or type 274

calculation by a Specific Technical Documentation (STD) demonstrating that:

(a) for one or several essential characteristics of the construction product he places on the market, that product is deemed to achieve a certain level or class of performance

without testing or calculation, or without further testing or calculation, in accordance

with the conditions set out in the relevant harmonised technical specification or

275

Commission decision ; or

272

DELETED : Scrutiny reservation on scope and details of simplified procedures. DELETED

:

It should be clarified that Art. 26-28 only deal with the assessment of declared performance and that the STD cannot demonstrate compliance with all applicable requirements.

DELETED : Clarify role of notified bodies in the whole procedure and whether the STD will

lead to issuing another certificate. STD procedure should only be possible for microenterprises and individually manufactures products, in this regard Art. 26 could be merged with Art. 27 and 28. Detailed requirements on the form of STDs should be set out in an Annex.

273

DELETED : Wording is not consistent with Annex V, replace "manufacturer" by "notified

body" or at least add "or the notified body". Suggests as an alternative: "For the determination of the performances of the product type testing or type calculation may be replaced by..."DELETED : Use wording "manufacturer or importer". Cion: If an importer takes over the manufacturer's role, the rights and obligations automatically fall on him.

274

DELETED : Make clear that reference to harmonised technical specification is always

necessary. Cion: Wording is sufficient. DELETED : Simplified procedures should only be possible if they do not compromise on safety and similar requirements. Cion: Open to add some more words in this respect. DELETED : Simplified procedures should not be possible without factory production control. Cion: Against.

275

DELETED : Add: "Commission decision, which should also be set out in the technical

specification, or". DELETED : Add "The Committee established by Article 51 of this Regulation must be consulted."

(b) the construction product he places on the market corresponds to shares the product type of with another construction product, manufactured by another manufacturer

and already tested in accordance with the relevant harmonised technical

276

specification . When these conditions are fulfilled, the manufacturer is entitled to declare performance corresponding to all or part of the test results of this another

product;

The manufacturer may use the test results obtained by another manufacturer only after having obtained an authorisation of that manufacturer, who remains

277

responsible for the accuracy, reliability and stability of those test results. or

(c) the construction product he places on the market is a system made of components, which he assembles duly following precise instructions given by the provider of such

a system or of a component thereof, who has already tested that system or that

component for one or several of its essential characteristics in accordance with the

relevant harmonised technical specification. 278 When these conditions are fulfilled, the manufacturer is entitled to declare performance corresponding to all or part of the

279

test results for the system or the component provided to him. The manufacturer may use the test results obtained by another manufacturer or system

provider only after having obtained an authorisation of that manufacturer, who remains

responsible for the accuracy, reliability and stability of those test results.

276

First part of IMCO 74 (editorial) is accepted, second part acceptable with a different wording

to DELETED ; not acceptable to DELETED : Add: "specification and the criteria for sharing set out therein."

277

DELETED : Addition is unnecessary; paragraph after (c) applies anyway. DELETED :

Sceptical to addition, could blur manufacturer's responsibilities.

278

DELETED : Insert at this place: "In cases where it has been proved that the use of STD will

lead to misleading documentation of one or several characteristics, a restriction from using STD for these characteristics should be stated in the harmonised technical specification." Principle of IMCO 75 acceptable to DELETED , not acceptable to DELETED : Scrutiny reservation.

279

DELETED : No need to change the text of (c), but Cion should review Guidance Paper C

"kits and systems".

2.

If the construction product, referred to in paragraph 1, belongs to a family of construction products for which the applicable system for assessment and verification of constancy of

280 281

performance is system 1 or 2, as set out in Annex V, the STD shall be verified by a 282 283

relevant certification body as referred to in Annex V.

280

DELETED : The verification of constancy of performance should be indicated on the

Certificate issued by the relevant certification body (also applies to Art. 27 (2) and 28 (2).

281

DELETED : "system 1, 2 or 3". DELETED : "system 1, 2 or 4." DELETED : STD should

not be permitted at all in cases of systems 1 or 2. Cion: To be checked whether this paragraph can be restructured similar to the beginning of Art. 27 (1): DELETED : Against; DELETED . Scrutiny reservation.

282

DELETED : Replace "relevant certification body" by "notified certification body". Cion:

Too obvious, redundant. DELETED : Add: "and for system 4 by a notified testing laboratory, as...".

283

DELETED : Add new paragraphs 2a to Articles 26, 27 and 28: "Where the fulfilment of the

basic works requirement "mechanical resistance and stability" is influenced by major perturbing geological conditions such as earthquakes, Member States may decide that for specified families of construction products for which the applicable system for assessment and verification of constancy of performance is 1 or 2, as set out in Annex V the use of a simplified procedure is not allowed." Cion: Will check whether this is necessary. DELETED : Add a new para 2a: "The manufacturer using STD is responsible that the performance of his product complies with test results obtained from another manufacturer." Cion: Sceptical, general responsibility of manufacturer has nothing to do with simplified procedure here.

Article 27 [26]

Use of Specific Technical Documentation by micro-enterprises

1.

Determination of the product-type on the basis of type-testing for the applicable systems 4 and 5 as set out in Annex V may be replaced by micro-enterprises may

replace the applicable system for assessment of the declared performance of

284

manufacturing a construction product by a STD. The STD shall demonstrate the 285

compliance of the construction product with the applicable requirements.

284

(IMCO 79 incorporated). DELETED : Art. 27 has good intentions, but might lead to

imbalances with regard to competition. DELETED : Delete articles 27 and 28. DELETED : Delete Article 27. DELETED : Art.27 and 28 procedures should not be possible with regard to safety requirements. In general, specific procedures should not depend on the size of enterprises or number of products and can be better provided for through details in harmonised standards or ETAs. DELETED : Scrutiny reservation, it has to be clarified that any simplified procedure is still robust with regard to safety requirements etc., more information needed on what a STD will in the end contain. Cion: The simplified procedure is only to assess declared performance and does not soften other manufacturer's obligations.

DELETED : Should read:"...the applicable system according to Annex V by a STD. The

STD shall demonstrate the constancy of performance of the construction product (rest deleted)" Cion: Could be misleading and wrongly interpreted. DELETED : Unclear from the wording what the simplified procedure would imply regarding the requirement of a DoP, the affixing of the CE marking and the factory production control within system 1 or 2.

DELETED : Clarify which parts can be replaced by a STD; use a more explicit wording. DELETED : Use wording "type testing", "type calculation" etc. Cion: Wording is clear

enough. DELETED : Restrict this possibility to cases where the old system 2 of the CPD is applied. DELETED : Art. 26-28 can stay as they are. DELETED : Use of STD (Art. 27 and 28) should include very small series of production and should apply to all SMEs, including micro-enterprises. CEN Technical Committees could elaborate with industry to initiate a revision of the corresponding standard.

285

DELETED : It becomes difficult for importers to check this and thus to fulfil their

obligations. DELETED : Add: "The STD should include the results of the verification and the involved notified body."

2.

If a construction product belongs to a family of construction products for which the applicable system for assessment and verification of constancy of performance is system 1

or 2, as set out in Annex V, the STD shall be verified by a relevant certification body as

286

referred to in Annex V. 287

288

289

286 DELETED : Suggests: "...verified by a notified certification body as referred to in Annex V

and in the case of system 4 by a notified testing laboratory." Add new (2a): "The result of the verification and the involved notified body shall be indicated in the STD".

287

DELETED suggests a complete re-draft in order to enlarge to SMEs as follows: Article 27

Use of Specific Technical Documentation by Small and Medium-Sized Enterprises microenterprises 1. Small and Medium-Sized Enterprises Micro-enterprises may replace the applicable harmonised technical specification relevant system for the assessment and declaration of performance of the essential characteristics of the declared performance of construction product by a STD. A STD may be used as well where harmonised technical specifications are not yet available but the product family is covered by a Commission Decision on the assessment and verification of constancy of performance. The STD shall demonstrate the compliance of the construction product with the applicable requirements for placing on the market and the intended use of the product provided for by the manufacturer where the manufacturer intends to place the construction product on the market. 2. If a construction product belongs to a family of construction products for which -- the applicable system for assessment and verification of constancy of performance is system 1 or 2 as set out in Annex V, or -- system 3 is required by a Commission Decision on the assessment and verification of constancy of performance for safety reasons, the STD shall be verified by a relevant TAB certification body as referred to in Article 22. The provisions of Annex II shall not apply." Annex V. In general, Article 27 would be useful , if harmonised standards do not fit well or other forms of performance assessment are considered as too expensive. Art. 27 and 28 would by definition not apply in cases where safety requirements are concerned, thus it would not entail risks. DELETED : Article 27 should not only apply to SMEs or micro-enterprises, but enlarged to all enterprises. DELETED : Keep target group "micro-enterprises".

288

DELETED partial or specific reservations.

289

IMCO 81 ("equivalent level of health and safety") is supported in principle, but not in exact

wording by DELETED : The substance of this amendment could also be dealt with via the definition in Art. 2. DELETED /Cion: Sceptical to IMCO 81.

Article 28 [27]

Use of Specific Technical Documentation for individually manufactured products

290

1.

The performance assessment part of the applicable system, as set out in Annex V, may be replaced by the manufacturer fFor a construction product designed and

291

manufactured in a non-industrialised production process in response to a specific order, 292

and installed in a single identified work, the manufacturer may replace the applicable system for assessment of performance by a STD, demonstrating compliance of that product

with the applicable requirements.

2.

If a construction product belongs to a family of construction products for which the applicable system for assessment and verification of constancy of performance is system 1

293

or 2 , as set out in Annex V, the STD shall be verified by a relevant certification body as 294

referred to in Annex V. 295

290

DELETED : Clarify which parts can be replaced by a STD; use a more explicit wording.

DELETED : Use wording "type testing", "type calculation" etc. Cion: Wording is clear

enough.

291

DELETED : Replace "designed and manufactured in a non-industrialised production

process" by "individually manufactured" and define "individually manufactured product" in Art.2. DELETED : Define better to which products Art. 28 can apply. Cion: Better find a useful wording here, suggestions for a definition in Art. 2 always seemed controversial.

DELETED : As an alternative, just delete "non-industrialised". DELETED : Clarify whether

the STD would be "individual" as well in these cases. DELETED : Define "individually manufactured product" and "non-industrialised production process". DELETED : Refer to "individual order" and "specific project". DELETED : Delete Art. 28. DELETED : Use Art. 28 also for products constructed at the building site and for small series production. Cion: Sceptical to DELETED suggestion.

292

DELETED : Clarify what "replacing" means, e.g. no DoP, no type testing etc. Use wording:

"the applicable system according to Annex V by a STD demonstrating the ordered performance of that product."

