EUROPEAN COMMISSION Brussels, 30.3.2022 COM(2022) 144 final 2022/0094(COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down harmonised conditions for the marketing of construction products, amending Regulation (EU) 2019/1020 and repealing Regulation (EU) 305/2011 (Text with EEA relevance) {SEC(2022) 167 final} - {SWD(2022) 87 final} - {SWD(2022) 88 final} - {SWD(2022) 89 final}



EXPLANATORY MEMORANDUM 1.CONTEXT OF THE PROPOSAL •Reasons for and objectives of the proposal Regulation (EU) No 305/2011 of the European Parliament and of the Council (the ‘Construction Products Regulation’ or CPR) lays down harmonised conditions for the marketing of construction products. The CPR ensures the smooth functioning of the single market and the free movement of construction products in the EU. It does so through harmonised technical specifications, which provide for a common technical language on how to test and communicate the performance of construction products (e.g. reaction to fire, thermal conductivity or sound insulation). The use of standards is mandatory when they are cited in the Official Journal of the European Union (OJEU). Construction products covered by such standards must bear the CE marking which indicates that they comply with their declared performance. Such products can then freely circulate within the single market. EU Member States are not allowed to require any additional marks, certificates or testing. The CPR does not set product requirements. EU Member States are responsible for the safety, environmental and energy requirements applicable to buildings and civil engineering works. The Commission’s 2016 implementation report on the CPR identified certain shortcomings in its implementation and a significant number of challenges linked among others to standardisation, simplification for micro-enterprises, market surveillance and enforcement, deserving further examination and discussion. The evaluation of the CPR, opinions of the REFIT platform as well as Member States’ and stakeholders’ feedback pointed clearly to the shortcomings of the framework, hindering the functioning of the single market for the construction products, and therefore failing to achieve the CPR’s objectives. The November 2016 Clean Energy for all Europeans Communication stressed the need to unlock the growth and jobs potential by improving the functioning of the still fragmented single market for construction products. The European Green Deal Communication, the Circular Economy action plan and the Renovation Wave Communication highlighted the role of the CPR as part of efforts towards energy- and resource-efficient buildings and renovations, and in addressing the sustainability of construction products. The proposal for a revised Energy Performance of buildings Directive highlighted the importance of the life cycle GHG emissions of buildings and building materials to calculate the Global Warming Potential of new buildings as of 2030. The EU Forest Strategy and the Sustainable Carbon Cycle Communication announced, in the context of the revision of the Construction Products Regulation, the development of a standard, robust and transparent methodology to quantify the climate benefits of construction products and carbon capture and utilisation. Also, both the European Parliament and the Council have called for actions to promote circularity of construction products, to address barriers in the single market for construction products and contribute to the objectives of the European Green Deal and the Circular Economy action plan. Therefore, the two general objectives of the CPR revision are to (1) achieve a well-functioning single market for construction products and to (2) contribute to the objectives of the green and digital transition, particularly the modern, resource-efficient and competitive economy. This is an initiative within the Regulatory Fitness Programme (REFIT) as the proposal aligns with the aims of the REFIT programme, which are to make the EU laws simpler, more targeted and easier to comply with. This proposal aims to tackle the following problems: Problem 1: Single market for construction products not achieved. The standardisation process at the core of the CPR has been underperforming. In the recent years, draft harmonised standards developed by the European Standardisation Organisations (ESOs) could rarely be cited in the Official Journal (OJEU) mainly due to legal deficiencies. The lack of citation of up-to-date harmonised standards for construction products is a key factor undermining the smooth functioning of the single market, creating trade barriers and additional costs and administrative burden on economic operators. Outdated harmonised standards also mean that they are not always market-relevant, as the process cannot keep pace with the developments in the sector. Moreover, the current situation does not allow to fulfil the regulatory needs of the Member States. Due to these deficiencies, Member States apply national marks, certifications and approvals. This is in breach of the CPR and not in line with the jurisprudence of the European Court of Justice. In addition, given the underperformance of the conventional standardisation route, the workload has progressively increased on the alternative route to obtaining the CE marking via the European assessment documents (EADs). This increase in workload has therefore led to the Commission needing more time to carry out its assessments and it may even risk to paralysing the system. Problem 2: Implementation challenges at national level. These issues also add to the complexity of the legal framework and contribute to the fact that market surveillance activities widely vary (in quality and effectiveness) from one Member State to another. Ineffective market surveillance and enforcement in general limits the trust in the regulatory framework and is therefore a disincentive for companies to comply with the legislation. Drawbacks linked to the functioning of the Notified Bodies were identified in the implementation report indicating that relevant CPR provisions would benefit from more accuracy, e.g. on requirements for them (Article 43 of the CPR), on operational obligations for them (Article 52) and on coordination of them (Article 55). Problem 3: Complexity of the legal framework /simplification not achieved. Harmonised technical specifications provide for a common technical language on how to test and communicate the performance of construction products (e.g. reaction to fire, thermal conductivity or sound insulation). The CE marking under the CPR is linked to the assessment of the performance of a construction product, and not to its conformity with product requirements, as these are not set by the CPR. Given that this is a rather exceptional situation compared to other NLF legislation, the meaning of the CE marking is often misunderstood and misinterpreted. Other provisions of the CPR are insufficiently clear or create overlaps either within the framework itself (e.g. the overlap between the information required for the declaration of performance and for the CE marking), or between the CPR and other EU legislation (potentially parallel routes to CE marking for some construction products under the CPR and the Ecodesign Directive). Moreover, the uptake of the simplification provisions of the CPR aimed mainly at SMEs has been limited, due to lack of awareness and lack of clarity of the provisions. The smallest companies bear the largest administrative burden. Overlaps and inconsistencies create inefficiencies. In addition, there are no specific provisions on providing information in the digital format. This will become a challenge particularly as reliable product information, from manufacturing to the installation in the building and demolition, will be necessary in the context of the digital building logbooks, Level(s) or other tools for assessing and reporting on the sustainability performance of buildings. Problem 4: The CPR is unable to deliver on broader policy priorities, such as the green and digital transition, and product safety.

