EN    EN  
 EUROPEAN  
COMMISSION 
Brussels, XXX   
[…](2014) XXX  draft 
  
COMMISSION DELEGATED REGULATION (EU) No …/.. 
of XXX  
amending Annex V to Regula tion (EU) No 305/2011 as re gards the assessment and 
verification of constancy of perfor mance of construction products  
 EN 1   EN EXPLANATORY MEMORANDUM  
1. CONTEXT  OF THE  DELEGATED  ACT 
Pursuant to Article 60(e) of Regulation (EU) No 305/2011 of the European Parliament and of 
the Council of 9 March 2011 laying down harmonized conditions for the marketing of construction products and repea ling Council Directive 89/106/EEC
1, the Commission has 
been delegated the task of adapting Annex V to Regulation (EU) No 305/2011. 
By means of using this power, the Commi ssion therein proposes to adapt Annex V to 
Regulation (EU) No 305/2011 in or der to fulfil three main objectiv es: first, to prescribe the 
particular treatment of products for which Eur opean Technical Assessments (ETA) are issued; 
second, to simplify and bring clar ity to the distribution and desc ription of tasks contained in 
Annex V, notably by means of in creased consistency with the concepts used and approaches 
defined in Regulation (EU) No  305/2011; and third, to better re flect the curren t application 
practices of the systems of assessment and veri fication of constancy of performance (AVCP), 
taking into account the first practical experi ences gathered and reported by notified bodies 
designated for Regulation (EU) No 305/2011, Member States and industry. 
The draft Regulation does not intend to alte r the distribution of tasks established by 
Regulation (EU) No 305/2011 for th e AVCP of construction products. 
The adoption of the draft Regulation would fac ilitate the actions of manufacturers and the 
functioning of notified bodies authorized to carry  out third-party tasks in the process of AVCP 
of construction products. This will be the outcome  of clarifying their respective roles and of 
explicitly introducing the simp lified process appli cable to products for which ETAs are 
issued. All this should both reduce admini strative burden and increase clarity on the 
interpretation of Regulation (EU) No 305/2011. 
For these reasons, this re vision should also enha nce the consolidation of the internal market 
for construction products and thus have a favourable impact on the competitiveness of the European construction sector as a whole. 
2. CONSULTATIONS
 PRIOR  TO THE  ADOPTION  OF THE  ACT 
The aspects covered by the draft Regulation we re submitted for public consultation by means 
of three meetings held for this purpose on 15 July and 9 September 2013 and on 28 January 2014, as well as by a written consultation betw een 24 October and 4 November 2013. These 
consultations were preceded by informal c ontacts with representatives of different 
stakeholders, notably Member States, the European Parliament, notified bodies, the 
organisation of Technical Assessment Bodies (TABs) EOTA and industry. For the meetings 
and the written consultation, all Me mber States were invited to no minate experts. In addition 
to these experts, also representatives of th e European Parliament participated in the 
consultations, alongside widespread representati on of diverse other concerned stakeholders. 
The documents relevant to the meetings a nd the written consultation were transmitted 
simultaneously to the European Parliament a nd the Council, as foreseen in the Common 
Understanding on delegated acts. The observati ons presented during the meetings and the 
written consultation have been taken into account  when preparing the final draft version of 
this act. 
                                                
 
1 OJ L 88, 4.4.2011, p. 5. EN 2   EN 3. LEGAL  ELEMENTS  OF THE  DELEGATED  ACT 
Pursuant to Article 28 of Re gulation (EU) No 305/2011, the rules on AVCP of construction 
products in relation to their e ssential characte ristics have been cont ained in Annex V to 
Regulation (EU) No 305/2011. Following these rules,  the AVCP tasks shall be carried out in 
accordance with the systems set out in this Annex. 
As mentioned in Article 39 of Regulation (E U) No 305/2011, Member St ates shall notify the 
Commission and the other Member States of bodies authorised to carry out third-party tasks 
in the process of AVCP under Regulation (EU)  No 305/2011 (hereinafter referred to as 
‘notified bodies’). Articles 40 to 43 prescrib e the requirements and procedures for such 
notifications. 