293 Cion/DELETED : This provision could probably be restructured according to the new wording of Art. 27 (1).

294

DELETED : Give also attention to system 3. DELETED : Suggests: "...verified by a

notified certification body as referred to in Annex V and in the case of system 4 by a notified testing laboratory." Add new (2a): DELETED "The result of the verification and the involved notified body shall be indicated in the STD". DELETED : Article 28 should be excluded for structural construction products.

295

DELETED suggests complete re-drafting as follows: 1. For a construction product designed and manufactured in a non-industrialised production process in response to a specific order,

CHAPTER VII 296

N OTIFYING A UTHORITIES AND N OTIFIED B ODIES Article 29 [28]

otification

Member States shall notify the Commission and the other Member States of bodies 297 authorised to 298

carry out third-party tasks in the process of assessment and verification of constancy of 299

performance under this Regulation.

and installed in a single identified construction work, the manufacturer may replace the applicable harmonized technical specification relevant system for the assessment of the performance and for declaring essential characteristics by a STD. The STD shall demonstrate demonstrating compliance of the that construction product with the applicable requirements relevant for the identified construction work. 2. If a construction product belongs to a family of construction products for which -- the applicable system for assessment and verification of constancy of performance is system 1 or 2 as set out in Annex V, or -- the Commission Decision on the assessment and verification of constancy of performance requires for safety reasons system 3, the STD shall be verified by a relevant Technical Assessment Body certification body as referred to in Article 22. The provisions of Annex II shall not apply.

Cion: Sceptical to this suggestion. DELETED : Change wording, as system 4 cannot apply here.

296

DELETED : The reference provision from horizontal Regulation on "Accredited in-house

bodies" should also be included here. DELETED : In Chapter VII, insert a general reference to the horizontal Regulation and include here only those provisions where specific rules for construction products should apply. DELETED : Apply consistent terminology throughout, preferable always "notified body" where possible and not "performance assessment body", "certification body", "inspection body", etc, etc. Cion: There is a logical structure implied; at a certain stage a performance assessment body becomes a notified body.

297

DELETED : Use wording here "performance assessment bodies".

298 DELETED : "and verification" is not necessary to mention. Cion: Wording should stay as it is.

299 DELETED : Add "These bodies are thereafter called "notified bodies". In following articles

"performance assessment bodies" should be replaced by "notified bodies". DELETED : Define "performance assessment body". The rest of Article 30 should stay as close as possible to the horizontal framework.

Article 30 [29]

otifying authorities

1.

Member States shall designate a notifying authority that shall be responsible for setting up 300 301

and carrying out the necessary procedures for the assessment and notification of the bodies to be authorised to carry out third party tasks in the process of assessment and

verification of constancy of the declared performance for the purposes of this Regulation,

302

and for the monitoring of notified bodies, including compliance with the provisions of Article 33.

2.

Where notification is based on an accreditation certificate, Member States may decide that 303

the assessment and monitoring referred to in paragraph 1 shall be carried out by their national accreditation bodies within the meaning of and in accordance with Regulation

(EC) No. 765/2008.

3.

Where the notifying authority delegates, subcontracts or otherwise entrusts the 304

assessment, notification or monitoring referred to in paragraph 1 to a body which is not a

governmental entity, that the delegated, 305 or otherwise entrusted body shall be a legal entity and shall comply mutatis mutandis with the requirements laid down in Article 31. In

306

addition, it such body shall have arrangements to cover liabilities arising from its activities.

300

DELETED : Use wording "for the assessment based on criteria of Art. 33, and

notification..."

301

DELETED : Simplify into: "responsible for [...] notification of the bodies..." DELETED :

Clarify that notification has to be carried out within the territory of the relevant Member State.

302 DELETED : Replace "including" by "finalised to ascertain the maintenance of..." 303

DELETED : Make it obligatory to avoid parallel procedures: "Notification shall be based on

an accreditation certificate. Member States will decide that the assessment and..."

DELETED : Use wording: "The notification should be carried out on the basis of the

accreditation certificate of a national accreditation body in the understanding and according to the regulation (EC) Nr.... Member States may decide that the assessment and monitoring referred to in para 1 is carried out by that body." Cion: Sceptical to obligatory accreditation.

304

DELETED : Delete "assessment".

305

DELETED : Add "subcontracted or..."

306

DELETED : Details on how liability could be covered should be set out in an Annex. Cion:

Against.

307

4.

The notifying authority shall take full responsibility for the tasks performed by the 308

delegated or otherwise entrusted body referred to in paragraph 3. Article 31 [30]

Requirements relating to notifying authorities

1.

The notifying authority shall be established in such a way that no conflicts of interest with notified bodies occur.
2.

The notifying authority shall be organised and operated so as to safeguard the objectivity 309

and impartiality of its activities.

3.

The notifying authority shall be organised in such a way that each decision relating to notification of a performance assessment body to be authorised to carry out third party

tasks in the process of assessment and verification of constancy of the declared

performance is taken by competent persons different from those who carried out the

assessment.

4.

The notifying authority shall not offer or provide any activities that notified bodies perform, or consultancy services on a commercial or competitive basis.
5.

The notifying authority shall safeguard the confidentiality of the information obtained. 6. The notifying authority shall have a sufficient number of competent personnel at its 310

disposal for the proper performance of its tasks.

307

DELETED : This responsibility should only come into effect for non-public bodies. Cion:

Against.

308

DELETED : Add "subcontracted or..."

309

DELETED : Add "The notifying authority shall approve and publish rules for notification."

310

DELETED : Add a provision stating that "the procedure and rules with regard to the

functioning of notifying authorities should be made public."

Article 32 [31]

Information obligation for the notifying authorities

311

Member States shall inform the Commission and the other Member States of their national procedures for the assessment and notification of performance assessment bodies to be authorised to

carry out third party tasks in the process of assessment and verification of constancy of the declared

312

performance and the monitoring of notified bodies , and of any changes thereto to that information.

The Commission shall make that information publicly available.

Article 33 [32]

Requirements for notified bodies

1.

For the purposes of notification, a performance assessment body to be authorised to carry out third party tasks in the process of assessment and verification of constancy of the

313

declared performance shall meet the requirements set out in paragraphs 2 to 11.

2.

The performance assessment body concerned shall be established under national law and have legal personality.

311 DELETED : Unclear which new information requirement, if any, is implied here. Delete

"and the other Member States". DELETED : Information to other Member States goes beyond horizontal Decision. To be clarified whether a consultation procedure is implied. Cion: No, just information. The provision is however necessary, because this information is not covered by NANDO. DELETED : Information on NANDO is sufficient; this provision should not be interpreted as going beyond.

312

DELETED : Simplify to "assessment, notification and monitoring of notified bodies". Cion:

Against, some information goes prior to the notification, other parts of information later.

313

DELETED : See comment on definitions Art. 2. "performance assessment body"/"notified

body". DELETED : Replace "performance assessment body" by "body according to Annex II, para. 2."

3.

The performance assessment body concerned shall be a third-party body independent from 314

the organisation or the construction product it assesses. A body belonging to a business association or professional federation representing

undertakings involved in the design, manufacturing, provision, assembly, use or

maintenance of construction products which it assesses, can on condition that its

independence and the absence of any conflict of interest are demonstrated, be considered to

315

be such a body. 316

4.

The performance assessment body concerned , its top level management and the personnel responsible for carrying out the third party tasks in the process of assessment and

verification of constancy of the declared performance shall not be the designer,

manufacturer, supplier, installer, purchaser, owner, user or maintainer of the construction

products which they assess, nor the authorised representative of any of those parties. This

shall not preclude the use of assessed products that are necessary for the operations of the

notified body or the use of the products for personal purposes.

They The body concerned, its top level management and the personnel responsible for

carrying out the third party tasks in the process of assessment and verification of constancy

of the declared performance shall not become directly involved in the design, manufacture

or construction, the marketing, installation, use or maintenance of those construction

products, nor represent the parties engaged in those activities. They shall not engage any

activity that may conflict with their independence or judgement and integrity related to the

activities for which they have been notified. This shall in particular apply to

consultancy services.

The notified body shall ensure that activities of its subsidiaries or subcontractors do not

affect the confidentiality, objectivity and impartiality of its assessment and/or verification

activities.

314 DELETED suggests wording: "...third-party body impartial in relation to all the circles, groups and persons who are directly and indirectly linked with construction products".

315 DELETED : Delete second sub-para. of (3), as the substance is already covered by para. 2 and by the first sub-paragraph. Cion: Though legally not indispensable it might be useful for clarification.

316

DELETED : "performance assessment body" should be replaced by "notified body".

5.

The notified body and its personnel shall carry out the third party tasks in the process of assessment and verification of constancy of performance, with the highest degree of

professional integrity and requisite technical competence in the specific field and must be

free from all pressures and inducements, particularly financial, which might influence their

judgement or the results of their assessment and/or verification activities, especially from

persons or groups of persons with an interest in the results of those activities.

6.

The notified body shall be capable of carrying out all the third party tasks in the process of assessment and verification of constancy of performance assigned to it such a body in

accordance with Annex V in relation to and for which it has been notified, whether those

tasks are carried out by the notified body itself or on its behalf and under its responsibility.

At all times and for each system of assessment and verification of constancy of

performance and for each kind or category of construction products, characteristics and

tasks in relation to for which it is has been notified, the notified body shall have at its

disposal the necessary:

(a) personnel with technical knowledge and sufficient and appropriate experience to perform the third party tasks in the process of assessment and verification of

constancy of performance;

(b) description of procedures according to which the assessing of performance is carried out, ensuring the transparency and the ability of reproduction of these procedures. It

shall have appropriate policy and procedures in place that distinguish between tasks

it carries out carried out as notified body and any other activities activity;

(c) procedures for the performance of to perform their activities which take due account of taking into consideration the size of an undertaking, the sector in which it

operates, its the structure of the undertakings, the degree of complexity of the

product technology in question and the mass or serial nature of the production

process.

It shall have the means necessary to perform the technical and administrative tasks

connected with the activities for which it is notified in an appropriate manner and shall

have access to all necessary equipment or facilities.

7.

The personnel responsible for carrying out the activities, in relation to for which the body has been notified, shall have the following:

(a) sound technical and vocational training covering all the third party tasks in the process of assessment and verification of constancy of the declared performance of

the relevant scope for which the body has been notified;

(b) satisfactory knowledge of the requirements of the assessments and verifications they carry out and adequate authority to carry out such operations;

(c) appropriate knowledge and understanding of the applicable harmonised standards and of the relevant provisions of the Regulation;

(d) the ability required to draw up the certificates, records and reports to demonstrate that the assessments and the verifications have been carried out.