The available harmonised assessment methods for the performance of construction products cover only some elements linked to the environmental impacts such as pollution but have not been established with regards to sustainable use of natural resources. Furthermore, the CPR does not allow to establish environmental, functional and safety product requirements for construction products, therefore hampering the possibility to address non-performance based issues. However, to stimulate the incentives and demand for low-carbon and carbon-storing construction products, coherent and transparent information on the climate, environmental and sustainability performance of the construction products is needed as well as the possibility to govern inherent product characteristics such as durability or reparability. Enhancing the circularity of construction products will also strengthen the EU’s resilience regarding access to construction materials. Moreover, digital information on construction products is not sufficiently available to address the goals of circularity and sustainability and to provide information required by other related legislation (e.g. the Energy Performance of Buildings Directive or the Ecodesign for Sustainable Products Regulation). The CPR significantly limits the possibilities for the sector to declare, in a consistent and harmonised way, the performance of their products and to differentiate the products with regard to climate, environment and sustainability performances. It also significantly limits the possibilities for Member States to define national requirements for buildings or to include criteria in public procurement on sustainability objectives without putting at risk the functioning of the single market. •Consistency with existing policy provisions in the policy area The initiative is consistent with the do not significant harm principle, as it contributes to the objectives of the green transition of the European Green Deal (in particular the Renovation Wave) and the Circular Economy action plan. It promotes a greener manufacturing, re-use, remanufacturing and recycling of construction products. It ensures climate adaptation. It supports the revision of the Energy Performance of Buildings Directive by providing information on the environmental performance of construction products and thereby facilitating the calculation of energy performance of buildings, of their Global Warming Potential and of carbon removals associated to carbon storage. The Circular Economy action plan announced the Sustainable Products Initiative (SPI) aiming to make products fit for a climate-neutral, resource-efficient and circular economy, in particular with the adoption of the Ecodesign for Sustainable Products Regulation (ESPR). Where product-specific EU legislation, like this proposal, regulates the environmental and climate sustainability aspects of products, further policy and legislative development should remain in the dedicated instrument, with the same level of stringency as the ESPR. This contributes to better coherence of EU rules on specific products and avoids administrative burden on economic actors who would otherwise have to comply with requirements laid down in different EU legislations. Therefore, given the strong interlinkages between the environmental and structural performance of construction products, including health and safety aspects, this proposal lays down sustainability requirements for construction products. However, specific circumstances may justify targeted intervention on construction products under the ESPR. This will be the case for example for energy related construction products, which are already regulated under the existing Ecodesign Directive, such as solid fuel stoves. ‘A New Industrial strategy for Europe’ Communication of March 2020 sets out a plan for EU industry to lead the twin green and digital transitions, drawing on the strength of its traditions, its businesses and its people to enhance competitiveness. To deliver on these goals, an industrial ecosystem-based approach was defined in order to better connect the needs and support the key players in each value chain. The Communication updating the 2020 New Industrial strategy identified construction as one of the priority ecosystems that face the most important challenges meeting climate and sustainability goals and embracing the digital transformation, and whose competitiveness depends on this. The Commission has been developing a transition pathway for the construction industry ecosystem, in a process of co-creation with industry, stakeholders and Member States, as part of the updated Industrial Strategy. As part of this work, the Commission published on 15 December 2021 a staff working document that proposes scenarios for construction to become more green, digital and resilient. An enabling and regulatory framework fit for the future, that fosters investments and the building of trust is key to the ecosystem's resilience and a prerequisite for the twin transition. The SME Strategy for a sustainable and digital Europe stressed the important role of the SMEs in driving the green transition and reiterated the need to equip them with instruments to understand and mitigate environmental risks, including in the construction sector. ‘An EU strategy on Standardisation: Setting global standards in support of a resilient, green and digital EU single market’ identified construction as one of the most pertinent areas where harmonised standards could improve competitiveness and reduce market barriers. 2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY •Legal basis The proposal is based on Article 114 of the Treaty on the Functioning of the European Union (TFEU) because the main purpose of the Regulation is to remove obstacles to the circulation of construction products within the single market. •Subsidiarity (for non-exclusive competence) Without an EU regulation, the shortcomings of the CPR cannot be remedied by national laws, as the Member States have no powers to amend the CPR framework nor for correcting its failures through national measures. Currently, in the absence of appropriate standardisation at the EU, environmental and safety performances of construction products are addressed in different ways at the national level, leading to a divergence in the requirements for economic operators. EU action is therefore justified and necessary. Only at the EU level can the conditions to ensure the free circulation of construction products be set while ensuring a level playing field and pursuing sustainability goals. As for the added value of action at the EU level, the proposal will contribute to the improvement of the overall functioning of the single market for construction products by increasing legal certainty as well as predictability, improving the level playing field for the construction ecosystem and addressing the aspects of climate and environmental performance and circularity of construction products, which can only be tackled at the EU level. •Proportionality The proposal is consistent with the principle of proportionality because it does not go beyond what is necessary to achieve a well-functioning single market for construction products and is proportionate in achieving the intended objective. The proposal aims at addressing the identified shortcomings of the CPR and the objectives of the European Green Deal and the Circular Economy action plan in relation to construction products, while building on the core principles of the CPR (including the harmonised standards developed by the European Standardisation Organisations). Addressing and improving the core functioning of the CPR framework, in particular the standardisation process, is imperative in delivering of the policy objectives. Some of the new features such as product requirements or Commission acts containing technical specifications will be applied only when needed for specific products. The proposal addresses all the problems that have been identified in the most effective and efficient way. It proposes a future proof and comprehensive regulatory framework, integrates fall-back solutions and new regulatory tools that can be activated, if a specific product category or group, based on a detailed analysis needs it. Given the broad variety of construction products, only this approach can ensure that the goals of the proposal are effectively pursued without creating unnecessary burdens for economic operators. •Choice of the instrument

The proposal takes the form of Regulation, repealing the CPR currently in force. It ensures a common implementation of the proposed legislation across the EU. 3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS •Ex-post evaluations/fitness checks of existing legislation In 2016, the Commission published a supporting study for the Fitness Check on the construction sector. The study assessed the coherence of selected EU acts applying to the construction sector and considered the legal overlaps between the CPR and Ecodesign Directive (2009), and Energy Labelling Directive. It also confirmed the inconsistencies in definitions, lack of cross-references and overlaps between the three pieces of legislation. In 2019, the Commission published the evaluation of the CPR. The overarching issues identified in this evaluation, in order of importance, were (i) underperforming standardisation system at the core of the CPR, (ii) ineffective and widely varying (from one Member State to another) market surveillance and (iii) less simplification achieved by the CPR than expected. The conclusions of both documents have been taken into account in the proposal. •Stakeholder consultations Throughout the preparation of the proposal, various stakeholders were consulted: Member States, European technical bodies and associations, national authorities, companies/manufacturers, importers and distributors, consumer associations, market surveillance authorities, European/international organisations (industry associations), notified bodies, workers/professionals’ associations and others, such as individuals and other NGOs. In line with the EU better regulation guidelines, several consultation activities took place. A brief description is set out in the bullet points below. ·Horizontal online survey (survey on horizontal issues) The horizontal survey targeted selected experts and aimed at identifying how to address the various horizontal issues identified during the evaluation of the CPR in order to collect input to be used to further refine of the policy options. ·Two dedicated meetings with Member States’ experts on the CPR review took place in March and September 2020 The purpose of the meetings was to discuss about the process and the refined indicative options paper, as well as to collect Member States’ views on the following topics: scope and relationship with other EU law, harmonised sphere, national law and information needs, Annex I (basic requirements for construction works) and environmental requirements. ·Company survey The purpose of the company survey was to assess how the refined indicative policy options were expected to impact companies in the European construction products sector. The survey targeted economic operators in the sector. ·Public consultation The public consultation showed that all stakeholder groups strongly rejected a repeal of the CPR (policy option E). In most stakeholder groups, the largest groups were in favour of maintaining the current CPR (i.e. baseline policy option A). A substantial part of the stakeholder groups preferred a revision of the CPR (i.e. policy options B, C or D). In addition, the company survey showed that although economic operators were broadly in favour of the current CPR, they highlighted a number of issues that needed to be addressed, which required a revision. Primarily, this concerned the standardisation process. •Collection and use of expertise The quantitative and qualitative analysis of the impacts of different options was supported by a specific technical support contract.

The study collected and complemented available evidence to analyse the policy options and assess their possible impacts. The policy options have been explored to assess preferences and impacts mainly through the survey and public consultation findings. Moreover, additional expertise was identified through relevant reports, studies and meetings with the Member State representatives, business associations, companies, technical bodies and testing bodies. •Impact assessment The Commission carried out an impact assessment on the revision of the CPR. After addressing the Regulatory Scrutiny Board’s comments issued in its first negative opinion of 26 July 2021, the impact assessment received a positive opinion with reservations on 26 January 2022. The Board’s opinions as well as the final impact assessment and its executive summary are published together with this proposal. The impact assessment examined and compared five policy options to address the problems relating to the CPR: Option A – Baseline (no revision) The baseline scenario implied no revision of the Regulation but improving implementation through guidance and other soft law measures. The baseline scenario meant therefore a continuation of the harmonisation system and its implementation. Option B – Repairing the CPR Option B aimed at addressing the issues highlighted in the evaluation with the following actions: ·Address the challenges of the technical harmonisation system, option B introduces an empowerment for the Commission to rely on a ‘fall-back’ solution in case the standardisation system is not delivering standards in time and of sufficient quality. ·Continued existence of national requirements and marks will be mitigated by clearly defining the area regulated at the EU level. ·Enable a harmonised framework to assess and communicate the environmental performance of construction products. ·Set up a digital structure compatible with the Digital Product Passport. ·Promote the reuse of construction products. ·Enhance market surveillance by strengthening enforcement powers and aligning the performance of different market surveillance authorities and possibly setting a minimum number of checks and minimum level of human resources to be deployed in the market surveillance of construction products. ·Enhance common decision-making amongst all authorities and notified bodies. ·Mitigate overlaps with other EU legislation by introducing collision rules and ensuring coherence. ·Introduce a specific marking for construction products (European Construction Product – ECP) to clarify that the marking refers to performance declaration and not to conformity. ·Targeted provisions and an empowerment for Member States to exempt conditionally certain micro-enterprises from the CPR obligations. Option C – Focusing the CPR