In the initial Annex V, however, the role and the activities of TABs and their organisation 
(EOTA) had been disregarded. Although TABs ha ve not been given the status of notified 
bodies in Regulation (EU) No 305/2011, they ha ve been acknowledged as bodies carrying out 
assessments of performance of construction produc ts in case of issuing European Technical 
Assessments (ETAs). Since no justifications can be brought forward for subjecting the 
manufacturers to additional unnece ssary costs and burdens in this context, such assessments 
presented in ETAs should be used as the base for the subsequent tasks of verifications of 
constancy of this performance by notified bodi es and manufacturers. Indeed, the publication 
by the Commission of the final European Asse ssment Document mentioned in point 8 of 
Annex II to Regulation (EU) No 305/2011 woul d allow Member States to designate 
appropriate notified bodies and would permit the manufacturer to ensure fulfilment of the 
subsequent tasks of AVCP required under Articl e V before the product is placed on the 
market. The respective adaptati on of Annex V is due to avoi d the doubling of work already 
carried out. A clear statement of using the ETAs as  the base for the verifications of constancy 
of performance for these products is therefore to be added to Annex V. 
For the sake of simplification and clarity, th e rules in place for AVCP systems should be 
reconciled with the general prin ciples of Regulation (EU) No  305/2011. Notably, pursuant to 
this Regulation, it always remains an obligat ion for the manufacturer to determine the 
product-type, as defined in Articl e 2(9). The role of the manufact urer has been confirmed also 
in Article 36 of Regulation (EU) No 305/2011. Th is general principle of  Regulation (EU) No 
305/2011 should therefore be clearly ac knowledged also in Annex V.  
An introductory sentence is also proposed unde r Section 1 of Annex V, with a view to 
replacing the current introductions  included for every one of the five AVCP systems. In the 
same vein, the actors for every task are descri bed in a clearer manner,  in order to increase 
legal certainty. These clarifications don’t intend to shift the current repartition of 
responsibilities as set out in Regulation (EU) No 305/2011.   
Another general approach of Regulation (EU) No 305/2011 is to focus on the performance of 
construction products, which is first to be assessed and the constancy of which then 
subsequently verified in accordance with the AV CP systems. In the curr ent Annex V, this is 
already reflected in the name of the certificates to be issu ed under systems 1+ and 1, which 
are called certificates of constancy of performance of the products. 
In order to understand the proc ess at hand, one needs to distinguish betw een its phases: the 
starting point is constituted by the assessment of  the performance in relation to its essential 
characteristics, resulting in a set of performance levels or cl asses. After that , notified bodies 
are to verify in the following phase that this  performance remains constant, as indicated by 
Articles 52(3) to 52(5). While the name of the notified body involved in this certification of 
constancy of performance has to be kept intact , owing to references to it notably in Article EN 3   EN 36(2) of Regulation (EU) No 305/2011, the wording of Annex V is slightly  clarified in this 
respect, also to alleviate the problems caused by the rules in place and to assist in the 
appropriate application of Articles 52  and 53 of Regulation (EU) No 305/2011. 
Furthermore, in case of ETAs, notified bodies are in charge of other tasks than the assessment 
of performance, already carried out by TABs  while issuing ETAs, for the construction 
products involved. This additional statement, emphasising the differences between these two 
types of bodies and the requirements set out for them, has thus been deemed necessary to be 
included into the draft Regulation (new  point 6 of Section 1 of Annex V). 
The demands for simplification an d clarity have resulted also in less significant changes 
within Section 2 of Annex V, aimed at bringing the descriptions of the activities of different 
types of notified bodies and their names into coherence w ith factual practices currently 
followed. In particular, this concerns the work of laboratories, some of which could also be 
notified for performing calculations (instead of calibrations) to assess the performance of 
construction products, when such a method has been prescribed in harmonised technical 
specifications. On the other hand, the alternative of directly utilising laboratories in the 
context of systems 1+ and 1 has met w ith considerable opposition during the public 
consultations and has therefore been discar ded. The notified bodies currently involved in 
these systems could always turn to subcontrac ting some of their activities, as foreseen in 
Article 45 of Regulation (EU) No 305/2011. 
During the public consultations, st akeholders, especially notified  bodies, have expressed their 
concern about the lack of clarity remaining on the treatment of so-called cumulative AVCP 
systems, i.e. situations where more than one sy stem is to be applied to a given construction 
product, owing to distinctions made for its di fferent essential charac teristics. In these 
circumstances, the requirements for the use of  notified bodies should also be differentiated 
between the essential characteri stics in accordance with the va rious systems applicable to 
them. Since this principle, already in common  use, relates to the uniform application of 
Article 28 of Regulation (EU) No 305/2011, when  choosing the AVCP system or systems to 
be applied, as well as applying them, rather than the contents of these systems, as determined 
in Annex V, it was not considered appropria te to make any amendment to Annex V. 