8.

The impartiality of the notified body, its top level management and assessment personnel shall be guaranteed.

The remuneration of the notified body's top level management and assessment personnel

shall not depend on the number of assessments carried out or on the results of such

assessments.

317

9.

The notified body shall take out liability insurance unless liability is assumed by the State in accordance with national law, or the Member State itself is directly responsible for

the assessment and/or the verification performed.

10.

The personnel of the notified body shall be bound to observe professional secrecy with regard to all information gained in carrying out its tasks under Annex V, except in relation

to the competent administrative authorities of the Member State in which its activities are

carried out. Proprietary rights shall be protected.

317

DELETED : Define criteria for liability insurance for notified bodies in a separate Annex.

Cion: Would be deviation from horizontal framework. DELETED : Add provision stating that liability should take into account the risks related to the notification.

11.

The notified body shall participate in, or ensure that its assessment personnel is informed of, the relevant standardisation activities and the activities of the notified body co-

ordination group established under this Regulation and apply as general guidance the

administrative decisions and documents produced as a work result of that group.

318

Article 34

319

Presumption of conformity

When a performance assessment body to be authorised to carry out third party tasks in the process

320

of assessment and verification of constancy of the declared performance can demonstrates its 321

conformity with the criteria laid down in the relevant harmonised standards or parts thereof, the references of which have been published in the Official Journal of the European Union, it shall be

322

presumed to comply with the requirements set out in Article 33 insofar as the applicable 323

harmonised standards cover these requirements.

318

DELETED : Add a provision concerning a list of declarations of performance issued by

notified bodies. DELETED : At least web-site availability of such a list should be required.

319

DELETED : Clarify scope and purpose of this article. DELETED : Add more wording

clarifying that the standards mentioned here relate to the harmonised standards for notified bodies. Cion: Indeed, the standards meant here are one way for the bodies to show compliance with some (but not necessarily all) requirements of Article 33. The wording can be adapted, if necessary. DELETED : Even after clarification by the Cion, delete Article 34 as being in contradiction to Article 30.

320

DELETED : "performance assessment body" should be replaced by "notified body".

DELETED : It should be clarified whether harmonised standards for conformity assessment

bodies are also completely applicable for performance assessment bodies.

321 DELETED : Reword to "performance assessment body demonstrates its ability to cover the requirements of the third party according to the relevant harmonised standards..."

DELETED : Use wording "laid down in the relevant standards for performance assessment

bodies...the references..."

322

DELETED : Prefers active grammar: "the notifying authorities shall presume that the

performance assessment body complies..." Cion: Usual wording is passive. DELETED : Final decision for the notification of a body lies with the notifying authority of the Member State.

323

DELETED : Add "standards of the series EN 17000 and EN 45000..."

Article 35 [33]

Subsidiaries and subcontracting of notified bodies

1.

Where the notified body subcontracts specific tasks connected with the third party tasks in the process of assessment and verification of constancy of performance or has recourse to a

subsidiary, it shall ensure that the subcontractor or the subsidiary meets the requirements

324

set out in Article 33, and shall inform the notifying authority accordingly.

2.

The notified body shall take full responsibility for the tasks performed by subcontractors or subsidiaries wherever these are established.
3.

Activities may be subcontracted or carried out by a subsidiary only with the agreement of 325

the client.

4.

The notified body shall keep at the disposal of the notifying authority national authorities the relevant documents concerning the assessment of the qualifications of the

subcontractor's or the subsidiary's qualifications and the work carried out by them the

subcontractor or the subsidiary under Annex V.

324

DELETED : Modify as follows: "...meets the requirements set out in Article 33. The

notifying authority, on the basis of the criteria of Art. 33, verifies the suitability of the subcontractor and authorizes the sub-contract." DELETED : Specify the tasks of the subcontractor in greater detail. It should not be possible to subcontract all tasks. Clarify which requirements of Article 33 will also fall on subcontractors. Cion prefers to stick to wording of the horizontal framework concerning subcontracting possibilities.

325

DELETED : Delete (3); reference to client does not fit here. Cion: Against deletion.

Article 36 [34]

326

Witness tests 327

1.

Where justified by technical, economical or logistic reasons, notified bodies may decide to carry out the tests referred to in Annex V, or have such tests carried out under their

supervision, either in the manufacturing plants using the test equipments of the internal

328

laboratory of the manufacturer or, with the prior consent of the manufacturer, in a private or public laboratory, using the test equipments of that laboratory.

2.

Before carrying out those tests, the notified body shall check whether the test equipment 329

has an appropriate calibration system and whether that system is operational. Article 37 [35]

330

Application for notification

1.

A body to be authorised to carry out third party tasks in the process of assessment and 331

verification of constancy of performance shall submit an application for notification to the notifying authority of the Member State in which it is established.

326

DELETED : Article should be called "Use of facilities outside the testing laboratory".

327

DELETED : Replace "notified bodies" by "notified testing laboratories".

328

DELETED : Add "of the manufacturer of the products in question" or a similar wording such

as "In the manufacturing plants, only the owner of the plant will be able to carry out the test on the pro-ducts and not by any other manufacturer. Under no circumstances, the laboratory of the manu-facturer shall be granted the status of notified body, although it may perform these activities."

329

DELETED : Add the following: "Notified bodies carrying out such tests should be

specifically assessed for competence to work away from their own accredited test facilities".

DELETED : Use wording: "...whether the test equipment is under a metrology supervision

and whether this supervision ensures the measurement coherence." DELETED : Use wording "...is fit for intended use and operational. DELETED : Replace (2) by the following two paragraphs: 2. Article 35 shall apply to the manufacturer, private laboratory or public laboratory in as far as the tests being conducted apply. 2a. The tests conducted shall fall within the scope of the notified body's designation.

330

DELETED : Stick to wording of horizontal framework for Art. 37-45.

331 Following a remark by the DELETED delegation, the Cion made clear that even accredited

bodies having received their notification according to the current system will have to comply with some new criteria after 2011. In this regard, they cannot simply be extended from the requirement to apply (again) for notification. DELETED : Reservation on the whole article.

2.

The application shall be accompanied by a description of the activities to be performed, the assessment and/or verification procedures for which the body claims to be competent, as

well as by an accreditation certificate, where one it exists, delivered issued by the national

accreditation body within the meaning of Regulation (EC) No ..., attesting that the body

meets the requirements laid down in Article 33.

3.

Where the body concerned cannot provide an accreditation certificate, it shall provide the notifying authority with all documentary evidence necessary for the verification,

recognition and regular monitoring of its compliance with the requirements laid down in

Article 33.

Article 38 [36]

otification procedure

1.

Notifying authorities may notify only bodies which have satisfied the requirements laid down in Article 33.
2.

They shall notify the Commission and the other Member States using the electronic notification tool developed and managed by the Commission.

Exceptionally, for horizontal notifications referred to in the second subparagraph of

paragraph 3, for which the appropriate electronic tool is not available, hard copy of the

332

notification shall be accepted.

3.

The notification shall include full details of the functions to be performed, reference to the 333

relevant harmonised technical specification and, for the purposes of the system set out in 334 335

point 1.4 of Annex V , the essential characteristics for which the body is competent.

332

DELETED : Scrutiny reservation on the technical possibilities and practical implications

concerning horizontal notifications. If possible, these horizontal notifications should be carried out through NANDO. DELETED : NANDO system would be sufficient, thus revise this sub-paragraph. Furthermore, define "horizontal notification" in Article 2. DELETED : Delete second sub-paragraph as hard copies for horizontal notifications are not practical and details can be defined elsewhere. DELETED : Define "horizontal notifications".

333

DELETED : Use wording "technical specification/specifications".

334

DELETED : Use wording "points 1.1., 1.2 and 1.4."

335

DELETED : Replace "essential characteristics" by "test methods". DELETED : Replace

"essential characteristics" by "specific test methods supporting essential characteristics".

However, reference to the relevant harmonised technical specification is not required in the

336

following cases of essential characteristics: (a) reaction to fire;

(b) resistance to fire;

(d) noise absorption.

4.

Where a notification is not based on an accreditation certificate as referred to in Article 37 (2), the notifying authority shall provide the Commission and the other Member States

with all documentary evidence which attests to the notified body's competence and the

arrangements in place to ensure that that the body will be regularly monitored regularly

and will continue to satisfy the requirements laid down in Article 33.

5.

The body concerned may perform the activities of a notified body only where no objections are have been raised by the Commission and or the other Member States within

338

two weeks of following a notification where in case of an accreditation certificate is used or and within two months of following a notification in case where accreditation is

339

not used.

Only such a body shall be considered as a notified body for the purpose of this Regulation.

6.

The Commission and the other Member States shall be notified of any subsequent relevant changes to the notification.

336

DELETED : Modify wording to "...is not required for test methods supporting the following

essential characteristics:" DELETED : Shift this list to an annex in order to make future modifications easier.

337

DELETED : Add a point "(e) dangerous substances".

338

DELETED : Prefers "thirty days". DELETED : "one month".

339

DELETED : Wording should be: "in a the case of where an accreditation certificate is used

and within two months following a notification in a case where accreditation is not used."

Article 39 [37]

Identification numbers and lists of notified bodies

1.

The Commission shall assign an identification number to a notified body. It shall assign a single such number even where the body is notified under several

Community acts.

2.

The Commission shall make publicly available the list of the bodies notified under this Regulation, including the identification numbers that have been allocated to them and the

340

activities for which they have been notified. The Commission shall ensure that this list is kept up to date.

Article 40 [38]

Changes to the notification

1.

Where a notifying authority has ascertained or has been informed that a notified body no longer meets the requirements laid down set out in Article 33, or that it is failing to fulfil

its obligations, the notifying authority shall restrict, suspend or withdraw the notification as

appropriate, depending on the seriousness of the failure to meet those requirements or fulfil

those obligations. It shall immediately inform the Commission and the other Member

341

States thereof accordingly.

2.

In the event case of withdrawal, restriction or suspension of notification or where the notified body has ceased its activity, the notifying Member State concerned shall take the

342

appropriate steps to ensure that the files of that body are either processed by another notified body or kept available for the responsible notifying and market surveillance

authorities at their on request.

340

DELETED : Unclear whether this implies new technical requirements. NANDO should be

sufficient for this requirement as well.

341

DELETED : Add "thereof, using the electronic notification tool developed and managed by

the Commission."

342

DELETED : Add clarification "processed with the consent of the applicant ..."

Article 41 [39]

Challenge of the competence of notified bodies

1.

The Commission shall investigate all cases where it doubts or doubt is brought to its attention regarding as to the competence of a notified body or the continued fulfilment by a

notified body of the requirements and responsibilities to which it is subject placed on it.