This option builds on the elements described in option B. However, in option C, the CPR’s scope of application is limited to certain areas, depending on the following three sub-options which can be combined: ·Sub-option C1: Harmonised standards and Commission Acts containing technical specifications would include only assessment methods for performance calculation, with no performance threshold levels, classes or other requirements to be established at EU level. ·Sub-option C2: The CPR’s scope would focus on the core areas only, according to the Member States’ regulatory needs, the relevance for the environment or for product safety and the market relevance. ·Sub-option C3: Member States would have the option to offer an alternative path to market access based on national regulations and not relying on harmonised standards and Commission Acts containing technical specifications. Option D – Enhancing the CPR Building on option B, requirements dealing with product inherent characteristics may also be introduced to protect public health, safety and the environment. Such product-specific requirements can be formulated via three sub-options/approaches (sub-options D1 and D2 could be combined): ·Sub-option D1: new legislative framework approach for products requirements (relying on standardisation developed by the European Standardisation Organisations); ·Sub-option D2: Common technical specifications approach (developed by or under the supervision of the Commission); ·Sub-option D 3: hybrid between D1 and D2. Option E - Repealing the CPR The CPR would be repealed. Trade in construction products would rely on mutual recognition. The preferred option Option D was found to be the preferred option because it paves the way for the objectives and the main shortcomings of the CPR framework to be addressed with the highest degree of effectiveness and coherence. This ensures the free movement of construction products within the single market and fully responds to the ambitions stemming from the European Green Deal and Circular Economy action plan. The main changes are as follows: ·Provide a clearer definition of the scope and inclusion of reused and 3D-printed construction products and pre-fabricated houses. ·Introduce a new empowerment for the Commission to (1) adopt technical specifications via Commission acts for cases where the standardisation system is not delivering on time and of sufficient quality; (2) set product requirements. ·Introduce environmental, functional and safety product requirements for construction products. ·Establish a ‘harmonised zone’, a clearer division of Member States’ roles and a mechanism to gather information on to exchange proactively on Member States’ regulatory needs or measures and address those in the respect of the single market objectives. ·Introduce a new obligation for manufacturers to provide a declaration of conformity (compliance with product requirements) in addition to a declaration of performance; possibility to provide information via electronic means. ·Provide a list of general sustainability requirements (to be further defined per product family in Commission acts/harmonised standards). ·Introduce and improve simplification and exemption provisions for micro-enterprises.

·Strengthen enforcement powers of market surveillance authorities. ·Extending the role of the product contact points for construction to support economic operators. ·Establish a new Commission system allowing any natural or legal person to share complaints or reports related to possible breaches of the Regulation. ·Align with the Ecodesign for Sustainable Products Regulation on climate and environmental sustainability and on the Digital Product Passport. Option D had envisaged replacing the CE marking by a new label (‘European Construction Product’ or ‘ECP’ marking). However, there is also a risk that such a change could increase the unclarity for economic operators instead of reducing it, especially during the transition period while two markings would have been required. Therefore, the CE marking will be kept and manufacturers will have to affix it on products for which they have drawn up a declaration of performance or conformity. While the study supporting the impact assessment concluded that option D may lead to additional costs for the economic operators, mainly due to the introduction of environmental performance information declaration, there were certain limitations linked to the data used. Because of the additional simplification implied by option D, it may actually bring about net reduction of around EUR 180 million in terms of administrative burden (see Annex III to the impact assessment report). •Regulatory fitness and simplification The proposal will minimise compliance costs through a well-performing standardisation process, by clearer provisions, incentivising re-use of products, less additional national requirements and creating a level playing field for all manufacturers, especially SMEs, in all Member States. Moreover, the planned work sharing and the technical fine-tuning with the Ecodesign for Sustainable Products Regulation will avoid unnecessary costs for businesses, especially SMEs. The proposal makes maximum use of the potential of digitalisation to reduce administrative burden, considering that the CPR does not provide for the application of digital tools. All of the proposal’s related information and documentation may be processed in digital form (e.g. Digital Product Passport) and stored, shared and accessed durably in an information system. This will lead to greater transparency along supply chains, allow construction products’ data to be stored in building logbooks and used for calculations required under other legislation (e.g. Energy Performance of Buildings Directive). This will also facilitate market surveillance. Further reducing the administrative burden for manufacturers will be achieved by eliminating the overlap between the CE marking and the declaration of performance. Member States will also be able to exempt micro-enterprises not trading across borders from the obligations. By introducing a new empowerment for the Commission to introduce a minimum number of checks to be performed by market surveillance authorities, the proposal aims to improve the uneven application of the CPR rules on the market. This may require more capacity for market surveillance authorities, but will allow better support for Member States in exercising their responsibility to ensure the safety and sustainability of construction works. •Fundamental rights The proposal has no impact on the protection of fundamental rights. 4.BUDGETARY IMPLICATIONS The proposal will require additional resources to effectively manage the CPR framework. The requested increase in staff needs of 7 FTE is proportionate to the objectives. Commission staff will carry out the following main activities: ·Develop and implement the CPR; ·Develop secondary legislation (implementing and delegated acts); ·Develop and manage standardisation requests and Commission acts; ·Assess and cite harmonised technical specifications; ·Develop common technical specifications;

·Liaise with the European Standardisation Organisations on pre-standardisation work and standardisation; ·Engage with stakeholder on technical issues; ·Provide support to Member State authorities; ·Provide training to Member States authorities, notified bodies and other bodies; ·Provide guidance to Member States and businesses. These activities are of a legal, technical and administrative nature and need to be carried out within (or, in some cases, under the supervision of) Commission departments. In this context, staff numbers in charge of managing the current CPR framework would need to be increased and supported by other Commission departments (i.e. JRC) or by use of outsourcing. In particular, for the scientific and technical support to the preparation of delegated and implementing acts and to horizontal tasks. The degree to which the proposal will be able to respond to the objectives will largely dependent on the Commission resources available. 5.OTHER ELEMENTS •Implementation plans and monitoring, evaluation and reporting arrangements The Commission will monitor the implementation, the application and compliance with these new provisions to assess their effectiveness. Policy monitoring and evaluation related to the proposal would be centred around the core issues to be addressed by the revision: functioning of the standardisation process, availability of environmental and product safety information, and environmental and product safety requirements incorporated in technical specifications, impacts on the functioning of the market surveillance. It is proposed that an evaluation of the proposal should take place no sooner than 8 years after the date of application, allowing the results and impacts of the new rules to take shape. •Explanatory documents (for directives) As the legal instrument is a Regulation, which is directly applicable in the Member States, there is no need for an explanatory document. •Detailed explanation of the specific provisions of the proposal Chapter I of the Regulation contains the general provisions. Article 1 describes the subject matter, explicitly referring to environmental, climate and safety performance of construction products in relation to their essential characteristics, as well as to environmental, climate, functional and safety product requirements. Article 2 defines the scope, including construction products, 3D-printing related products and services, key parts, part or materials if requested by the manufacturer, kits or assemblies covered harmonised technical specification or EADs, pre-fabricated one-family houses. In specified cases, the Regulation also applies to used products. Compared to the CPR, the scope is amended to avoid overlaps e.g. with the Drinking Water Directive and the Urban Waste Water Directive. Article 3 lays down the definitions. Article 4 defines the basic work requirements and modalities to establish the essential characteristics (performance-based, e.g. recycled content) of construction products. This will be done based on the basic requirements for construction works set out in Part A of Annex I and, together with assessment methods, will form part of standards rendered mandatory for purposes of application of this Regulation. The Commission is also empowered to adopt delegated acts defining thresholds and classes of performance in relation to the essential characteristics. In addition, in case of delays or deficiencies of the standardisation process, the Commission is empowered to adopt delegated acts containing technical specifications. Furthermore, the Commission is empowered to amend Annex I Part A, through delegated acts, in the light of technical progress or to cover new risks and environmental aspects. Article 5 states that all products covered by the Regulation need to satisfy the generic, directly applicable requirements and the respective product family or category requirements, set out in Annex I Part D. It also gives the empowerment to the Commission to adopt delegated acts defining more precisely product requirements according to Annex I Part B, C and D. These delegated acts may be further complemented by voluntary harmonised standards developed under a standardisation request. In addition, the Commission is also empowered to amend Annex I Part B, C and D, through delegated acts, in the light of technical progress or cover new risks and environmental aspects. Article 6 provides an empowerment for the Commission to determine the applicable assessment and verification system, including the additional steps needed to counter systematic non-compliances.

