Legal analysis of possible national provisions

In document Hazardous chemicals in construction products (Page 73-75)

7.2 Analysis

7.2.3 Legal analysis of possible national provisions

Summary

· The Construction Products Regulation allows national provisions regarding construction products.

· The investigation highlights, in the case of emissions of hazardous substances from construction products, that Member States have certain scope for adopting national provisions.

· However, the following circumstances must be taken into account when national legislation is developed :

o National labelling requirements should be avoided. o No deviations are allowed from harmonised standards.

o The definitions specified in the Construction Products Regulation must be used.

In the Swedish Chemicals Agency’s view, it is obvious that the Construction Products

Regulation allows national regulations regarding construction products. The preambels to the regulation indicate that Member States are entitled to establish certain national requirements for construction products even though they act as trade barriers. However, the regulation provides very limited guidance about the extent to which restrictions are permitted and the form they should take. The results which have emerged while the report was being written will lead to subsequent considerations.

Adapting to EU regulations

Although the Construction Products Regulation provides scope for national regulations, other regulations in this field must also be taken into account. In the current area, it is mainly the REACH regulation which is being relevant, along with its restrictions on chemicals. If a substance has been regulated at EU level, this regulation has what is known as a harmonising effect. There are different degrees of harmonisation. Areas which have been exhaustive regulated are considered to be fully harmonised. This means that national

regulations cannot apply within the harmonised area131. If there is no EU regulation, the area is described as non-harmonised. In this case, national restrictions may be permitted, but they must comply with the Treaty on the Functioning of the European Union (TFEU). In this regard, primarily Articles 34-36 TFEU are of relevance. The actions must be justified based on certain specified reasons, while also being proportionate and non-discriminatory.

131 The question as to whether a restriction on a certain use of a substance in the REACH regulation totally excludes national restrictions being applied to the substance is a subject for discussion. The Swedish Chemicals Agency believes that this is not the case and has explained this position in Report 4/15, “Phthalates which are toxic for reproduction and endocrine-disrupting – proposals for a phase-out in Sweden”.

Therefore, a national regulation cannot be created for using a particular substance if there is an equivalent regulation in force at EU level, mainly under the REACH regulation. The conditions should also be the same for substances in construction products.

The question then will be what scope is available to regulate substances in construction products nationally when there is no relevant EU regulation. This is a controversial issue in the chemicals sector where the Commission claims that, first and foremost, EU regulations must be applied. However, several Member States have a different interpretation of this, whereby they are free to adopt national regulations, provided that these regulations comply with the Treaty.

This investigation highlights in particular, in the case of emissions of hazardous substances from construction products, that Member States have scope for adopting national regulations. The CPR does not contain substansive requirements for construction products, but a system for harmonising the procedures for assessing and describing the products’ characteristics. The Construction Products Regulation explicitly states that national requirements are permitted. In the Swedish Chemicals Agency’s view, this indicates that the legislation’s intention is for chemicals in construction products to be primarily regulated at a national level.

Against the background of the European provisions, especially Belgium’s legislation on construction products, which the Commission has approved, it can be assumed that the Commission’s view on the scope for national regulations regarding construction products is somewhat greater than normal in the case of assessments of national restrictions. One

circumstance which indicates this view is the Commission’s interpretation132 that it is possible to restrict nationally the use of CE-marked construction products as well, i.e. products not covered by a harmonised standard. It is not usually permitted under EU law to impede the movement of CE-marked goods.

However, the following circumstances must be taken into account when national legislation is developed. :

1. National labelling requirements should be avoided

The Construction Products Regulation is based on the principle that manufacturers and importers must produce declarations of performance which, in turn, are based on harmonised standards. The fact that a product has a correctly produced declaration of performance is certified by CE marking. As there is a harmonised labelling system in place, it is difficult for statutory requirements for labelling construction products which are covered by harmonised standards to be combined with the Construction Products Regulation. This is evident, for instance, in the Commission’s statement made in the case against Germany, which was mentioned earlier on (see section 7.2.1).

However, France’s labelling system has been approved. This labelling system, unlike Germany’s, is not combined with any approval requirement or other requirements of the products. Labelling itself does not exclude any products from the market. In addition, labelling is not a matter covered by a harmonised standard. Therefore, such a solution is possible, but its starting point should be to avoid national labelling requirements. This also means that it is difficult to combine voluntary systems with a relevant labelling system with EU regulations.

132 According to the Commission’s FAQ.

2. No deviations are allowed from harmonised standards

CE marking and standards are used in the Construction Products Regulation in a way which is different to other EU legislation. CE marking is a concept associated with what is known as the New approach133 and usually certifies that a product complies with substantive

requirements contained in an EU legal act. In this case, a harmonised standard is often produced to show how requirements can be fulfilled, but it is not mandatory for

manufacturers to use the standard. There are options for indicating that requirements are met in a different way.

Standardisation is used in the Construction Products Regulation in a slightly different way. The standards form the basis for the declarations of performance which indicate the products’ characteristics and are based on national provisions, as well as others. In this case, the

standard is mandatory. When the standard has been approved, any new national requirements in the area which the standard applies to must therefore be adapted to the standard in terms of terminology etc. For example, it may involve test methods specified in the standard being able to be applied to the new national requirements. The standards for construction products have therefore a more normative function than what is usually the case and are the harmonising element in the Construction Products Regulation.

3. The definitions specified in the Construction Products Regulation must be used

As the regulation’s text does not specify exactly what scope is available for national regulations, it is vital that the regulation’s definitions are applied precisely. For instance, a construction product is defined in the regulation as follows: “any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof and the performance of which has an effect on the performance of the construction works with respect to the basic requirements for construction works”.

The definition contains important requirements which must be fulfilled so that the national regulation will keep within the scope of the regulation. Similarly, other terms used in national legislation must be worded according to the regulation’s system and its definitions must be used.

In document Hazardous chemicals in construction products (Page 73-75)