2.

The notifying Member State shall provide the Commission, on request, with all information related to the basis for notification or the maintenance of the competence of

the body concerned.

3.

The Commission shall ensure that all sensitive information obtained in the course of its investigations is treated confidentially.
4.

Where the Commission ascertains that a notified body does not meet, or no longer meets, the requirements for its notification, it shall inform the notifying Member State accordingly

thereof and request it to take the necessary corrective measures, including de-notification,

if necessary.

Article 42 [40]

Operational obligations for notified bodies

1.

Notified bodies shall carry out third party tasks in accordance with the systems of assessment and verification of constancy of performance provided for in Annex V.
2.

Assessments and verifications of constancy of performance shall be carried out in a proportionate manner, avoiding unnecessary burden for economic operators. The notified

bodies shall perform their activities taking due account into consideration of the size of an

undertaking, the sector in which it operates, its the structure of the undertakings involved,

the relative degree of complexity of the product technology in question used by the

343

construction products and the mass or serial nature character of the production process.

343

DELETED : Leave only the first sentence of para. 2 and delete the whole rest (originates

from horizontal Decision but does not fit here).DELETED : Would prefer exact wording from horizontal Decision in the first sub-para.

In so doing they it shall nevertheless respect the degree of rigour required for the product

344

by this Regulation and the role of the product in the safety of the works. 345

3.

Where, in the course of the monitoring activity aiming at the verification of the constancy of the manufactured product performances, a notified body finds that a construction

product no longer has the same performance compared to that of the product-type, it shall

require the manufacturer to take appropriate corrective measures and shall suspend or

346

withdraw its certificate if necessary.

4.

Where corrective measures are not taken or do not have the required effect, the notified body shall restrict, suspend or withdraw any certificates, as appropriate.

Article 43 [41]

Information obligation for notified bodies

1.

Notified bodies shall inform the notifying authority of the following: (a) any refusal, restriction, suspension or withdrawal of certificates;

(b) any circumstances affecting the scope of and conditions for notification;

(c) any request for information on assessment and/or verification of constancy of performance activities carried out which they have received from market surveillance

347

authorities;

344

DELETED : Replace "and the role of the product in the safety of the works" by "in particular

as decided from the criteria set out in Article 19." DELETED : Add the wording from the horizontal framework: "Where, in the course of the initial inspection of the manufacturing plant and of FPC, a NB finds that the manufacturer has not ensured the constancy of the manufactured product performances, it shall require the manufacturer to take appropriate corrective measures and shall not issue a certificate." DELETED: Use wording: "...and the role of the product in relation to the basic works requirements."

345

DELETED : Insert new (2a) similar to CP Directive: "Where a notified body finds that

requirements laid down in this regulation or corresponding harmonised standards or technical specifications have not been met by a manufacturer, it shall require that manufacturer to take appropriate corrective measures and shall not issue a conformity certificate."

346

DELETED : Wording could be understood as giving market surveillance tasks to notified

bodies.

347

DELETED : It must be ensured that the notified bodies are obliged to give to the Member

State authorities any information concerning the certificate, the assessment and/or verification

(d) on request, third party tasks in accordance with the systems of assessment and verification of constancy of performance carried out within the scope of their

notification and, any other activity performed, including, cross-border activities and

subcontracting.

2.

Notified bodies shall provide the other bodies notified under this Regulation carrying out similar third party tasks in accordance with the systems of assessment and verification of

constancy of performance and covering the same construction products with relevant

information on issues relating to negative and, on request, positive results from these

348

assessments and/or verifications. Article 44 [42]

Exchange of experience

The Commission shall provide for the organisation of exchange of experience between the Member

States' national authorities responsible for policy on notification.

Article 45 [43]

Coordination of notified bodies

The Commission shall ensure that appropriate coordination and cooperation between bodies

notified under Article 29 are is put into place and properly operated in the form of groups of

349

notified bodies both at the sectoral and cross sectoral level. Member States shall ensure that the bodies notified by them participate to the work of those groups,

350

directly or by means of designated representatives.

of constancy of performance activities.

348 DELETED : Meaning of "negative" and "positive" is not straightforward in this context. Confidentiality issues which could be evoked here need to be addressed.

349 DELETED : For a sector-specific Regulation it should read: "notified under Article 29 is put into place and properly operated in the form of a group of notified bodies".

350

DELETED : Obligation to Member States seems excessive. DELETED : Add "...or they

ensure that their representatives are going to be informed."

CHAPTER VIII M ARKET SURVEILLANCE AND SAFEGUARD PROCEDURES

351

Article 46 [44] 352

Procedure to deal at national level with construction products presenting a risk at national level 1. Where the market surveillance authorities of one Member State have taken action pursuant 353

to Article 20 of Regulation (EC) No 765/2008 or where they have sufficient reason to believe that a construction product does not achieve the declared performances and/or

presents a risk for the health or safety of persons or for other issues of public interest

354

protection covered by this Regulation, they shall perform carry out an evaluation in 355

relation to the product concerned covering all the requirements laid down by this 356

Regulation. The relevant concerned economic operators shall cooperate as in any 357

necessary way with the market surveillance authorities.

351

DELETED : Insert a new Article 45a at the beginning of this Chapter as follows: "Market

surveillance authorities shall perform appropriate checks on the characteristics of construction products on an adequate scale, by means of documentary checks and, where appropriate, physical and laboratory checks on the basis of adequate samples. When doing so they shall take account of established principles of risk assessment, complaints and other information. The article of Regulation No 765/2008 applies to the measures referred to the above."

352

DELETED : Some fine-tuning is necessary concerning the procedures in cases where

products present a risk and should be immediately withdrawn from the market. DELETED : In Chapter VIII, insert a general reference to the horizontal Regulation and include here only those provisions where specific rules for construction products should apply.

353

DELETED : Reservation on wording "sufficient reason". Cion: Wording can stay as it is.

354

DELETED : Clarify if the procedure can also be applied for non-harmonised construction

products and non-CE-marked construction products. Cion: Yes in principle, although less relevant in practice. The case of risk requires rapid action and the authorities should not be obliged to check whether a certain product falls in part or total outside this Regulation.

DELETED : Against the inclusion of products outside this regulation into this procedure

against risky products- Action under this regulation can only be taken if there are legal requirements under this Regulation.

355

DELETED : Delete "all"; "the requirements" is sufficient. DELETED : Clarify scope of

"performing an evaluation". Prsdy: "all the requirements as relevant..." could be a compromise.

356

DELETED : Add "The activities of market surveillance authorities can also extend to

construction products stored on the construction site.", in order to meet practical requirements for products not stored at distributor's premises.

357

DELETED : Suggests wording: "economic operators must duly cooperate in all necessary

ways with..."

Where, in the course of that evaluation, the market surveillance authorities find that the

construction product does not comply with the requirements laid down by this Regulation,

they shall without delay require the relevant economic operator to take all appropriate

358

corrective actions to bring the product into compliance with those requirements or to 359

withdraw the product from the market, or to recall it within such a reasonable period, commensurate with the nature of the risk, as they may prescribe.

360

The market surveillance authorities shall inform the relevant notified body accordingly. Article 21 of Regulation (EC) N°765/2008 shall apply applies to the measures referred to

in the second subparagraph above.

361

2.

Where the market surveillance authorities consider that the non-compliance is not limited to their national territory, they shall inform the Commission and the other Member

362

States of the results of the evaluation and of the actions which they have required the economic operator to take.

363

3.

The economic operator shall ensure that any all appropriate corrective action actions is are taken in respect of all the construction products concerned which he has made available

364

on the market throughout the Community.

358

DELETED : Add "requirements and declared performances or to..."

359

DELETED : For construction products a "withdrawal" from the market is not always

realistic, it would rather come to a ban on use at the construction site.

360

DELETED : Add "...inform the relevant notified body if one is involved." DELETED : Add

"....notified body and the national notifying authority." DELETED : To be explained why the notified body and no other actor has to be informed. DELETED : Information flows should be from both sides. Make reference to ADCO-CPD Group in order to establish the exchange of information and the cooperation between the authorities. Cion: Hesitant to change wording from the horizontal framework here.

361

DELETED : Replace "consider" by "establish by evidence".

362

DELETED : Add more details on content and method of this information. DELETED :

Delete "and the other Member States".

363

DELETED : Use wording "all corrective actions".

364

Following a remark by the DELETED delegation, the Cion clarified that a decision by one

market surveillance authority might indeed imply consequent action by other market surveillance authorities. However, withdrawal from the market is only one possibility among several corrective actions.

4.

Where the relevant economic operator, within the period referred to in the second subparagraph of paragraph 1, does not take adequate corrective actions, the market

surveillance authorities shall take all appropriate provisional measures to prohibit or

365

restrict the making available of the construction product on the national market or to withdraw the construction product from that market or to recall it.

They shall inform the Commission and the other Member States, without delay, of such

measures.

5.

The information referred to in paragraph 4 shall include provide all available details, in particular as regards the necessary data necessary for the identification of the non-

compliant construction product, the origin of the construction product, the nature of the

non-compliance alleged and the risk involved, the nature and duration of national measures

taken as well as the view points arguments put forward by the relevant economic operator

concerned. In particular, the market surveillance authorities shall indicate whether the non-

compliance is due to either of the following:

(a) failure of the product to meet the requirements 366 related to the health or safety of persons or to other issues of public interest protection laid down by this

367

Regulation; 368

(b) shortcomings in the harmonised technical specifications or in the STD.

365 DELETED : "Restriction of making available on the market" is a concept to be defined in Article 2.

366

DELETED : Use wording: "product to achieve the declared performance and/or to meet the

requirements...". Cion: This idea merits further reflection.

367

DELETED : Replace the text of (a) with: "failure of the product to conform with the

information provided in the declaration of performance or CE marking".

368

DELETED : Delete "or in the STD". DELETED : Use wording "...harmonised technical

specifications, ETAs, third-party tasks carried out according to Annex V or in the STD." Cion: The DELETED suggestion merits further reflection.

6.

Member States other than the Member State which initiated initiating the procedure shall 369

without delay inform the Commission and the other Member States of any measures adopted and of any additional information at their disposal relating to the non-compliance

of the construction product concerned at their disposal, and, in the event of disagreement

with the notified national measure, of their objections.

370

7.

Where, within fifteen working days of receipt of the information referred to in paragraph 371

4, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by a Member State in relation to the construction product

concerned, the that measure shall be deemed justified.

8.

Member States shall ensure that the appropriate restrictive measures are taken in respect of the construction product concerned, such as withdrawal of the product from their market,

372

without delay. Article 47 [45]

Community safeguard procedure

1.