Article 7 defines the ‘harmonised zone’, as opposed to the areas under the responsibility of Member States. In addition, it sets up a mechanism to deal with Member States imperative regulatory needs on health, safety or protection of the environment, including climate. Article 8 provides for an empowerment to adopt delegated acts determining to avoid double assessment of products under this Regulation and other Union law. Chapter II (Articles 9 to 18) sets out the procedure, declarations and marking. Articles 9 to 12 govern the declaration of performance (DoP) and its applicable exemptions (including for micro-enterprises who do no trade cross-border, under certain conditions: for remanufactured products or for parts of construction works prepared for re-use or remanufactured). Articles 13 and 14 lay down rules on declaration of conformity (DoC, conformity with product requirements pursuant to Article 5). To minimise the administrative burden, the DoC shall be combined with the DoP. Under Article 15, a DoP and a DoC can be supplied in an electronic format or via a permalink. They shall be supplied in the languages required by the Member States where the manufacturer intends to make the product available. Articles 16 to 18 set the general principles and conditions for the CE marking and for use of other markings. Chapter III (Articles 19 to 33) defines the rights and obligations of economic operators. It sets out general and detailed obligations for manufacturers, including on how to use the relevant harmonised technical specification (harmonised standards and delegated acts) to assess and declare the performance of the product. In particular, Article 22 defines the environmental obligations for manufacturers including the obligation to declare the mandatory sustainability characteristics set out in Annex I Part A Section 2, the global warming potential, and performance-based requirements or the minimum recycled content. Following the adoption of delegated acts for a given product family, the manufacturers are also required to –Design and manufacture products and their packaging in such a way that their overall environmental and climate sustainability reaches the state of the art level. –Give preference to recyclable materials and materials produced from recycling; –Respect the minimum recycled content obligations and other limit values for environmental sustainability contained in harmonised technical specifications; –Prevent premature obsolescence of products, use reliable parts and design products in such a way that their durability does not fall below the average durability of products for their respective category; –Design products in such a way that they can be easily repaired, refurbished and upgraded. Further Articles define the specific obligations of authorised representatives (Article 23), importers (Article 24) such as to ensure that products remain safe while under their control, to check that the manufacturer has fulfilled their general obligations, distributors (Article 25), obligations of fulfilment service providers, brokers, online market places, online sellers and online shops (thereby integrating them into a compliance-ensuring architecture) (Article 27) and 3D-printing providers (Article 28). It thus introduces provisions allowing the framework to address also the new business models. It also introduces new specific obligations of economic operators de-installing or dealing with used products for re-use or remanufacturing (Article 29) and obligations for double use and pseudo products (Article 31). It regulates online or distance sales of construction products (Article 32). Chapter IV (Articles 34 to 42) contains rules on construction products standards and European assessment documents (EADs). It includes mandatory application for all performance-based requirements and voluntary for inherent product requirements. It establishes rules for the EADs and their relationship with the DoP and DoC (Article 35), EADs development, adoption (Article 36) and publication (Article 38), the content requirements for the EADs (Article 40) and for addressing the unjustified proliferation of EADs (Article 36). It also governs rules for dispute resolution in cases of disagreement among technical assessment bodies (TABs) (Article 39). Chapter V (Articles 43 to 46) establishes requirements for designating authorities in charge of TABs and rules on how to designate, monitor and evaluate them. It also introduces empowerments to the Commission to lay down the requirements for TABs in terms of staffing and to set out the coordination tasks of TABs. Chapter VI (Articles 47 to 63) describes the role of notifying authorities (Article 48) requirements applicable to these authorities (Article 49), including most important operational and information obligations. It establishes the requirements for the notified bodies (Art. 50), their operational obligations (Article 60) and information obligations (Article 61) and lists the obligations of a notified body with regard to its subcontractor or subsidiary (Article 53). It also lays down the rules on the use of facilities other than the testing laboratory of the notified body (Article 54). A procedure for Member States and the Commission raising formal objections to harmonised standards for accreditation is envisaged (Article 52). Chapter VII (Articles 64 to 67) provides for simplified procedures. In order to reduce the administrative burden, particularly for SMEs and micro-enterprises, this chapter lays down simplification procedures, including Article 64 on using appropriate technical documentation, Article 65 allowing micro-enterprises to use the more lenient verification system, Article 66 reducing the requirements for custom-made non-series products installed in an identified single construction work, Article 67 on the recognition of the assessment and verification of another notified body. Chapter VIII (Articles 68 to 76) sets out rules on market surveillance and safeguard procedures. Article 68 empowers the Commission to set up a system allowing any natural or legal person to share complaints or reports on possible non-compliances with this Regulation.

Article 70 provides for how to deal with non-compliance, Article 71 for the EU safeguard procedure for cases in which the Member States can validly refer to imperative grounds of health, safety or protection of the environment. Article 72 sets out rules to deal with complying products presenting a risk. Article 73 contains an empowerment for the Commission to lay down a minimum number of checks to be performed by market surveillance, as well as to lay down minimum human resources to be deployed by the market surveillance authorities for construction products. Article 74 provides for market surveillance coordination and an administrative cooperation group (ADCO). To strengthen the capacities of market surveillance authorities, market surveillance authorities have the right to recoup the costs of inspections and testing from economic operators (Article 75). Market surveillance authorities are required to report annually to the Commission on their activities (Article 76). Chapter IX (Articles 77 to 81) defines the principles on information and administrative cooperation. It is introduced to strengthen the overall system and the application of the Regulation, to avoid diverging decisions that could create an uneven playing field. In line with these objectives, Article 77 establishes and maintains an information and communication system to ensure a harmonised interpretation and application of this Regulation. Article 78 empowers the Commission to set up an EU construction products database or system to facilitate the access to product information (especially DoP, DoC and instructions for use). Article 79 revises the rules on the product contact points for construction in order to better support the economic operators. Article 80 requires the market surveillance authorities, product contact points for construction, designating authorities, TABs, notifying authorities and notified bodies to remain up-to-date in their area of work and to receive training on the common interpretation and application of the rules. It also requires the Commission to organise the training at least once a year. Article 81 allows Member States to jointly designate authorities to fulfil their obligations under the Regulation and to share resources and responsibilities. Chapter X (Article 82) sets the conditions for a cooperation with non-EU countries, also with a view of limiting the negative effects of non-compliance of economic operators based in these countries on the single market. Chapter XI (Articles 83 and 84) addresses Member States’ incentives and green public procurement. Article 83 sets out the approach for the Member States to incentivise the use of more sustainable construction products. Article 84 empowers the Commission to develop sustainability requirements for green public procurement of construction products. Chapter XII (Article 85) empowers the Commission to determine whether a specific item is a construction product. Chapter XIII (Article 86) amends Regulation (EU) 2019/1020 so that Regulation (EU) 2019/1020 also applies to construction products. Chapter XIV (Articles 87 to 94) sets out the final provisions. Article 87 lays down the conditions for the adoption of delegated acts in the Regulation. Article 88 mandates the role of the Standing Committee on Construction. Under Article 91, Member States shall lay down the rules that apply to penalties for breaching with the Regulation. Article 91 requires an evaluation of the Regulation no sooner than eight years after the date of application of the Regulation. Article 93 provides transitional provisions, permitting the phased transfer of all harmonised standards from the CPR to the new Regulation and thus a smooth phasing-in for economic operators. Article 94 provides for the date of entry into force and the date of application of the Regulation. Similarly to the CPR, the enacting terms of the proposal are accompanied by several annexes, namely: –Annex I on the basic requirements for construction works (Part A), as in the CPR, and on new elements: performance-based product requirements (Part B), inherent product requirements, particularly related to safety and environment (Part C) and information requirements (Part D); –Annex II on the content of the declaration of performance (DoP) and declaration of conformity (DoC); –Annex III on the procedure for adoption of a European assessment document (EAD); –Annex IV on the product areas and requirements for technical assessment bodies (TABs); –Annex V on the Assessment and Verification Systems; –Annex VI on the essential characteristics for which a reference to a relevant harmonised technical specification is not required in the context of notification of notified bodies; –Annex VII on the correlation table. 2022/0094 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

