EN    EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, XXX   
[…](2017) XXX  draft  
  
COMMISSION DELEGATED DECISION (EU) …/…  
of XXX  
on the applicable system to assess and verify constancy of performance of anchor devices 
used for construction works and intended to prevent persons from falling from a height 
or to arrest falls from a height pursuant to Regulation (EU) No 305/2011 of the 
European Parliament and of the Council  
(Text with EEA relevance)    
EN 2   EN EXPLANATORY MEMORANDUM  
1. CONTEXT  OF THE  DELEGATED  ACT  
According to Article 28 of 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 repealing Council Directive 89/106/EEC1, assessment and 
verification of constancy of performanc e (AVCP) of construction products in relation to their 
essential characteristics is to be carried out in accordance with the systems set out in Annex V 
to Regulation (EU) No 305/2011.  
Pursuant to Articles 28(2) and 60(h) of Regulation (EU) No 305/2011, the  Commission is 
delegated the task of establishing the AVCP systems of construction products, relating to a 
given product, a given product family or a given essential characteristic, taking into account 
the considerations laid down in those provisions.  
For anchor devices used for construction  works and intended to prevent persons  from falling 
from a height or to arrest falls from a height, an appropriate decision for establishing the 
AVCP system does not yet exist.  
Pursuant to Article 28(2), the choice of th e AVCP system should aim at the least onerous 
system for the manufacturers, when account is taken of all the relevant considerations.  
In 2010, the Court of Justice of the European Union ruled2 on the question whether particular 
anchor devices were covered by Council Directive 89/686/EEC on personal protective 
equipment3 or Council Directive 89/106/EEC on construction products4. The Court found that 
classification as personal protective equipment presupposes that such a product is, or at least 
can be, worn o r held by its user for the entire period of his exposure to risk and that, therefore, 
it must be a movable product. Anchor devices secured, when in use, to a construction work 
are therefore not intended to be worn or held by their user within the meaning o f Council 
Directive 89/686/EEC5. On the other hand, the Court found that the applicability of Council 
Directive 89/106/EEC to a specific product requires two conditions to be met, one relating to 
the nature of the product and the other to its function6. Anchor devices secured in such a way 
that they are part of the construction work (nature of the product) and intended to ensure the 
safety in use or in the functioning of a construction work by preventing individuals to fall 
from a height (function of the pr oduct) are therefore covered by Council Directive 
89/106/EEC7. This finding is also valid under Regulation (EU) No 305/2011 which did not 
significantly change the definition of  construction products8. 
Anchor devices covered by types A, C or D of standard EN 795:2012 are meant to remain 
permanently fixed to the structure and are therefore , following this jurisprudence,  not personal 
protective equipment, as confirmed by Commission Implementing Decision (EU) 2015/21819. 
                                                 
1 OJ L 88, 4.4.2011, p. 5 . 
2 Case C -185/08, judgment of the Court of 21 Octobe r 2010, Latchways , ECR 2010 I -09983. 
3 Council Directive 89 /686/EEC of 21 November 1989 on the approximation of the laws of the Member 
States relating to personal protective equipment (OJ L 399, 30.12.1989, p. 18). 
4 Council Directive 89/106 /EEC of 21 December 198 8 on the approximation of laws, regulations and 
administrative provisions o f the Member States relating to construction products  (OJ L 40, 11.2.1989, p. 
12). 
5 Case C -185/08, paragraph 42 . 
6 Ibidem, paragraph 50 . 
7 Ibidem, paragraphs 53, 55 and 56 . 
8 Cf Article 1(2) of Council Directive 89/ 106/EEC and Article 2(1) of Regulation (EU) No 305/2011.  
9 Commission Implementing Decision (EU) 2015/2181 of 24 November 2015 on the publication with 
restriction in the Official Journal of the European Union of the reference to standard EN 795:2012 on  
EN 3   EN However, if they are meant to be secure d in such a way that they are part of the construction 
work and intended to ensure the safety in use or in the functioning of a construction work by 
preventing persons  from falling from a height or by arresting falls from a height, they are to 
be considere d construction products and thus covered by Regulation (EU) No 305/2011.  
As from 21 April 2018, anchor devices intended to prevent persons from falling and within 
the scope of Regulation (EU) 2016/42510 will belong to risk category III as set out in Annex I 
to that Regulation, as they are products intended to protect users from risks that may cause 
very serious consequences such as death or irreversible damage to health relating to falling 
from a height.  Accordingly, such anchor devices will be subject to EU type -examination 
(module B of Decision 768/2008/EC11) as set out in Annex V to Regulation (EU) 2016/425, 
and either conformity to type based on internal production control plus supervised product 
check s at random intervals (module C2 of Decision 768/2008/EC) as set out in Annex VII to 
that Regulation or conformity to type based on quality assurance of the production process 
(module D  of Decision 768/2008/EC) as set out in Annex VIII to that Regulation.  
Until 20 April 2018, anchor devices intended to prevent persons from falling and within the 
scope of Council Directive 89/686/EEC are subject to EC type -examination as set out in 
Article 10 of that Directive, and their production is subject to either the ' EC' quality control 
system for the final product (Article 11(A) of that Directive), or the system for ensuring EC 
quality of production by means of monitoring (Article 11(B) of that Directive).  
Taking into account the use of anchor devices and the risks of  possible death or irreversible 
damage to health which they are intended to protect users from, it is desirable that an AVCP 
system comparable to the conformity assessment procedures for anchor devices which are 
personal protective equipment is applied for  those anchor devices which are construction 
products. This implies an AVCP system comprising continuing surveillance, assessment and 
evaluation of the manufacturer's factory production control and audit testing of samples taken 
by the notified product cer tification body at the manufacturing plant or at the manufacturer's 
storage facilities.  
Those considerations have led the Commission to choose system 1+ as set out in Annex V to 
Regulation (EU) No 305/2011 for the construction products covered by the prese nt draft 
Delegated Decision.  
2. CONSULTATIONS  PRIOR  TO THE  ADOPTION  OF THE  ACT  
The draft Decision was discussed in the meeting of the Advisory Group on Construction 
Products12 (the AG) on 9 December 2016 and also submitted for written consultation of the 
experts between 25 November 2016 and 16 January 2017. Before those steps, all Member 
States were presented an opportunity to nominate experts to participate. In addition to these 
experts, also other external stakeholders were consulted. The documents discuss ed in the AG 
and relevant to the written consultation were transmitted simultaneously to the European 
Parliament and to the Council, as foreseen in the Common Understanding on delegated acts. 
                                                                                                                                                         