Where, on completion of the procedure set out in Article 46(3) and (4), objections are raised against a national measure taken by of a Member State or where the Commission

considers the a national measure to be contrary to Community legislation the Commission

shall without delay enter into consultation with the Member States and the relevant

economic operator(s) and shall evaluate proceed to the evaluation of the national measure.

On the basis of the results of that evaluation, the Commission shall decide take a decision,

indicating whether the measure is justified or not.

The Commission shall address its decision to all Member States and shall immediately

373

communicate it to them and to the relevant economic operator(s).

369

DELETED : Provisions of Articles 46-49 should be complemented by a more formalised co-

operation and exchange between market surveillance authorities. Cion: No need for it in this regulation, is covered in horizontal framework.

370 DELETED suggests thirty working days. Cion: Against. DELETED : Wording of the whole article 46 might lead to too tight working schedules for market surveillance authorities.

371 DELETED : Method of information needs to be defined. 372

DELETED : Database for information on performance assessment and verification should be

set up, also because it would facilitate information requirements for market surveillance authorities.

2.

If the national measure is considered justified, all Member States shall take the necessary measures to ensure that the non compliant construction product is withdrawn from their

markets. Member States and shall inform the Commission accordingly thereof. If the

national measure is considered unjustified, the Member State concerned shall withdraw the

measure.

3.

Where the national measure is considered to be justified and the non-compliance of the construction product is attributed to shortcomings in the harmonised standards as referred

to in Article 46(5)(b), the Commission must inform the relevant European standardisation

374

body or (bodies) and shall bring the matter before the Committee set up by under Article 5 of Directive 98/34/EC. The Committee shall must consult with the relevant European

standardisation body or bodies and deliver its opinion without delay.

Where the national measure is considered to be justified and the non-compliance of the

375

construction product is attributed to shortcomings in the EAD or in the STD as referred 376

to in Article 46(5)(b), the Commission shall adopt the appropriate measures.

373

DELETED : Add "and where necessary, propose appropriate measures."

374

DELETED : Mention first an involvement of Standing Committee under Article 51.

375

DELETED : Use wording "shortcomings in the harmonised technical specification as

referred to..."

376

DELETED : Clarify the "appropriate measures", as the shortcomings of EADs or STDs are

within the responsibilities of different actors. Cion: This does not prevent the Cion from taking appropriate action. Shortcomings of a STD can lead to a situation where an action of one efficient market surveillance authority will have an effect - via the Commission - on an other Member State where the STD (with inherent shortcomings) had been issued.

DELETED : Use wording "...shall bring the matter before the Committee set up under

Article 51 of this Regulation and subsequently adopt the appropriate measures.

Article 48 [46]

Complying construction products which nevertheless present a risk to health and safety

1.

Where , a Member State after having performed an evaluation under Article 46(1), a Member State finds that although a construction product is in compliance with this

Regulation, it presents a risk to for the health or safety of persons or for to other aspects

377

issues of public interest protection, it shall require the relevant economic operator to take all appropriate measures to ensure that the construction product concerned, when placed on

the market, no longer presents that risk, or to withdraw the construction product from the

378

market or to recall it within such a reasonable period , commensurate with the nature of the risk, as it may prescribe.

2.

The economic operator shall ensure that any corrective actions is are taken in respect of all the construction products concerned which he has made available on the market throughout

the Community.

3.

The Member State shall immediately inform the Commission and the other Member States. The That information shall include provide all available details, in particular as regards the

necessary data necessary for the identification of the construction product concerned, the

origin and the supply chain of the product, the nature of the risk involved and the nature

and duration of the national measures taken.

4.

The Commission shall without delay enter into consultation with the Member States and the relevant economic operator(s) and shall evaluate proceed to the evaluation of the

national measures taken. On the basis of the results of that evaluation, the Commission

shall decide take a decision, indicating whether the measure is justified or not, and where

necessary, propose appropriate measures.

5.

The Commission shall address its decision to all Member States and shall immediately communicate it to them and to the relevant economic operator(s).

377

DELETED : Add as a specificity of construction products: "...public interest protection, or

its incorporation in a permanent manner in construction works or parts thereof presents a risk for the satisfaction of the basic works requirements, it shall..." DELETED : Article 48 seems more relevant for consumer products, for construction products the dangerous ones would normally be detected through Art. 46 procedure anyway. Cion: Even if the practical relevance is limited, there is no need to depart from the horizontal framework.

378

DELETED : Prefers "immediately" instead of "within such reasonable period".

Article 49 [47]

Formal non-compliance

1.

Without prejudice to Article 46, where a Member State makes one of the following findings, it shall require the relevant economic operator to put an end to the non-

compliance concerned:

(a) the CE marking has been affixed in violation of Article 7 or Article 8;

(b) the CE marking has not been affixed, when required according to Article 7(1);

(d) the declaration of performance has not been drawn up in accordance with Articles 4, 5 and 6;

(e) the technical documentation is either not available or not complete.

379

2.

Where the non-compliance referred to in paragraph 1 continues , the Member State shall take all appropriate measures to restrict or prohibit the making available on the market of

380

the construction product or ensure that it is recalled or withdrawn from the market.

379

DELETED : Use wording "continues after the national measures are taken, the Member

State..."

380

Cion: Clarifies that products legally already present on the market are not concerned - see also

Art. 53 (1)- only new products have to comply with new or updated standards; in the case of a missing CE-marking, the economic operator can be required to affix it or to withdraw the product. DELETED : Add a new Article 49a "Administrative procedure": (1) Member States shall bring into force the laws, regulations and administrative provisions for the administrative procedures required to execute this regulation complementary to the provisions foreseen in this regulation on the basis of the principles of the rule of law. (2) The competent national authorities may have access to all construction products and to the business rooms or other sites, where construction products are manufactured or otherwise kept, insofar this is necessary to fulfil their legal duties. They may do this beyond the usual business hours only in the case of danger in delay. DELETED : Add a new Article 49a with the following content: "(1) Member States shall designate a surveillance authority that is responsible for setting up and carrying out the necessary administrative procedures and the practical actions for Market surveillance for the purposes of this Regulation"(2) Member States shall bring into force the laws, regulations and administrative provisions for the administrative procedures required to execute this regulation complementary to the provisions foreseen in this regulation on the basis of the principles of the rule of law. (3) The competent national authorities may have access to all construction products and to the business rooms or other sites, where construction products are manufactured or otherwise kept, insofar this is necessary to fulfil their legal duties. They may do this beyond the usual business hours only in the case of danger in delay

CHAPTER IX F INAL PROVISIONS

Article 50 [48]

Amendment of Annexes

1.

Commission may amend Annexes I to V. 381 2. Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article

382

51(2). Article 51 [49]

383

Committee

1.

The Commission shall be assisted by a committee, called Standing Committee of 384

Construction.

381

DELETED : Replace with "II to V." DELETED : Clarify that Member States can add other

requirements than those mentioned in Annex I. Cion: Should be done in a recital, if necessary, not in this article.

382

DELETED : Add (2a): Before adoption of amendments of an Annex, the Committee referred

to in Article 51 shall be consulted.

383

Several delegations take the view that the Standing Committee should have a larger role in the

detailed provisions. Cion: Not possible according to the horizontal legal acts and Comitology rules.

384

DELETED : Add the following sentence: "Member States shall be represented at adequate

level of administrative and technical competences".

2.

Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 385 386

1999/468/EC shall apply, having regard to the provisions of Article 8 thereof. Article 52 [50]

Repeal

387

1.

Directive 89/106/EEC is repealed. 388
2.

References to the repealed Directive shall be construed as references to this 389

Regulation.

385

DELETED : Reference should also be to Article 3. (consultative role of the Committee).

DELETED : Add new para 2a: "Where reference is made to this paragraph, Article 3 and

Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

386

DELETED : Add new para 2a on guidance papers: "Guidance papers may be elaborated by

the Commission, in conformity to article 5a(1) to (4) of decision 1999/468/EC. " DELETED : Add new para (2a): The Committee may, at the request of its chairman or of a Member State, examine any question posed by practical application of this Regulation. The Committee must be consulted by the Commission: a) before any mandates of harmonized standards (see Article 16) b) before any decision about the definition of conditions referring to levels or classes of performances (see art. 18.3). The Committee must be consulted by the Commission or the Member States in case of formal objection against harmonized standards (see article 17.1)."

387

DELETED : Use wording "is repealed with effect from the date referred to in the first

paragraph of Article 54 except in respect of [ add relevant provisions ] of that Directive when the date shall be 1 July 2011." Cion: Already covered through Article 54 which includes reference to Article 52.

388

DELETED : Use wording "...repealed Directive and the interpretative document and

technical specifications pursuant to Article 3 and Article 4 of the repealed Directive shall be construed ..." This is necessary to cover Article 10 of the Drinking Water Directive (98/83/EC). Cion: Problem is covered by Art. 52 (2).

389

DELETED : Add: "this Regulation and shall be read in accordance with the correlation table

set out in Annex [xy]."

Article 53 [51]

Transitional provisions

1.

Construction products which have been placed on the market in accordance with Directive 89/106/EEC before 1 July 2011 shall be deemed to comply with this Regulation.

390

2.

Manufacturers and importers may make a declaration of performance on the basis of a certificate of conformity or a declaration of conformity, which has been issued before 1

July 2011 in accordance with Directive 89/106/EEC.

391

3.

Guidelines for European technical approval which were published before 1 July 2011 in accordance with Article 11 of Directive 89/106/EEC may be used as EADs.
4.

Manufacturers and importers may use European technical approvals issued in accordance with Article 9 of Directive 89/106/EEC before 1 July 2011as European Technical

392

Assessments throughout the period of validity of those approvals. 393

390

DELETED : Delete importer as a consequence to deletion from Art. 4 and Art.7.

391

DELETED : Give CUAPs the same status as Guidelines here by adding "The Commission

after consulting the organisation of TABs shall publish a list of Common Understanding of Attestation Procedures (CUAPs) which were published before 1 July 2011 in accordance with Article 11 of Directive 89/106/EEC and may be used as EDAs." DELETED : Quote guidance papers also in other articles of this Regulation. Cion: Does not concern Article 53. Status of guidance papers is unchanged, but it would be unusual for legislation to quote them in several articles.

392

DELETED : Add a clause stating that the decisions on attestations of conformity remain

valid for the purposes of Article 19. DELETED : Notified bodies and TABs need transitional provisions as well.

393

DELETED suggest a new article on penalties: "The Member States shall lay down rules on

penalties, which may include criminal sanctions for serious infringements, applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive and may be increased if a similar infringement of the provisions of this Regulation has previously been committed. The Member States shall notify the Commission of those provisions by 1 July 2011 and shall notify it without delay of any subsequent amendment affecting them." Cion: Flexible to this suggestion.

