6.1.1 Construction Products Regulation (EU) No 305/2011
Since 1 July 2013, the Construction Products Regulation (EU) No 305/2011 has superseded the previous Construction Products Directive. The aim of the Construction Products
Regulation is to promote free trade in construction products by removing technical barriers to
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trade between Member States. In a nutshell, the Construction Products Regulation stipulates that construction products sold on the internal market should be assessed and described in the same way, regardless of where they are manufactured, and that information about the
construction products’ essential characteristics shall be supplied with the product the whole way from manufacturer to user.
A construction product covered by a harmonised standard must have a declaration of performance and be CE-marked when sold. The declaration of performance describes the product’s essential characteristics, while the CE marking is the manufacturer’s certification that the product’s actual performance matches the declared performance. A construction product cannot be CE-marked directly under the regulation, but a harmonised standard is used as a basis for assessing the product.
Chemical information, as stipulated in Article 31 or 33 (depending on the product type) of the REACH Regulation, must be supplied, according to the Construction Products Regulation, along with the declaration of performance.
Harmonised standards within the construction product sector are mandatory
The Construction Products Regulation requires construction products to have a declaration of performance and CE marking when they are sold, if they are covered by a harmonised
standard (or a European Assessment Document (EAD)). The construction product’s essential characteristics may not be assessed and described in different ways, which means that the use of a harmonised construction product standard is mandatory and not voluntary as in other product areas.
A harmonised standard is being drawn up, based on a mandate from the European
Commission. Generally speaking, the Commission has found out which national regulations apply to the relevant product and which essential characteristics the product’s users need to be familiar with to be able to use it. Then, the Commission has assigned the standardisation body CEN a mandate which involves devising methods for determining these product
characteristics. When CEN has produced and published the standard, it will be sent to the European Commission, which will announce the standard in the Official Journal of the European Union (OJ). Only when these steps are completed will the standard be given the status of “harmonised”, allowing it to be used as a basis for a declaration of performance and CE marking.
In the case of some product characteristics, the Commission has decided to go for horizontal standardisation so that the same method can be used to determine the same essential
characteristics for practically every type of construction product. This is the case with
standards for determining emissions of hazardous substances from construction products. The European Commission set up an expert group to gather information about national regulations as a basis for commissioning CEN with the task of devising appropriate methods for
determining, for instance, emissions of hazardous substances in indoor air. The forthcoming standard prEN 16516 ha went through the CEN enquiry during 2015 and is expected to be published by CEN in 2016. If the Commission assesses that the standard meets the
requirements for being a harmonised standard, it will be announced in the OJ. It will then become part of the mandatory system.
It should be noted that there is a concession for companies included in the system in that they can declare NPD97. This means that if the country where the product is intended to be sold
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does not have any national regulations stipulating the need to know about a certain essential characteristic, the product manufacturer can then choose to declare NPD for this characteristic instead of testing the product and reporting the test results.
National construction legislation and suitability of construction products
The Construction Products Regulation only stipulates a requirement with regard to how the products should be assessed and described when sold. It does not involve any approval of products and does not impose any requirements on the completed building structure. The latter is regulated by each Member State’s national legislation.
Construction products may be used in a construction works only if they are suitable for the intended use (Chapter 8, Section 19 of Swedish Planning and Building Act (PBL)), which means that they need to have the characteristics which will help the construction works meet the requirements in terms of technical characteristics (PBL Chapter 8, Section 4). These technical characteristic requirements are specified by the Swedish Planning and Building Ordinance (PBF), as well as in the National Board of Housing, Building and Planning’s regulations, which specify that materials and construction products used in a building should not in themselves, or through their treatment, have a negative impact on the indoor
environment. The client is responsible for selecting appropriate products for his or her project. The rules set out functional requirements for the completed structure rather than at product level.