laying down harmonised conditions for the marketing of construction products, amending Regulation (EU) 2019/1020 and repealing Regulation (EU) 305/2011 (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee ( 1), Acting in accordance with the ordinary legislative procedure ( 2), Whereas: (1)Regulation (EU) No 305/2011 of the European Parliament and of the Council was adopted in the context of the internal market, in order to harmonise conditions for the marketing of construction products and to remove obstacles to trade in construction products between Member States. (2)In order for a construction product to be placed on the market, the manufacturer is obliged to draw a declaration of performance for such product. The manufacturer assumes the responsibility for the conformity of the product with such declared performance. Certain exemptions to this obligation are provided. (3)Experience with the implementation of Regulation 305/2011, the evaluation conducted by the Commission in 2019 as well as the report on the European Organisation for Technical Assessment have shown the underperformance of the framework in various respects, including as regards the development of standards and the market surveillance. In addition, feedback received in the course of the evaluation has pointed to the need of reducing the overlaps, contradictions and repetitive requirements, including in relation to other Union legislation, in order to provide more legal clarity and limit the administrative burden on the economic operators. It is therefore necessary to lay down more specific and detailed legal obligations for economic operators, as well as new provisions including as regards technical specifications and market surveillance, so that legal certainty is increased and that diverging interpretations are avoided. (4)It is necessary to establish well-functioning information flows, including via electronic means, to ensure that coherent and transparent information about construction products performances is available along the supply chain. This is expected to increase transparency and to improve efficiency in terms of information transfer. Ensuring digital access to comprehensive information about construction products would contribute to the digitalisation of the construction sector altogether, making the framework fit for the digital age. Access to reliable and durable information would also mean that economic operators and other actors do not contribute to each other’s non-compliance. (5)The European Parliament resolution of 10 March 2021 on the implementation of Regulation (EU) No 305/2011 welcomed the Commission’s objective to make the construction sector more sustainable by addressing the sustainability performance of construction products in the revision of Regulation 305/2011, as announced in the Circular Economy Action Plan. The Council Conclusions on the Circular Economy in the Construction Sector from 28 November 2019 urged the Commission to facilitate the circularity of construction products when revising the Construction Products Regulation (EU) No 305/2011. The Commission Communication ‘A New Industrial Strategy for Europe’ stressed the need to address the sustainability of construction products and highlighted a more sustainable built environment as essential for Europe’s transition towards climate-neutrality. The Commission Communication ‘Updating the 2020 New Industrial Strategy: Building a stronger Single Market for Europe’s recovery’ identified construction as one of the priority ecosystems that face the most important challenges meeting climate and sustainability goals and embracing the digital transformation, and on which the competitiveness of the construction sector depends. It is therefore appropriate to lay down rules for declaring environmental and sustainability performance of construction products, including the possibility of establishing relevant thresholds and classes. (6)Similarly, the 2022 EU Strategy on Standardisation identified construction as one of the most pertinent areas where harmonised standards could improve competitiveness and reduce market barriers. (7)Pursuing the environmental goals, including the fight against climate change, makes it necessary to establish new environmental obligations and to lay the ground for the development and the application of an assessment method for the calculation of the environmental sustainability of construction products. For the same reason, it is necessary to extend the range of regulated economic operators, since distributors, suppliers and manufacturers all have a role to play in the calculation of the environmental sustainability in the construction sector. That range should therefore be extended into two directions, downstream from the distributors to the economic operators preparing re-use and remanufacturing of construction products and upstream from the manufacturer over the suppliers of intermediate products and/or raw materials. Moreover, certain operators coming into play in the context of dismantling used products or other parts of construction works or remanufacturing and re-use thereof need to contribute to a safe second life of construction products. (8)To ensure safety and functionality of construction products and, by extension, of construction works, it is necessary to avoid that items that are not intended by their manufacturers to be construction products are placed on the market as construction products. Importers, distributors and other downstream economic operators should therefore ensure that those pseudo construction products are not sold as construction products. Moreover, certain service providers such as fulfilment service providers or 3D-printing service providers should not contribute to the non-compliances of other economic operators. It is therefore necessary to render relevant provisions applicable also to these services and their providers. (9)It is possible that different economic operators provide a 3D-printing dataset, a 3D-printing machine or mould, and the material to be used therein, leading to a situation where none of those operators would be responsible for the safety and appropriate performance of the 3D-printed product. To avoid possible safety risks in this respect, it is therefore necessary to lay down provisions for 3D-printing datasets, materials intended to be used for 3D-printing and for 3D-printing services that permit 3D-printing of construction products, so that, by respecting these provisions, the economic operators jointly reach a level of safety similar to the one ensured for ordinary construction products. (10)In order to ensure safety and protection of the environment and to close a regulatory loophole that would otherwise exist, it is necessary to clarify that construction products manufactured on the construction site for immediate incorporation into the construction works are subject to the same rules as other construction products. Micro-enterprises, however, often individually manufacture and install products on site. Subjecting those micro-enterprises under all circumstances to the same rules as other enterprises would disproportionally affect those micro-enterprises. It is therefore necessary to enable Member States to exempt micro-enterprises from drawing up a declaration of performance in specific situations, where the interests of other Member States are not affected. (11)Ensuring the free movement of kits or assemblies of construction products on the internal market will bring tangible benefits to citizens, consumers and businesses, particularly. However, for reasons of legal certainty, their composition should be precisely defined in harmonised technical specifications or European assessment documents.

(12)Creating a Union market for small prefabricated one-family houses has a potential to reduce the price of housing and to have positive social and economic effects. Fairness to consumers remains a priority, specifically but not limited to ensuring affordability of housing in the context of the green transition, in line with Proposal for Council Recommendation on Ensuring a fair transition towards climate neutrality, in particular recommendations 7 a)-c). It is therefore necessary to lay down harmonised rules for such small houses. However, small houses are also construction works, for which the Member States are competent. As it might not be possible to integrate cumulatively all national requirements for small prefabricated one-family houses into the future harmonised technical specifications, Member States should have the right to opt out of the application of rules that are to apply to those pre-fabricated one-family houses. (13)The compliance of construction products with Union legislation often depends on the compliance of their key parts with that legislation. However, because key parts are often integrated into various construction products, the protection of safety and of the environment, including climate, is better achieved when those key parts are assessed upstream, that is when the performance and conformity of key parts will be assessed beforehand and independently from the assessment of the final construction product into which they are integrated. Similarly, market surveillance becomes more efficient when non-compliant key parts can be identified and targeted. Hence, it is necessary to lay down rules applicable to key parts of construction products. (14)Construction products that have already been assessed and are reused should not be subject to the rules that apply to new construction products. However, used construction products that have never been placed on the Union market before, should be subject to the same rules as new construction products, given that such products have never been assessed. (15)To ensure that safety and functionality of construction products is safeguarded, rules applicable to new construction products should also apply to used construction products where the intended use is changed, except to decoration purposes, for used construction products with unclear initial intended use, for used construction products which have undergone an important transformative process and for used construction products for which an economic operator claims additional characteristics or the fulfilment of product requirements. (16)The fact that used construction products should, in principle, not undergo a new assessment, should not prevent the economic operator from having those construction products assessed if that helps to make the use of those used construction products more attractive by proving that those construction products still have certain characteristics or fulfil the applicable product requirements. (17)Construction products placed on the market in the outermost regions of the European Union are often imported from neighbouring countries, and are therefore not subject to requirements laid down in Union law. Subjecting those construction products to such requirements would be disproportionately costly. At the same time, construction products manufactured in the outermost regions hardly circulate in other Member States. Accordingly, Member States should have the possibility to exempt construction products placed on the market or directly installed in the outermost regions of the European Union from those requirements. (18)In order to strive for a maximum of regulatory coherence, this Regulation should to the extent possible build on the horizontal legal framework, in this case namely on Regulation (EU) No 1025/2012 of the European Parliament and of the Council. It follows the recent trend in product legislation to develop a fall-back solution where the European Standardisation Organisations do not deliver harmonised standards which can be cited in the Official Journal. As no harmonised standards for construction products could be cited in the Official Journal since late 2019 and only some dozen since Regulation (EU) No 305/2011 came into force, the new back-up empowerments for the Commission should be even more comprehensive, permitting to optimise the overall output of technical specifications so to catch up the delay in the adaptation to technical progress. (19)Where harmonised standards lay down the rules for the assessment of performances with regard to essential characteristics relevant for the construction codes of Member States, harmonised standards should be rendered mandatory for purpose of application of this Regulation, as only such standards reach the goal of permitting the free circulation of products, whilst ensuring the Member States’ ability to request safety and environmental, including climate-related, product characteristics in view of their specific national situation. When pursued together, these two goals require that products are assessed by a single assessment method, therefore the method needs to be mandatory. However, voluntary standards can be used to make product requirements, specified for the relevant product family or category by Delegated Acts, even more concrete, following the path of Decision 768/2008 of the European Parliament and of the Council. In line with Decision 768/2008, those standards should be able to provide a presumption of conformity with the requirements covered by them. (20)In order to contribute to the objectives of the European Green Deal and the Circular Economy Action Plan, and to ensure safe construction products, safety being one of the goals to be pursued in the legislation based on Article 114 of the Treaty on the Functioning of the European Union (TFEU), inherent product requirements related to safety, functionality and protection of environment, including climate, are necessary. When setting these requirements, the Commission should take into account their potential contribution to achieving Union climate, environmental and energy efficiency objectives. These requirements do not merely relate to the performance of construction products. Contrary to its predecessor Directive 89/106/EC, Regulation (EU) No. 305/2011 does not provide for the possibility to establish such inherent product requirements. However, certain harmonised standards for construction products contain such inherent product requirements which can relate to environment, to safety or simply to the good functioning of the product. These standards demonstrate that there is a practical need for such requirements on safety, the environment or simply the functioning of products. Article 114 TFEU as the legal base of this Regulation also imposes the pursuit of a high level of protection of the environment, health and human safety. Thus, this Regulation should (re-)introduce or validate inherent product requirements. Whilst these requirements need to be laid down by the legislator, there is a need for specifying them for the more than 30 product families, each with several categories. Hence, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission to specify the requirements for the respective construction product family or category. (21)Manufacturing and distribution of construction products becomes ever more complex, leading to the emergence of new specialised operators, such as fulfilment service providers. For reasons of clarity, certain generic obligations, including on cooperation with authorities, should be applicable to all those involved in the supply chain, the manufacturing, the distribution, own-brand-labelling, the repackaging or secondary trade, installation, de-installation for re-use or remanufacturing, and the remanufacturing itself. Moreover, suppliers should be obliged to cooperate with market surveillance authorities for purposes of environmental sustainability assessment. For those reasons and to avoid repetition of obligations, the term ‘economic operator’ should be defined widely, encompassing all those actors so that basic generic obligations can in one strike be established for all of them. (22)In order to foster harmonised practices amongst Member States even where a consensus about these practices could not be found, the Commission should be empowered to adopt, with regard to a limited range of issues, implementing acts on the implementation of this Regulation. The respective empowerments concern the definitions, the obligations and rights of economic operators and the obligations and rights of notified bodies. (23)In order to improve the legal certainty and to mitigate the fragmentation of the EU market for construction products due to the existence of national requirements and marks, it is necessary to clearly define the area regulated at the EU level, the so-called ‘harmonised zone’, as opposed to the elements remaining within the remit of Member States’ national regulatory sphere. (24)At the same time, in order to strike a balance between mitigating the fragmentation of the market and the legitimate interests of Member States to regulate construction works, it is necessary to provide for a mechanism to better integrate Member States’ needs into the development of harmonised technical specifications. For the same reason, a mechanism allowing Member State to set, based on imperative grounds of health, safety or environmental protection, additional requirements for construction products should be established. (25)A circular economy, the key element of the Circular Economy Action Plan, can be promoted by mandatory deposit-refund systems and the obligation to take back unused products. Member States should therefore be allowed to take such measures. (26)In order to enhance legal clarity and reduce the administrative burden for the economic operators, it is necessary to avoid that construction products are subject to multiple assessments regarding the same aspect of health, safety or protection of the environment, including climate, under different Union legislation. This was confirmed by the REFIT platform recommending that the Commission gives priority to addressing the problems of overlapping and repetitive requirements. The Commission should thus be able to determine the conditions under which the fulfilment of obligations under other Union law also fulfils certain obligations of this Regulation, where otherwise the same aspect of health, safety or protection of the environment, including climate, would be assessed in parallel under this Regulation and other Union law. (27)Moreover, in order to avoid diverging practices of Member States and economic operators, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to determine whether certain construction products fall within the definition of construction product. (28)In particular, in the case of energy-related products included in ecodesign working plans which are also construction products and for intermediary products, with the exception of cement, priority for the setting of sustainability requirements will be given to the [ESPR]. This should be the case for instance for heaters, boilers, heat pumps, water and space heating appliances, fans, cooling and ventilating systems and photovoltaic products, excluding building-integrated photovoltaic panels. This Regulation may still intervene in a complementary manner where needed, mainly in relation to safety aspects also taking account of other Union legislation on products such as on gas appliances, low voltage, and machinery. For other products, in order to avoid unnecessary burden for economic operators, the need may arise in future to determine the conditions under which the fulfilment of obligations under other Union law also fulfils certain obligations under this Regulation. The power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to determine such conditions. (29)In order to create an incentive for compliance, the manufacturer of construction products should be liable for incorrect declarations of performance and conformity. (30)The increased use of re-manufactured products is part of a shift towards a more circular economy and a reduction of the environmental and carbon footprint of construction products. Moreover, the market of re-manufacturing is currently not very developed and requirements for remanufactured products vary widely amongst Member States. Therefore and to respect the subsidiarity principle, Member States should have the possibility to exempt re-manufactured products from the obligation to draw up a declaration of performance. Such exemption should however not be possible for products that are not suitable for remanufacturing or where interests of other Member States are at stake. (31)To enhance access to easily available and comprehensive information on construction products, thereby contributing to their safety, functionality and sustainability, it should be ensured that the declaration of performance provides all information necessary for users and authorities. In view of its utility for users, manufacturers should be able to include into that declaration additional information, provided that the declarations of performance remain uniform and easily readable and that they are not abused as advertisement.