Article 54 [52]

Entry into force

394

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

However, Articles 3 to 21, 26, 27 and 28, Articles 46 to 50, 52 and 53 as well as Annexes I, II, III

395

and V shall apply from 1 July 2011.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament For the Council The President The President

394

DELETED : Replace by "three months after the publication..."

395

DELETED : To be clarified why different dates are indispensable.

ANNEX I

396

Basic works requirements 397

Construction works as a whole and in their separate parts must be fit for their intended use. 398

Subject to normal maintenance, basic works requirements must be satisfied for an economically 399 400

reasonable working life.

1.

M ECHANICAL RESISTANCE AND STABILITY The construction works must be designed and built in such a way that the loadings that are liable to

act on them during their constructions and use will not lead to any of the following:

(a) collapse of the whole or part of the work;

(b) major deformations to an inadmissible degree;

(c) damage to other parts of the works or to fittings or installed equipment as a result of major deformation of the load-bearing construction;

401

(d) damage by an event to an extent disproportionate to the original cause.

396

Following a remark by DELETED , the Cion clarified that it is possible to add other basic

works requirements after adoption of the Regulation.

397

DELETED : Add "...intended use and must take also into account the health and safety of

persons and the protection of the environment during the construction phase and the life cycle of the works. DELETED : Add "...intended use as well as take into account the health and safety of persons and minimise the effects on the environment during the whole lifecycle of the constructions works". DELETED : Concept of fitness for use continues to exist here, although "intended use" is rejected by Cion in Article 4.

398

DELETED : Suggests modification to read: "Provided that construction works are subjected

to normal maintenance, basic works..."

399

DELETED : Replace "an economically reasonable working life" by "the whole life cycle of

the works". DELETED : Add: "Member States are not obliged to develop regulations on each Basic works requirement mentioned below. On the other hand, Member States may impose additional Basic works requirements in their regulation submitted to the procedure of the Directive 98/34." DELETED : Add: "EUROCODEs should be the basis for the assessment of the performance of construction works where appropriate."

400

DELETED : Cion should develop interpretative documents and guidance papers to

(modified) BWRs. DELETED : Re-insert introductory sentence from CPD: "The products must be suitable for construction works which (as a whole and in their separate parts) are fit for their intended use, account being taken of economy, and in this connection satisfy the following essential requirements where the works are subject to regulations containing such requirements."

401

DELETED : Add point (e): "occupants and animals can leave the works or be rescued by

other means."

2.

S AFETY IN CASE OF FIRE The construction works must be designed and built in such a way that in the event of an outbreak of

fire:

(a) the load-bearing capacity of the construction can be assumed for a specific period of time, (b) the generation and spread of fire and smoke within the works are limited, (c) the spread of the fire to neighbouring construction works is limited, 402

(ca) occupants can leave the works or be rescued by other means, (d) the safety of rescue teams is taken into consideration. 403

402

WP agreed to introduce this point which had been overlooked in the Cion proposal.

DELETED : Add "without any damage".

403

DELETED : Add (e): "the possibility of safe evacuation of persons is taken into

consideration." DELETED : Add "evacuation and rescue of humans and animals in buildings in case of fire."

404

3.

H YGIENE , HEALTH AND THE ENVIRONMENT The construction works must be designed and built in such a way that they will not be a threat

neither to the hygiene nor health of the occupants and neighbours, nor exert a exceedingly high

405

impact over their entire life cycle to the environmental quality nor to the climate, during their construction, use and demolition, in particular as a result of any of the following:

(a) the giving-off of toxic gas; 406

(b) the emissions of dangerous substances , volatile organic compounds (VOC), greenhouse gases or dangerous particles into indoor or out door air;

407 408

404

DELETED : Add "safety and the environment". DELETED : Clarify in the structure that

No. 3 and 7 concern primarily the construction products while the other requirements concern the works. Clarify the "Life cycle"-concept of the product in No.3. DELETED : Concept of works related requirements (especially no.3 and no.7) needs some reflection, as the Regulation as such is on products and not on works. It should be clarified, that BWR 3 and BWR 7 also concern construction products (implicitly deriving from the life cycle concept) while the other BWRs only concern works. DELETED : For BWR 3 and BWR 7 clarification is needed with regard to the assessment procedures to identify the characteristics of products.

405

DELETED : Reword to: "...nor health or safety of construction workers, occupants and

neighbours, nor have an inacceptable impact..." DELETED : "unacceptable impact" is better wording than "exceedingly high".

406

DELETED : The term ,,substance" should be defined. The definitions according to Article 3

of REACH and/or Article 2 Directive 67/548/EEC should be taken on board. DELETED : Modify into substances into indoor air or dangerous particles or greenhouse gases to outdoor air."

407

DELETED : Replace "dangerous" by "ionising".

408

DELETED : Add a new point (ca): "the release of substances into water for human

consumption in concentrations higher than is necessary for the purpose of the products use or in concentrations that, either directly or indirectly, reduce the protection of human health or change the organoleptic properties of the drinking water in a way that it becomes unacceptable to consumers" and delete "drinking water" in (d) consequently.

409

(d) the release of dangerous substances into drinking water , ground water, marine waters or soil;

(e) faulty discharge of waste water, emission of flue gases or faulty disposal of solid or liquid wastes;

(f) the presence of dampness in parts of the works or on surfaces within the works. 410

411

4.

S AFETY IN USE The construction works must be designed and built in such a way that they do not present

unacceptable risks of accidents in service or in operation such as slipping, falling, collision, burns,

412

electrocution, and injury from explosion.

5.

P ROTECTION AGAINST NOISE The construction works must be designed and built in such a way that noise perceived by the

occupants or people nearby is kept down to a level that will not threaten their health and will allow

413

them to sleep, rest and work in satisfactory conditions. 414

6.

E NERGY ECONOMY AND HEAT RETENTION The construction works and their heating, cooling and ventilation installations must be designed and

built in such a way that the amount of energy required in use shall be low, when account is taken of

the climatic conditions of the location and the occupants.

409

DELETED : Against restriction on "dangerous" substances here.

410

DELETED : Add "(g): the microbial pollution on surfaces within the works."

411

DELETED : Scrutiny reservation of the wording of No.4.

412

DELETED : Add "of accidents or damage in service..." and "from explosion and

burglaries". Furthermore add the aspect of "strength of the product". DELETED : Add "crushing". DELETED : Add "or from fire."

413 DELETED : End the sentence as follows: "...health and by that the conditions to sleep, rest and work are assured."

414

DELETED : The interface with the extended scope of future Ecodesign-directive (COM

(2008)399; 16.7.2008) should be checked.

415

7.

S USTAINABLE USE OF NATURAL RESOURCES The construction works must be designed, built and demolished in such a way that the use of natural

416

resources is sustainable and ensure the following: 417 418

(a) recyclability of the construction works, their materials and parts after demolition; 419

(b) durability of the construction works; 420

works. 423

415

DELETED : Basic works requirements concerning the environment could be spelled out in

greater detail, including dangerous substances to be mentioned in the DoP and the life cycle criterion. Cion: This is more a task of national authorities than of European legal framework.

DELETED : Basic works requirement No. 7 might give rise to a special transition period.

Cion: No, transitional provisions of Art. 53-54 are sufficient. DELETED : Requirement No. 7 must stay workable in practice.

416

DELETED : Add "natural resources, including the use of water,..."

417

DELETED suggests: "recyclability and recovery..."

418

DELETED : Add "materials or construction products..."

419

DELETED : Add "...for the anticipated service life." DELETED : Replace "durability" by

"sustainability".

420

DELETED : Add "in construction products and in the construction works."

421 DELETED : Use wording: "...raw, secondary materials and renewable materials if

appropriate, in the construction works." DELETED : There is overlap with BWR for example with regard to "pollution or poisoning of water and soil". Clarify which product performances will fall under BWR 3 and which under BWR 7.

422

DELETED : Add BWR 8 "Accessibility" DELETED : Add BWR 9 "Security". DELETED

:

Add in the end: "Environmental Product Declarations should provide for the necessary data as to access the sustainable use of natural resources and the impact of the building to the environment".

423

DELETED : Suggests a new Annex Ia "List of all Products or Product Family as published

in Commission Decisions" - fixed fire-fighting systems - sanitary appliances - circulation fixtures - curtain walling..." etc.

ANNEX II

Procedure for adopting European Assessment Document and for issuing European Technical

424

Assessment

1.

Technical Assessment Body (TAB) shall carry out assessment and issue the European Technical Assessment (ETA) in the product area for which it has been designated.

425

The provisions of this Annex on manufacturers apply also to importers.

2.

The elaboration and the adoption of a European Assessment Document shall be carried out in accordance with points 2.1. to 2.9.

2.1. The TAB receiving a ETA request (hereinafter "responsible TAB") for a construction product shall inform the organisation of TABs referred to in Article 25(1) and the

Commission of the content of the request and of the reference to the Commission decision

for assessment and verification of constancy of performance, which the TAB intends to

apply for this product, or of the lack of such a Commission decision.

424

DELETED : Procedure of Annex II takes insufficiently into account the problem of

confidentiality. DELETED : Furthermore, it takes insufficiently into account that new tests will have to be developed for new types of products. The elaboration of EADs is also costintensive and has strong personnel requirements which are not easy to meet. DELETED : Role of Member States in this procedure is far too limited. DELETED : Annex II procedure is too burdensome, especially for niche products. Clarify why EADs are no longer based on mandates. Enlarge role of Standing Committee on Construction. Establish a working group whose members determine together for every EAD which regulations and product characteristics have to be assessed. DELETED : Delete Annex II, procedure can be set by comitology.

425

DELETED Replace "importers" by "authorised representatives" throughout this annex.

Otherwise separate importers might duplicate EADs for the same product. Cion: Practical implications are of minor importance as the manufacturer has to co-operate for the draft EAD, we probably have to mention "importers" for formal reasons (WTO background).

2.2. The responsible TAB shall, in cooperation with the manufacturer, obtain the relevant 426

information on the product and on its intended end use. The responsible TAB shall inform the manufacturer if the product is covered, fully or partially, by another harmonised

technical specification.

If the product is fully covered by a harmonised standard, the responsible TAB shall also inform the manufacturer that, in accordance with Article 21(1), a ETA cannot be

issued for it. If the product is fully covered by a EAD, the responsible TAB shall

inform the manufacturer that this EAD will be used as the basis for the ETA to be

issued.

If the product is not covered or not fully covered by any harmonised technical specification, the The responsible TAB shall then draft a first contract to be concluded

with the manufacturer, defining the terms for the elaboration of the work programme.