Annex V is also to undergo certai n more minor adjustment, so as to adapt it to technical and 
practical needs and conditions. The term “f actory” has been replaced by “manufacturing 
plant” on certain occasions, so as to come to  better coherence with the general wording of 
Regulation (EU) No 305/2011. Since continuous  (with the connotation of constant) 
surveillance in fact is not possibl e and in practice is not carried out even today, re ference is to 
be made to the continuing nature of this activ ity of notified bodies. Th e processes of sampling 
and audit-testing are described in accord with  current reality. Finally, for acoustics, the 
essential characteristics in question are redefine d by replacing noise absorption in Section 3 of 
Annex V by acoustic performance. 
Finally, a transitional provision is proposed to allow manufacturers to continue using 
certificates and other documents which were issued by notified bodies  applying the initial 
Annex V to Regulati on (EU) No 305/2011. EN 4   EN  
COMMISSION DELEGATED REGU LATION (EU) No …/.. 
of XXX  
amending Annex V to Regulation (EU) No 305/2011 as regards the assessment and 
verification of constancy of perfor mance of construction products  
THE EUROPEAN COMMISSION, 
Having regard to the Treaty on the Functioning of the European Union, Having regard to Regulation (EU) No 305/2011 of the European Parliament and of the 
Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repeal ing Council Directive 89/106/EEC
2, and in particular Article 
60(e) thereof, 
Whereas: (1) Pursuant to Article 28 of Regulation (E U) No 305/2011, assessment and verification 
of constancy of performance of constructi on products in relation to their essential 
characteristics is to be carried out in acco rdance with the system s set out in Annex V 
to Regulation (EU) No 305/2011. 
(2) Annex V should be adapted in order to res pond to technological progress, to make 
provision for the specific case of products for which European Technical Assessments 
have been issued, as well as to enhance the clarity, accuracy and consistency to the descriptions and terms used therein, in lin e with practical experience gained in the 
course of the appli cation of Annex V. 
(3) This adaptation would facilitate the wo rk of manufacturers and notified bodies 
authorised to carry out thir d-party tasks in the process of assessment and verification 
of constancy of performance of constr uction products, reduce administrative burden 
and increase clarity on the in terpretation of Regulation (EU) No 305/2011, thus having 
a favourable impact on the competitiveness of  the construction sector as a whole. 
(4) Regulation (EU) No 305/2011 implies that  the manufacturer is responsible for 
determining the product-type for any product the manufacturer wishes to place on the 
market. In the same context, the underl ying logic of Regulat ion (EU) No 305/2011 
does not imply the existence of product cert ification, but notif ied bodies are only 
responsible for assessing the performance of construction products , the constancy of 
which is then to be certified. This repart ition of competences between manufacturer 
and notified bodies should be better reflecte d in Annex V, without  entailing a shift in 
the responsibilities of these actors. 
(5) Since constant surveillance of  factory production control by notified bodies in fact is 
not possible and is not carried out in practice, reference should rather be made to the 
continuing nature of the surveillance.  
                                                
 
2 OJ L 88, 4.4.2011, p. 5. EN 5   EN (6) For construction products not covered or not  fully covered by harmonised standards, 
European Technical Assessments (ETA) can  be issued by a Technical Assessment 
Body. Pursuant to Article 2(13) of Re gulation (EU) No 305/2011, such an ETA 
already contains an assessment of the pe rformance of the product in question in 
relation to its essential characteristics. Additional subsequent controls of the correctness of this assessment process w ould not bring about any added value, but 
only generate unnecessary costs for manufact urers. Enterprises have already made 
requests for ETAs and need legal certainty with  respect to the third-party tasks to be 
carried out in the process of  assessment and verification of constancy of performance 
of these construction products. 
(7) In order to better reflect the current practi ce the names of the types of notified bodies 
and the description of their resp ective tasks should be adjusted. 
(8) A technical adaptation is nece ssary concerning the term ‘noise absorption’ referred to 
in Section 3 of Annex V to Regulation (E U) No 305/2011 to achieve a more accurate 
description of the essential characteristics to be assessed and more consistency with 
terminology used in relevant harm onised technical specifications. 
(9) In order to ensure a smooth transition for manufacturers they shoul d have the right to 
continue using certificates and other docum ents which were issued by notified bodies 
in accordance with Annex V to Regulation (EU) No 305/2011 before the entry into force of this Regulation, 
HAS ADOPTED THIS REGULATION: 
Article 1 
Annex V to Regulation (EU) No 305/2011 is repl aced by the text in the Annex to this 
Regulation. 
Article 2 
Certificates and other documents issued by not ified bodies in accordance with Annex V to 
Regulation (EU) No 305/2011 before the entry into  force of this Regulation shall be deemed 
to comply with this Regulation. 
Article 3 
This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of  the European Union . 
This Regulation shall be binding in  its entirety and directly applicable in all Member States. 
Done at Brussels, 
 For the Commission 
 The President 
 José Manuel BARROSO