(32)To render the reuse and remanufacturing of construction and the use of surplus construction products nonetheless possible at large scale, an alleviated procedure for drawing up the declaration of performance should be set out for those construction products. In the case of surplus construction products, where alteration by use is excluded, the alleviated procedure should be limited to those cases where the initial manufacturer refuses to take responsibility for the surplus construction product, as it is always preferable that construction products remain under responsibility of the initial, competent manufacturer where they have not been altered. (33)In order to reduce the burden for economic operators and in particular manufacturers, economic operators issuing declarations of performance and declarations of conformity should provide those declarations by electronic means, be authorised to provide those declarations by permalink to an unamendable document or to include in those declarations permalinks to unamendable documents. (34)In order for the manufacturers to demonstrate that the construction products benefitting from the free movement of goods fulfil relevant Union requirements, it is necessary to require a declaration of conformity complementing the declaration of performance, thus also bringing the regulatory system for construction products closer to Regulation (EC) No 765/2008. However, in order to minimise the potential administrative burden, the declaration of conformity and the declaration of performance should be combined and provided by electronic means. The administrative burden on SMEs should be further minimised through targeted simplification provisions, including on the use of appropriate technical documentation replacing type testing, permitting micro-enterprises to use the more lenient verification system and reducing the requirements for custom-made non-series products installed in an identified single construction work. The Member States should also have the possibility to exempt micro-enterprises which do not trade cross-border from the obligation to draw a declaration of performance. (35)In order to reach alignment with other product legislation and subject to the general principles of Regulation (EC) No 765/2008, the CE marking should be affixed to construction products for which the manufacturer has drawn up a declaration of performance or conformity. The manufacturer thereby takes the responsibility for the conformity of the product with the declared performance and applicable product requirements. (36)To ensure safety, functionality and sustainability of construction products, and by extension of construction works, all economic operators intervening in the supply and distribution chain should take appropriate measures to ensure that they place or make available on the market only construction products which are in compliance with the binding Union requirements. In order to improve the legal clarity, it is necessary to set explicitly the obligations of economic operators. (37)It is necessary for manufacturers of construction products to determine the product type in a precise and unequivocal manner in order to ensure a precise basis for assessing the compliance of such product with Union requirements. At the same time, in order to avoid circumvention of the applicable requirements, manufacturers should be prohibited from creating ever new product types where the products in question are, in view of the crucial characteristics, identical. (38)To avoid misleading claims, any claims made by manufacturers of construction products should either be based on an assessment method contained in harmonised technical specifications or, where no such assessment method exists, on methods representing the best available techniques, where no such assessment method provided by a harmonised technical specification exists. (39)Technical documentation about construction products, drawn by the manufacturer, facilitates the verification of those products by authorities and notified bodies against the Union requirements. To enhance access to comprehensive information, that technical documentation should include an assessment of the environmental sustainability of the construction product. (40)To create transparency for users of construction products and to avoid inappropriate use of those products, construction products and their intended use should be precisely identified by the manufacturer. For the same reason, the manufacturer should make clear whether the construction products are intended for professional use only, or also for use by consumers. To ensure that construction products can be traced back, manufacturers should be indicated on the product or, where this is not possible e.g. due to the product’s size or surface, on its packaging or, where that is not possible either, in a document accompanying it. (41)To ensure that requirements of this Regulation are fulfilled, manufacturers should actively search, store and evaluate information and take appropriate measures where non-conformity or under-performance has been confirmed or where there is a risk. (42)To optimise the pursuit of the goals of the European Green Deal and of the Circular Economy Action Plan, the manufacturers should be obliged to reach a fair level of environmental sustainability, both for their products and their manufacturing. This obligation requires trade-off-decisions between different environmental aspects and between environmental and safety aspects, whilst both environmental and safety aspects can relate to the product as such or to the construction works. To give manufacturers certainty about how to make these trade-off decisions, this Regulation should set out clear trade-off rules. (43)With the goals of ensuring sustainability and durability of construction products, manufacturers should ensure that products can be used for a very long time. Such long use requires adequate design, use of reliable parts, reparability of products, availability of information on repair and access to replacement parts. (44) In view of enhancing the circularity of construction products, in line with the goals of the Circular Economy Action Plan, manufacturers should favour re-use, remanufacturing and recycling of their products. The (preparation for) re-use, remanufacturing and recycling require certain design, namely by facilitating the separation of components and materials at the later stage of recycling and avoiding mixed, blended or intricate materials. As the usual instructions for use will not necessarily reach the economic operators in charge of (preparation for) re-use, remanufacturing and recycling, the necessary information in this regard should be made available in product databases or systems and on the manufacturer’s websites, in addition to the instructions for use. (45)To deliver safe, functional and environmentally sustainable construction products, it is necessary to establish comprehensive sustainability and safety obligations for manufacturers. Given the importance of these obligations and achieving the right balance between the functionality, safety and sustainability, the Commission should be empowered to determine the conditions by delegated acts under which, for a specific product family or category, these obligations are fulfilled or presumed to be fulfilled. (46)Some construction products become waste though they were never used. To avoid this waste of resources, manufacturers should accept to regain, directly or via their importers and distributors, ownership of products that, after delivery onto a construction site or to the user, have not been used and are in a state equivalent to the one in which they were placed on the market. (47)In order to be able to make informed choices, users of construction products should be sufficiently well informed about the environmental performances of products, about their conformity with environmental requirements and of the degree of fulfilment of manufacturer’s environmental obligations in this regard. Therefore, the Commission is empowered to adopt delegated acts to establish specific labelling requirements which might include the easily understandable traffic light labelling. (48)Certain manufacturer’s obligations, such as assessment of environmental sustainability or giving preference to recyclable materials, can hardly be fulfilled in case of used, remanufactured or surplus products. Economic operators enabling reuse or undertaking remanufacturing should thus be exempted from these obligations, the more so as the reuse and remanufacturing are beneficial to the environment. (49)The authorised representatives are often the only reachable persons in case of imported products whilst manufacturers often attribute to them very limited tasks and do not provide them with all the necessary information to effectively represent the manufacturers. Hence, the role and responsibilities of authorised representatives should be clarified and strengthened. (50)An economic operator who modifies a product in such a way that its performance or safety might be affected should be subject to the obligations of manufacturers, to ensure the verification whether performance or safety of the product are still the same. However, this obligation should not be imposed on an economic operator who repackages products to make them available in another Member State, as otherwise secondary trade and thus free circulation of products would be hampered and repackaging in principle should not affect performance nor safety of the construction product. Still, and with the aim to preserve the performance and safety of products, the economic operator undertaking the repackaging should be responsible for the correct execution of these operations to ensure that the product is not damaged and that the users are still correctly informed in the language set out by the Member State where the products are made available. (51)In order to increase compliance of manufacturers with the obligations under this Regulation and to contribute to addressing the identified shortcomings and improve the market surveillance, service providers, online market places and brokers should be empowered and requested to verify certain easily verifiable characteristics of products and their manufacturers, such as determination of product type and drawing up a comprehensive technical documentation, and should actively contribute to ensuring that only compliant products reach the users.