In the case of construction products subject to requirements for a declaration of performance and CE marking under the Construction Products Regulation, the information contained in the declaration of performance shall be considered to provide a sufficient basis for determining the product’s suitability. This is indicated by the judgment issued by the Court of Justice of the European Union (CJEU) in case C-100/13 where the European Commission questioned Germany’s requirement for a declaration of more product characteristics than those that can be described according to a harmonised standard.
It will be possible to include the characteristic “emission of hazardous substances from
construction products” in declarations of performance for relevant products when the standard for assessing this characteristic is ready.
6.1.2 REACH
REACH98 is an EU regulation regarding chemicals, which can be used, for instance, to ban or restrict the use of chemical products or articles in different areas of application. The
regulation is also used to generate basic information about which chemicals have hazardous properties and to assess the risks associated with them.
REACH stands for Registration, Evaluation, Authorisation and restriction of Chemicals and covers a number of areas as referred to in the abbreviation’s meaning: registering and evaluating chemicals, authorising Substances of Very High Concern (SVHC) and imposing restrictions or bans regarding certain substances.
REACH is supplemented by the CLP Regulation99, which contains rules for classifying, labelling and packaging chemical substances and mixtures. The hazard classification of
98 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning Registration, Evaluation, Authorisation and Restriction of Chemicals.
99 Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures.
chemical substances and mixtures provides a foundation for EU chemicals legislation. Some substances have an EU-harmonised classification, in which case they feature in Annex VI of CLP. If this harmonised classification is available, it must be used. In addition, anyone releasing the product on the market must classify it themselves based on given criteria in relevant regulations, i.e. CLP or older regulations being applied during a transition phase. If a substance is classified as being carcinogenic, mutagenic or toxic for reproduction, CMR, in Category 1A or 1B, it will not usually be allowed in chemical substances or mixtures supplied to consumers, in accordance with the restriction regulations in Annex XVII of REACH. It should be noted in particular that the regulation only applies to chemical substances or mixtures.
Authorisation and restrictions
According to Article 57, certain substances may be identified as Substances of Very High Concern (SVHC). These substances must be classified as follows: in CMR Category 1A and 1B, as persistent, bioaccumulative and toxic (PBT) or as very persistent and very
bioaccumulative (vPvB). Substances which fail to meet these criteria, but for which scientific evidence is still available about the likely impact on the environment or health and which cause a similar degree of concern can be identified as SVHCs. One example specified in the text of the law is substances with endocrine-disrupting characteristics. SVHCs are identified by deciding to record them in a published list of candidates for authorisation (the candidate list). ECHA uses the candidate list to prioritise substances which will be subject to
authorisation. These substances are listed in Annex XIV of REACH. The annex specifies a date for each substance by when the authorisation process must be completed, after which the substance is not allowed to be used in the EU without authorisation. The final decision on listing substances in the annex is made by the Commission based on a vote in a regulatory committee.
If an article contains a substance on the candidate list at a level of over 0.1 per cent in weight, according to Article 33, this information must be passed on to commercial users and to consumers. This means that the candidate list has several functions: it lists substances which may be subject to authorisation and it provides the basis for an information system for SVHCs in articles. The candidate list is evolving all the time, which means that new substances are gradually being added to it.
If an unacceptable risk is present, it is possible, under the REACH Regulation, to ban or restrict the manufacture, placing on the market and use of a substance as such in a preparation or article. Such restrictions are included in Annex XVII. The restrictions can be applied to all uses of a substance, including imported articles containing the substance. As a result, the scope of application for the rules on restrictions is broader than for granting authorisation. This activity is coordinated by ECHA, but it requires the authorities in the individual Member States to carry out investigations and draft a proposal which can be revised on a joint basis. Extensive material is required to include substances in Annex XVII. Information on use, exposure and alternative substances must be compiled for the whole EU. The use which the restriction applies to must entail an unacceptable risk to health or the environment. In addition, reasons must be given as to why action is required at Community level and a socio- economic assessment of the proposed restriction must be carried out.