'Personal fall protection equipment – Anchor devices' under Regulation (EU) No 2015/2012 of the 
European Parliament and of the Council (OJ L 309, 26.11.2015, p. 10). 
10 Regulation (EU) 2016/425 of the European Parliament and of the Council of 9 March 2016 on personal 
protective equipment and repealing Council Directive 89/686/EEC (OJ L 81, 31.3.2016, p. 51). 
11 Decision 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 (OJ L 2018, 
13.8.2008, p. 82).  
12 Code E01329 in the Register of Commission Expert Groups and other Similar Entities .  
EN 4   EN The observations presented in these contexts were taken into acc ount when preparing the final 
draft version of this act for the inter -service consultation.  
It was published for public feedback on the Better Regulation Portal from 12 July  to 9 August  
2017; two stakeholders provided feedback. One stakeholder's comments b oth supported the 
proposed AVCP system , while at the same time recommending to change it to system 2+ . As 
these suggestions contradicted each other, they could not both be taken up . Another 
stakeholder referred  mainly to the state of play of discussions in  the CEN Technical 
Committee which is developing  the rel evant  standard, to AVCP systems 3 and  2+ previously 
chosen  for other  comparable  products, to a lack of documented experience regarding 
accidents, to costs for SMEs, to the absence of technical evolution necessitating a change of 
AVCP system and to the fact that the elements of the justification of the choice of AVCP 
system (cf recital (2))  are considered in system 2+ . As these comments expressed 
contradictory preferences for  an AVCP  system not higher than system 3 as well as  for system 
2+, did not take into account that system 2+ does not include audit testing of samples  and did 
not consider the conformity assessment procedures for anchor devices which are personal 
protective equipme nt, they were not taken up . Accordingly, the Regulation was not modified 
following the feedback . 
3. LEGAL  ELEMENTS  OF THE  DELEGATED  ACT  
Pursuant to Articles 28(2) and 60(h) of Regulation (EU) No 305/2011, AVCP systems of 
construction products, as set out i n Annex V to that Regulation, are to be established by 
delegated acts of the Commission, to be applicable to a given product, a given product family 
or a given essential characteristic, taking into account the considerations laid down in those 
provisions.  
When establishing the AVCP systems, pursuant to Article 28(2) of Regulation (EU) No 
305/2011, the Commission shall take into account the effect on the health and safety of people 
and choose the least onerous systems consistent with the fulfilment of all ba sic requirements 
for construction works. Pursuant to Article 60(h) of Regulation (EU) No 305/2011, this shall 
be done in accordance with the impact of the product to this fulfilment during its expected 
working life.  
The draft Decision conforms to the princ iple of proportionality, as applying an AVCP system 
comparable to the conformity assessment procedures for anchor devices which are personal 
protective equipment contributes to the coherence between the different legal frameworks 
applicable to comparable p roducts as well as to the robustness of, and the confidence in, the 
harmonised system put in place by means of Regulation (EU) No 305/2011.  
For those reasons, the draft Decision is expected to serve the interests of the construction 
sector as a whole.   
EN 5   EN COMMISSION DELEGATED DECISION (EU) …/…  
of XXX  
on the applicable system to assess and verify constancy of performance of anchor devices 
used for construction works and intended to prevent persons from falling from a height 
or to arrest falls from a height pursuant to Regulation (EU) No 305/2011 of the 
European Parliament and of the Council  
(Text with EEA relevance)  
THE EUROPEAN COMMISSION,  
Having r egard 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/EEC1, and in particular Article 
28 and Article 60(h)  thereof,  
Whereas:  
(1) An appropriate decision for assessment  and verification of constancy of performance 
does not exist for anchor devices used for construction works and intended to prevent 
persons  from falling from a height or to arrest falls from a height  ('anchor devices') . It 
is therefore necessary to establish which system of assessment and verification of 
constancy of performance is applicable to the anchor devices.  
(2) Taking into account that the anchor devices are intended to prevent persons from 
falling from a height  or to arrest falls from a height , it is appropriate to choose a 
system of assessment and verification of constancy of performance  that comprises  
continu ing surveillance, assessment and evaluation of the manufacturer's factory 
production control and audit testing of samples taken by the notified product 
certification body at the manufacturing plant or at the manufacturer's storage facilities , 
HAS ADOPTED T HIS DECISION:  
Article 1  
This Decision applies to anchor devices used for construction works and intended to prevent 
persons from falling from a height or to arrest falls from a height.  
Article 2  
The anchor devices referred to in Article 1 shall be assesse d and verified for constancy of 
performance in relation to their essential characteristics in accordance with the system 
specified in the Annex . 
                                                 
1 OJ L 88, 4.4.2011, p. 5.   
EN 6   EN Article 3 
This Decision shall enter into force on the twentieth  day following that of its publication in 
the Official Journal of the European Union . 
Done at Brussels,  
 For the Commission  
 The President  
 Jean -Claude Juncker