(52)In order to avoid that 3D-printing is used to circumvent the obligations under this Regulation, 3D-printing service providers should have certain information obligations. (53)The safe use of used and re-manufactured products often depends on precise information on their first use. Economic operator de-installing used products for re-use or remanufacturing should therefore take protocols on the place, conditions and presumed length of use of the de-installed product. (54)The performance and safety of products also depend on the components used and on the services provided by calibrators or other service providers for their design and manufacturing. For these reasons, certain obligations should be established for suppliers of components and service providers involved in the manufacturing of products. Where a non-compliance or risk might have been caused by a supplied component or service of a certain economic operator, the supplier or service provider should inform thereof his other clients who have received the same component or service, so that non-compliances and risks can be effectively tackled for other products too. (55)Certain items used for construction have multiple potential purposes. Their manufacturers should have the freedom to decide whether these items are intended for construction or not, also in order to avoid that they have to undergo performance and conformity assessment where not necessary. However, if they decide that a certain item is not intended for construction whilst it could be used for it (“pseudo product”), the manufacturers and other economic operators should ensure that it is not used in construction works. Otherwise some of the items would end up in construction whilst not fulfilling the requirements of this Regulation. (56)For the same reason, where, however, manufacturers of items which can, by nature, be used for construction and for other purposes (“double use products”), do not explicitly exclude the use for construction, they should fulfil the obligations under this Regulation for all the items of the respective type. (57)To clarify the applicability of this Regulation to online and other distance sales, it should be defined under which conditions a certain product is deemed to be offered to clients in the Union. As online trade has a higher likelihood of non-compliance, Member States should make a special effort and designate a single centralised market surveillance authority for detecting distance sales offers targeting clients on their territory, so that the responsible market surveillance authorities can take appropriate measures. As the detection of such offers requires the knowledge of research specialists or dedicated artificial intelligence software, the detection task should be centralised and entrusted to a single market surveillance authority. (58)Digital technologies, which provide a significant potential for reducing administrative burden and costs for economic operators and public authorities, while also fostering innovative and new business opportunities and models, are evolving at rapid pace. The uptake of digital technologies will also contribute significantly towards achieving the objectives of the Renovation Wave, including energy efficiency, life-cycle assessments and monitoring and of the building stock. Accordingly, the Commission should be empowered to seize further opportunities of digitisation by implementing acts. (59)As harmonised standards developed for construction products (hereafter: construction products standards) are mostly mandatory, to create legal certainty, these standards should not only be in line with the relevant standardisation requests and with this Regulation, but also with the general principles of Union law. (60)In order to ensure a timely citation of references of construction products standards in the Official Journal of the European Union, the European Commission should be empowered to limit in scope or overrule deficient standards for purposes of legal effects under this Regulation by delegating acts instead of refusing to cite their references in the Official Journal. (61)To ensure the coherence of the system, this Regulation should build on the horizontal legal framework for standardisation. Hence, Regulation (EU) No 1025/2012 should also apply to the extent possible to standards rendered mandatory in accordance with this Regulation. Regulation (EU) No 1025/2012 is thus to provide, among others, for a procedure for objections to harmonised construction products standards where those standards do not entirely satisfy the requirements set out in the relevant standardisation request or other requirements of this Regulation. (62)As they are not acts of general applicability but the first step of a two steps administrative procedure leading to the CE marking, European assessment documents should not qualify as harmonised technical specifications. However, basic principles of the elaboration of harmonised standards, such as transparency for competitors, can and should also apply to European assessment documents. Moreover, the European assessment documents should be referred to in performance and conformity assessment procedures in the same way as harmonised standards. Hence and to avoid lengthy repetition of provisions, the principal rules on harmonised standards should also apply to European assessment documents. To create transparency for competitors, European assessment documents should be made publicly available and the references of all European assessment documents should be published in the Official Journal. (63)Currently, the increasing number of hardly distinguishable European assessment documents which often have little added value when compared to others or existing harmonised standards, risks to slow down their publication. In order to deal with this risk in a cost-effective way, certain principles for the development and adoption of European assessment documents should be established or be made more concrete. Moreover, the control by the Commission should be enhanced. (64)The requirements applicable to designating authorities of Technical Assessment Bodies (TABs) should not fall behind those applicable to notifying authorities given the similarities between their respective roles. For the same reason, TABs should have the same degree of independence and control of decision-making as notified bodies. (65)In order to respond to a noteworthy percentage of notifications which were based on incomplete or erroneous assessments, in particular where legal bodies without own in-house technical competence were notified, it is necessary to strengthen the resources capacity of notifying authorities, namely by setting up minimum requirements; to make requirements for notified bodies more precise, namely with regard to their independence, delegation to other legal entities and own ability to perform; to require adequate qualified staffing of notified bodies and to verify the adequacy of the staffing, for which the tool of a qualification matrix has proven to be most efficient; to ensure and verify that the notified body is effectively in control of staffing, attribution of external experts, procedures, criteria and decision making, and not a subcontractor, subsidiary or another company belonging to the same family of companies; and to enlarge the documentation to be provided by bodies when applying for designation as notified body so as to provide a deeper and comparatively fairer basis for decision to notifying authorities. (66)To counter a common deficient practice of accreditation bodies, it is necessary to ensure that accreditation bodies take as a basis for accreditation this Regulation and not the often deviating standards. It also important to ensure that the accreditation bodies assess the ability of the applicant body and not of a group of companies, as it is the applicant body itself that must be in control of future certification. (67)To reach a level playing field and to avoid legal uncertainty, the obligations of notified bodies should be more clearly defined and rendered explicit, and this both for their assessment and verification activities and the related aspects. (68)In order to avoid involvement between notified bodies’ staff and the manufacturers, notified bodies should ensure rotation between the personnel carrying out different conformity assessment tasks. (69)Authorities of Member States might have questions that only a certain notified body can answer. Notified bodies should thus respond also to the questions authorities of other Member States may have. (70)To enable all authorities an easier identification of non-compliances of notified bodies, manufacturers and products, and to ensure a level playing field, notified bodies should be empowered, and where the non-compliance can be clearly demonstrated even obliged to, proactively forward information on non-compliances to relevant market surveillance authorities or notifying authorities. Notified bodies should however not trespass the information obligation by investigating other operators than their own clients or peers. (71)In view of creating a level playing field for notified bodies and manufacturers, the coordination amongst notified bodies should be enhanced. As only half of the current notified bodies participate on their own initiative in the activities of the already currently existing notified body coordination group, participation thereto should thus become mandatory.