2.3. Within one month from the conclusion of the first contract, the manufacturer shall submit to the responsible TAB a technical file describing the product, its intended end use and

details of the factory production control he applies.

2.4. Within one month from the reception of the technical file, the responsible TAB shall prepare and send to the manufacturer the draft second contract and the draft work

programme, containing all detailed aspects and actions it will undertake to assess the

performance of the product for in relation to its the essential characteristics and of the

product in relation to its the intended end use.

The draft work programme shall include at least the following parts:

(a) part 1: the assessment programme indicating test methods, calculation methods, descriptive methods, parameters and all other means, including the assessment

criteria considered suitable for identifying the product, for assessing its the

performance in relation to for its essential characteristics in relation to the and its

intended end use, and the durability aspects for the relevant essential characteristics;

426

DELETED : Keep original wording "intended use" instead of "intended end use" throughout.

End use is unknown to manufacturer.

(b) part 2: the activities related to the initial inspection of the plant in which the product covered by the request is manufactured;

2.5. After the conclusion of the second contract, comprising the agreed work programme, between the responsible TAB and the manufacturer, the responsible TAB shall send Part 1

of the work programme, together with the part of the technical file related to the

description of the product and its intended end use, to all the other TABs designated for

the same construction products area, referred to in Table 1 of Annex IV. Those TABs shall

427

constitute a working group, which shall be co-ordinated by the responsible TAB. Within two weeks from the reception by all the TABs concerned of those documents from

the responsible TAB, the working group shall establish the draft EAD, containing the

assessment methods and criteria for of the performance of the product in relation to for

its the relevant essential characteristics and its intended end use, as well as, when

appropriate, minimum performance levels to be fulfilled. This draft EAD shall be

based on Part 1 of the work programme and on the pertinent and justified technical

contributions provided by its members. Where the performance of the product can

appropriately be assessed in relation to some of its relevant essential characteristics in

accordance with methods and criteria already established in other harmonised

technical specifications, these existing methods and criteria shall be incorporated as

428

parts of the draft EAD.

427 DELETED : Procedure would be easier without a working group and with electronic

diffusion only. DELETED : The working group should comprise only those TABs which have to contribute to the elaboration of an ETA. The ETA might be requested for some requirements only, which apply where the product is made available. With original wording of this paragraph, confidentiality problems might arise. (supported by DELETED ).

428 DELETED : Modalities for establishing the draft EAD are not realistic; especially the two

weeks period seems to be too short. DELETED : Time-frame of Annex II is unrealistic; the TABs will in the interest of competitive services avoid unnecessarily long processes anyway.

DELETED : Clarify whether the draft EAD will be similar to the current CUAP. If so, the

proposal might be acceptable. Cion: It is a new procedure with a formally joint document; the practical drafting will have the responsible TAB as a leading party anyway.

2.6. The draft EAD shall then be communicated by the responsible TAB, together with the relevant part of the technical file, containing the description of the product and its intended

end use, to all the other TABs.

Within two weeks, these other TABs shall communicate to the responsible TAB the

relevant information related to their national building regulations and other legal or

administrative provisions applicable to the product and to its intended end use, as

appropriate. The responsible TAB shall inform the members of the working group and the

manufacturer about the contents of these contributions.

2.7. The responsible TAB shall include these contributions, after consulting the working group, in the draft EAD, which it shall send to the organisation of TABs referred to in Article

25(1). After communicating the final draft EAD to the manufacturer, who shall have one

week for his reactions, the organisation of TABs shall adopt the EAD as a provisional

document. The organisation of TABs shall send a copy of the adopted provisional EAD to

the manufacturer and the Commission. If the Commission communicates, within fifteen

working days from reception, to the organisation of TABs its observations on the

provisional EAD, it shall be amended accordingly by the organisation of TABs. After this

period, the responsible TAB shall start the preparations for carrying out the assessment.

2.8. The responsible TAB shall carry out the assessment according to the provisions of the adopted provisional EAD and shall subsequently issue the corresponding ETA.

2.9. As soon as the first ETA has been issued on the basis of a given provisional EAD by the responsible TAB, this EAD shall be adjusted, if appropriate, by the organisation of TABs

on the basis of a proposal from the responsible TAB. The final EAD shall then be adopted

by the organisation of TABs and sent to the Commission. The Commission shall publish

the reference to the final EAD in the Series C of the Official Journal of the European

Union.

3.

When the reference to the final EAD has been published in the Official Journal of the European Union, the preparations for ETAs on the basis of any subsequent requests,

concerning construction products with similar essential characteristics in relation to their

intended use to the first request, shall be carried out according to this final EAD.

4.

A Commission representative may attend, as observer, to all the meetings of the working group referred to in point 2.5.
5.

If all the TABs and the manufacturer have not agreed upon the EAD, the organisation of TABs shall submit this matter to the Commission for appropriate resolution.

ANNEX III

Declaration of performance

No. ...................

429

1.

No ........................... (unique identification code of the product) 2. Name or identification mark and address of (authorised representative of the) 430

manufacturer:

.................................................................................................................................

431

................................................................................................................................. 3. This declaration of performance is issued under the sole responsibility of the 432

manufacturer :

.................................................................................................................................

4.

Identification of product (allowing traceability):

.................................................................................................................................

................................................................................................................................. 433 5. The performance of the product identified above is in conformity with the declared performances under point 7.

429

DELETED : Establish a common system of attribution of code numbers. DELETED :

Delete "No." because a code is not necessarily numerical only. DELETED : Specify details on how the manufacturer may generate the unique identification code.

430

DELETED : Add "importer" in accordance with Article 12.

431

DELETED : Add new 2a. "Name or identification mark and address of importer (in case of

imports from tertiary countries)".

432

DELETED : Add: "...manufacturer/importer (in case of imports from tertiary countries)"

433

DELETED : Clarify what kind of information for traceability purposes is implied here.

DELETED : Add new 4a: "Intended use of the product"; and new 4b.: "System of

assessment and verification of constancy of performance carried out". DELETED : Include "product-type", thus aligning to Art. 5.

434

6.

The .................................................. (name, number of the notified body, if relevant) 435

performed ................................................................ (description of intervention ) and issued ......................................... (the certificate of conformity of the product, the

436

certificate of conformity of the factory production control, the test reports - if relevant):

........................................................................................................................ ........................................................................................................................ 437

7.

Declaration of performance (list, levels or classes and reference to the corresponding harmonised technical specification/Specific Technical Documentation used for the

438

assessment of the performance for the declared essential characteristics) 440

Name of the declared Level or class of Reference of the 439

essential characteristic performance for the harmonised technical declared essential specification / Specific characteristic Technical 441

Documentation

Signed for and on behalf of: ...............................

............................................ ...............................................

(place and date of issue) (name, function)(signature) 442

434

DELETED : Add "name, function according to Annex V.2 and number..."

435

DELETED : Add: "intervention and applied system according to Annex V.1)"

436

DELETED : Use wording: "test/calculation reports..."

437

DELETED : Use wording: "values, levels or classes".

438

DELETED : Add "and intended use".

439

DELETED : Add "in accordance with hEN/EAD."

440

DELETED : Use wording: "Value, level or class".

441

DELETED : Use wording: "Reference No. and date of issue of the harmonised standard /

European technical assessment/Specific Technical Documentation" in order to be consistent with Article 21.

442

DELETED : Add in the form everything which is also suggested for Article 5.

ANNEX IV

Product areas and requirements for Technical Assessment Bodies

443444

Table 1 - Product areas

Product Area Families of construction products

CIVIL ENGINEERING Geotextiles and related products - Circulation fixtures - Floorings, paving and road finishes - Aggregates - Road construction products - Pipes, tanks and ancillaries not in contact with water intended for human consumption - Floor beds including suspended ground floors, roads and other trafficked areas - Ultra thin layer asphalt concrete - Waste water engineering products - Falling rock protection kits - Liquid applied bridge-deck waterproofing kits - Expansion joints for road bridges PREFABRICATED TOTAL/PARTIAL BUILDING UNITS Timber frame and log prefabricated building kits - Cold storage building kits and cold storage building envelope kits - Prefabricated building units - Concrete frame building kits - Metal frame building kits

443

DELETED : In order to make the whole enumeration more flexible, call the table 1 "Examples of product areas". DELETED : Make a unified

list, families and sub-families in the EC mandates should be complete and all construction products should be bound by them. DELETED : Columns 2 and 3 are incoherent, families of construction products are incomplete, also in comparison to mandates given to standardisation bodies.

444

DELETED : Annex IV is too restrictive - use product mandate families and sub-families. DELETED : Delete Table 1, product areas can be set

by Member States.

7685/09

ANNEX IV DG C I A

LOAD BEARING MATERIALS AND COMPONENTS Structural timber products and ancillaries - Cement, building limes and other hydraulic binders - Reinforcing and pre-stressing steel for concrete - Structural metallic products and ancillaries - Products related to concrete, mortar and grout - Structural bearings - Precast concrete products - Prefabricated stairs kits - Light composite wood-based beams and columns - Post tensioning kits for the prestressing of structures - Anchor bolts

ROOFING AND BUILDING ENVELOPE Curtain walling kits - Roof coverings, Roof lights, roof windows and ancillary products - Flat glass, profiled glass and glass block products - External and internal doors and windows, roof openings and roof lights - Liquid applied roof waterproofing kits - Kits for exterior wall claddings - Structural sealant glazing systems - Kits of mechanically fastened flexible roof waterproofing membranes - Self supporting translucent roof kits - Prefabricated wood-based load-bearing stressed skin panels and self-supporting composite lightweight panels INTERNAL/EXTERNAL BUILDING COMPONENTS/KITS Sanitary appliances - Wood-based panels - Masonry and related products - Internal and external wall and ceiling finishes 445

-

Gypsum products - Internal partition kits -

Watertight covering kits for wet room floors and walls - Non-load bearing permanent shuttering kits based on hollow blocks or panels of insulating materials and/or concrete

HEATING/VENTILATION/INSULATION Chimneys, Flues and specific products - Space heating appliances - Thermal insulating products - External thermal insulation composite kits - Inverted roof insulation kits Vestures

445

DELETED : Add here "flooring finishes".

7685/09

ANNEX IV DG C I A

FIXATIONS SEALINGS/ADHESIVES Construction adhesives - Pins for structural joints / Connectors - Three dimensional nailing plates - Anchors bolts / Screws - Wall plates made of stainless steel. - Cavity trays - Fastener for external wall claddings and flat or pitched roofs - Connector for sandwich elements of concrete - Gas and watertight seals for pipes in wall and floor penetrations - Sealing kits, profiles and strips - Joints sealing compounds - Elastic suspended fixings - Tension Rods - Point fastener - Surface repellents and coating treatments - Levelling fasteners for roofs, walls and interior applications - Waterproofing products / treatments FIRE PROTECTION AND RELATED PRODUCTS Fire alarm, fire detection, fixed fire fighting, fire and smoke control and explosion suppression products - Fire stopping, fire sealing and fire protective products.