(72)The attempts of establishing simplified procedures for small and medium-sized enterprises in Regulation (EU) No 305/2011 and thus reducing the burden and costs on SMEs and microenterprises have not been entirely effective and have often remained misunderstood or not used due to the lack of awareness or the lack of clarity regarding their application. By addressing the identified shortcomings while building on the previously established rules, it is necessary to clarify and facilitate their application and hence achieve the objective of supporting SMEs while ensuring performance, safety and environmental sustainability of construction products. (73)The recognition of test results obtained by another manufacturer, provided for in Article 36(1)(b) of Regulation (EU) No 305/2011, should be generalised, in order to generally reduce the burden of economic operators and namely manufacturers. Such recognition mechanism is particularly needed to avoid multiple assessment of environmental sustainability of raw materials, interim products and final products. (74)To ensure legal certainty in case of safety or performance problems, such recognition should only be permitted where both the two involved economic operators and the two involved notified bodies commit to cooperate and where the economic operator obtaining certification is in technical command of the product. (75)The evaluation of Regulation (EU) No 305/2011 showed that market surveillance activities carried out at national level, widely vary in quality and effectiveness. In addition to measures set out in this Regulation in favour of better market surveillance, the compliance of economic operators, bodies and products with this Regulation should be facilitated by also involving third parties such as by the possibility of any natural or legal person to submit information on possible non-compliances through a complaint portal. (76)To address the identified shortcomings with regards to the market surveillance under Regulation (EU) No. 305/2011, this Regulation should contain more empowerments for Member States authorities and for the Commission that should enable authorities to act under all potential problematic circumstances. (77)Market surveillance practice has proved that when evaluating products, at a certain point in time, there is a risk of non-compliance but no non-compliance incidence whereas, at a later point in time, the opposite is to be stated. Moreover, there are situations where there is a non-compliance other than a formal one that does not trigger a risk. For these reasons, Member States should be empowered to act in all cases of suspected non-compliance or risk, whilst the definition of ‘product presenting a risk’ has to be extended to include risk for the environment. It is necessary to offer Member States enough procedural flexibility to distinguish between high and low priority cases of non-compliance, whilst all Member States should also be informed about less important cases. (78)To ensure effective enforcement of the requirements and to strengthen market surveillance in Member States, as well as to ensure alignment with the Ecodesign for Sustainable Products Regulation, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to lay down a minimum number of checks to be performed by the market surveillance authorities on specific product group or family or in relation to specific requirements and to establish minimum resources requirements. (79)In addition, to strengthen the on average weak capacities of market surveillance authorities in terms of market surveillance and to further align with the Ecodesign for Sustainable Products Regulation, it is necessary provide more detailed administrative coordination support and to provide them with the right to retrieve costs of inspections and testing from economic operators. (80)To create an incentive for increasing the capacities of market surveillance authorities in terms of market surveillance and to reach alignment with the Ecodesign for Sustainable Products Regulation, Member States should report on their market surveillance activities regarding products covered by this Regulation, including regarding the penalties imposed. (81)To better serve economic operators, product contact points for construction should become more effective and therefore should obtain more resources. In order to facilitate the work of economic operators, the tasks of product contact points for construction should be fine-tuned and extended so as to include information on product related provisions of this Regulation and on acts adopted in accordance with it. (82)It is necessary to establish an appropriate, efficient and cost-effective coordination mechanism to ensure a consistent application of the obligations and requirements set and to strengthen the overall system, also taking into consideration the fact that new interpretative questions may arise in relation to safety and sustainability of products and construction works. As diverging decisions create an uneven playing field, contribute to rendering the legal framework more complex, create barriers to the free movement of the internal market and additional administrative burden and costs on economic operators, such diverging decisions should be prevented by that coordination mechanism. (83)In particular, a European information system should therefore be established to collect interpretative questions, to find appropriate common solutions and to improve the sharing of information in this regard. To facilitate information sharing, such a system should rely on national systems. These national systems should also identify cases of uneven application of this Regulation, to ensure that diverging practices do not become a common practice and permanent. (84)The centralised registration of product information increases transparency to the benefit of safety of products and the protection of the environment and human health while also reducing administrative burden and costs for economic operators. Accordingly, the power to adopt acts in accordance with Article 291 TFEU should be delegated to the Commission to establish a centralised Union construction products database or system. At this point in time it is not possible to assess the advantages and disadvantages of possible solutions, the Commission should thus be empowered to pursue any of these paths, as appropriate. (85)To improve their level of competence, harmonise their decision making and create a level playing field for economic operators, trainings should be organised for market surveillance authorities, product contact points for cConstruction, designating authorities, TABs, notifying authorities, and notified bodies. The same goals should also be pursued by exchanges of staff between the market surveillance authorities, notifying authorities and notified bodies of two or more Member States. (86)Member States do not always have the technical competence to fulfil all obligations incumbent on them in accordance with Union legislation cumulatively for all product sectors. They therefore obtain informal support, from other bigger Member States. Since such support is unavoidable in some cases and advisable in others, this Regulation should set out the basic rules for such support, namely to clarify responsibilities. Moreover, Member States are challenged by the increasing technical complexity of products and the legislation applicable with regard to all aspects and product sectors cumulatively, which indicates a potential for better results by virtue of specialisation and work-sharing amongst Member States. This Regulation should therefore both reflect the particular situation of the Member States and allow exploring the potential added value of specialisation and work-sharing amongst any Member States. (87)Business on construction products becomes slowly but steadily more and more international. Hence, situations arise where non-compliances of economic operators based outside the Union need to be countered as well. As third countries hardly are ready to support the enforcement of Union law on their territory where the Union does not in return provide for the possibility to assist them, some empowerments for international cooperation should be provided for in this Regulation. (88)A certain number of third countries applies Union product legislation or at least recognises certificates issued in accordance with it, be it on the basis of international agreements or unilaterally, both being in the interest of the Union. In order to give these third countries an incentive to continue this practice and other third countries to do the same, certain additional possibilities should be provided to third countries applying Union product legislation or recognising certificates issued in accordance with it. For this reason, it should be possible to support these particularly cooperative third countries by allowing them to participate in certain trainings and to participate in the EU construction products database or system, to the information system for harmonised decision-making and to the information exchange amongst authorities. Moreover, for the same reason, it should be possible to inform these particularly cooperative third countries about non-compliant or risky products. (89)In order to incentivise the use of sustainable construction products whilst avoiding market distortions and to remain in line with the Ecodesign for Sustainable Products Regulation, incentives for the use of sustainable construction products provided by Member States should target the most sustainable products and be embedded in an exchange of information amongst Member States. (90)In order to enhance the use of sustainable construction products whilst avoiding market distortions and to reach alignment with the Ecodesign for Sustainable Products Regulation, Member States’ public procurement practice should target the most sustainable amongst the compliant products. Requirements applicable to public procurement contracts set out by implementing acts should be established according to objective, transparent and non-discriminatory criteria. (91)Public procurement amounts to 14% of the Union’s GDP. To contribute to the objective of reaching climate neutrality, improving energy and resource efficiency and transitioning to a circular economy that protects public health and biodiversity, contracting authorities and entities should, where appropriate, be required to align their procurement with specific green public procurement criteria or targets, to be set out in the delegated acts adopted pursuant to this Regulation. The criteria or targets set by delegated acts for specific product groups, should be complied with not only when directly procuring those products in public supply contracts but also in public works or public services contracts where those products will be used for activities constituting the subject matter of those contracts. Compared to a voluntary approach, mandatory criteria or targets will ensure that the leverage of public spending to boost demand for better performing products is maximised. The criteria should be transparent, objective and non-discriminatory.

(92)In order to take into account technical progress and knowledge of new scientific evidence, ensure proper functioning of the internal market, facilitate access to the information and ensure homogeneous implementation of rules, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of establishing and amending product specific technical provisions and requirements; defining the applicable assessment and verification systems; determining the conditions under which obligations under other Union law fulfil certain obligations of this Regulation; amending the declaration of performance and declaration of conformity model; establishing additional obligations to manufacturers; revising and supplementing procedural rules for the development of European assessment documents; establishing minimum requirements to market surveillance authorities; setting up