ELECTRIC INSTALLATION Any construction product related to electric installation. 446

GAS INSTALLATION Any construction product related to gas installation. WATER SUPPLY AND SEWAGE Kit consisting of a trap with partially mechanical closure, mounted in a non-trapped

gully - Kit for manhole top consisting of Cover and additional rings made of plastic for different purposes - Piping kits for cold and hot water, including those intended for human consumption - Piping systems for drainage and sewerage with or without pressure - Flexible coupling for gravity and pressure sewerage and drainage pipe - Composition toilet

446

DELETED : Add more details for Areas I and J, similar to the other areas.

7685/09

ANNEX IV DG C I A

Table 2 - Requirements for technical assessment bodies

Competence Description of competence Requirement

1 Analysing risks Identify the possible risks and benefits for the use of innovative construction products in the absence of established/consolidated technical information regarding their performance when installed in construction works. A TAB shall be independent from the stakeholders and from any particular interests. In addition, a TAB shall have staff with: (a) objectivity and sound technical judgement; (b) detailed knowledge of the regulatory provisions and other requirements in force in the Member States, concerning product areas for which it is to be designated; (c) general understanding of construction practice 2 Setting technical criteria Transform the outcome of the risk analysis into technical criteria for evaluating behaviour and performance of the construction products regarding the fulfilment of applicable national requirements; the technical information needed by those participating in the building process as potential users of the construction products (manufacturers, designers, contractors, installers). technical knowledge, concerning product areas for which it is to be designated; (d) detailed knowledge of specific risks involved and the technical aspects of the construction process; (e) detailed knowledge of the existing harmonised standards and test methods within the product areas for which it is to be designated; (f) appropriate linguistic skills.

447

DELETED : These requirements should not be the subject of peer reviews, at the margins they could be checked by an independent expert group

being not an OTAB member.

448

DELETED L: "General understanding" is not quantifiable.

7685/09

ANNEX IV DG C I A

3 Setting assessment methods Design and validate appropriate methods (tests or calculations) to assess performance for essential characteristics of construction products, taking into account the current state of the art.

4 Determining the specific factory production control Understand and evaluate the manufacturing process of the specific product in order to identify appropriate measures ensuring product constancy through the given manufacturing process. A TAB shall have staff with appropriate knowledge of the relationship between the manufacturing processes and product characteristics related to factory production control.

5 Assessing the product Assess the performance for essential characteristics of construction products on the basis of harmonised methods against harmonised criteria. In addition to the requirements listed in points 1, 2 and 3, a TAB shall have access to the necessary means and equipment for the assessment of the performance for essential characteristics of construction products within the product areas for which it is to be designated.

6 General management Ensure consistency, reliability, objectivity and A TAB shall have: (a) a proven record of respect of good administrative behaviour; (b) a policy and the supporting procedures to ensure confidentiality of sensitive information within the TAB and all its partners; (c) a document control system to ensure registration, traceability, maintenance and archiving of all relevant documents; (d) a mechanism for internal audit and management review to ensure the regular monitoring of the compliance with appropriate management methods; (e) a procedure to deal objectively with appeals and complaints. traceability through the constant application of appropriate management methods.

449

DELETED : Add similar requirement as for notified bodies in Art. 33 (8): "The remuneration of the TAB personnel shall not depend on the

number of the assessments carried out or on the results of such assessments."

7685/09

ANNEX IV DG C I A

ANNEX V

Assessment and verification of constancy of performance

1.

SYSTEMS OF ASSESSMENT AND VERIFICATION OF CONSTANCY OF 450

PERFORMANCE 451

1.1. System 1 - Declaration of the performance for the essential characteristics of the product by the manufacturer on the basis of following items:

(a) the manufacturer shall carry out: (i) factory production control (FPC);

(ii) further testing of samples taken at the factory according to the prescribed test

plan;

452 453

(b) the notified body shall issue the certificate of conformity of the product on the basis of:

454

(i) determination of the product-type on the basis of type testing (including the sampling), type calculation, tabulated values or descriptive documentation of

the product;

(ii) initial inspection of the manufacturing plant and of FPC;

(iii) continuous surveillance, assessment and evaluation of FPC;

455

(iv) audit-testing of samples taken at the factory.

450

DELETED : Clarify the precedence order if two or more systems of assessment and

verification could apply.

451

DELETED : Renumber the systems in order not to confuse it with existing systems under the

Directive. DELETED : Maintain the existing numbering system.

452

DELETED : Use wording "notified certification body".

453

DELETED /Cion: At several places in Annex V "conformity" should be replaced by

"performance" or "constancy of performance" in order to align to the pertinent provision of Article 19.

454

DELETED : Should read "product type performance" here and in corresponding provisions

of 1.2, 1.3.,1.4, 1.5.

455

DELETED : Replace "taken at the factory" by "taken before placing the product on the

Community market". DELETED : Combine and merge system 1 and 2 as being nearly

1.2. System 2 - Declaration of the performance for the essential characteristics of the product by the manufacturer on the basis of following items:

(a) the manufacturer shall carry out: (i) factory production control;

(ii) further testing of samples taken at the factory by the manufacturer according to

the prescribed test plan;

456

(b) the notified body shall issue the certificate of conformity of the product on the basis of:

(i) determination of the product type on the basis of type testing (including the sampling), type calculation, tabulated values or descriptive documentation of

the product;

(ii) initial inspection of the manufacturing plant and of FPC;

(iii) continuous surveillance, assessment and evaluation of FPC.

1.3. System 3 - Declaration of the performance for the essential characteristics of the product by the manufacturer on the basis of following items:

(a) the manufacturer shall carry out:

(i) determination of the product-type on the basis of type testing (including the sampling), type calculation, tabulated values or descriptive documentation of

the product;

(ii) factory production control;

(iii) testing of samples taken at the factory according to the prescribed test plan;

identical now and leave "audit testing of samples" only as an option.

456

DELETED : Use wording "notified certification body".

457

(b) the notified body shall issue the certificate of conformity of the FPC on the basis of:

(i) initial inspection of the manufacturing plant and of FPC; (ii) continuous surveillance, assessment and evaluation of FPC.

1.4. System 4 - Declaration of the performance for the essential characteristics of the product by the manufacturer on the basis of following items:

(a) the manufacturer shall carry out factory production control;

(b) the notified body shall carry out determination of the product-type on the basis of 458

type testing (based on the sampling carried out by the manufacturer), type calculation, tabulated values or descriptive documentation of the product;

1.5. System 5 - Declaration of the performance for the essential characteristics of the product by the manufacturer on the basis of following items:

(a) the manufacturer shall carry out:

(i) determination of the product-type on the basis of type testing, type calculation, tabulated values or descriptive documentation of the product;

(ii) factory production control;

(b) no tasks for the notified body.

457 DELETED : Use wording "notified certification body". 458

DELETED : Use following wording: "The notified testing laboratory shall carry out

determination of the product-type on the basis of type testing (including sampling), type calculation..."

2.

BODIES INVOLVED IN THE ASSESSMENT AND VERIFICATION OF CONSTANCY OF PERFORMANCE With respect to the function of the notified bodies involved in the assessment and verification of

constancy of performance of construction product, distinction shall be made between:

(1) certification body: a notified body, governmental or non governmental, possessing the necessary competence and responsibility to carry out a certification according to given

rules of procedure and management;

(2) inspection body: a notified body having the organization, staffing, competence and integrity to perform according to specified criteria the following functions: assessing,

recommending for acceptance and subsequent audit of quality control operations of

manufacturers, and selection and evaluation of construction products in the plant,

according to specific criteria;

(3) testing laboratory: a notified laboratory which measures, examines, tests, calibrates or 459

otherwise determines the characteristics or performance of materials or construction products.

460

459

DELETED : Delete the word "calibrates". DELETED : Use wording "calibrates,

calculates..."

460

DELETED : Add new point (4) calculation body. DELETED : Add the following provision:

"If the notified certification body is not notified for the function of an inspection body,

-

the initial inspection of the manufacturing plant and of FPC or - the continuous surveillance, assessment and evaluation of FPC

has to be performed (on behalf of the notified certification body) by a notified inspection body If the notified certification body is not notified for the function of a testing laboratory,

-

the determination of the product-type on the basis of type testing (including the sampling), type calculation, tabulated values or descriptive documentation of the product or -the audit-testing of samples taken at the factory

has to be performed (on behalf of the notified certification body) by a notified testing laboratory."

461

ANNEX VI (new)

1.

Floor beds (including suspended ground floors), roads and other trafficked areas 2. Foundations and retaining walls 3. Pile foundations
4.

External walls (including cladding), internal walls and partitions 05. Floors, galleries and ceilings
06.

Prefabricated systems for floors and galleries, stairs, ramps, raised access floors, balustrades and hand rails (including external works)
07.

Roofs
08.

Frame (including chimneys and shafts)
09.

External and internal doors and windows, roof openings and roof lights (including fire doors and shutters)
10.

Suspended ceilings
11.

External finishes of walls
12.

Internal finishes of walls and partitions 13. Floor and stair finishes 14. Ceiling finishes 15. Roof finishes 16. Waterheaters
17.

Disposal of solid waste

461

See footnotes on Definition (17a) "intended end use". DELETED : Structure of this Annex is

not ok. DELETED : Delete Annex VI (new): Distinction between "intended use" and "intended end use" is misleading.

18.

Drainage (including highways) and disposal of other liquids and gaseous waste 19. Supply of hot and cold water
20.

Supply of fuels, oil and other liquids
21.

Fire suppression and extinguishing systems
22.

Supply of gases, pressure and vacuum systems 23. Space heating, cooling and air-conditioning 24. Supply of electricity 25. Lightning
26.

Communications
27.

Transport-lifts, hoists, escalators, conveyors 28. Fire detection and alarm 29. Circulation fixtures
30.

Sanitary and cleaning fixtures 31. Storage fixtures 462

______________________

462

DELETED : Suggest a new annex xxx (see wording Article 5) concerning dangerous

substances. See also suggestion in MD-15.

2. Originele weergave

Open document als PDF

3. Meer informatie

verder

Proposal for a Regulation of the European Parliament and of the Council laying down harmonised conditions for the marketing of the construction products - Information from the Presidency - Hoofdinhoud

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Delen

1.

Tekst

2.

Originele weergave

3.

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publicatiedatum	23-03-2009
kenmerk	7685/09