WRITTEN QUESTION E-2856/00

by Winfried Menrad (PPE-DE) to the Commission

(8 September 2000)

Subject: Consumer protection against the use of building materials liable to cause chemical contamination of houses

The marketing and use of products containing certain dangerous materials is restricted by Directive 76/769(1).

Recently I have been receiving a growing number of questions on this subject from members of my constituency. According to these informants, building materials containing, for example, formaldehyde are often used.

I therefore wish to ask the Commission:

1. Is action being taken to extend the Directive accordingly or to present a proposal for a new directive which would meet these demands?

2. To what extent can liability of the builders or vendors of houses contaminated in this way be established? Does a reversal of the burden of proof in favour of those resident in contaminated houses exist, or are there plans for European legislation along these lines?

(1) OJ L 262, 27.9.1976, p. 201.

Answer given by Mr Liikanen on behalf of the Commission

(23 October 2000)

Council Directive 76/769/EEC of 27 July 1976(1) on the marketing and use of dangerous substances and preparations already bans or restricts the use of several dangerous substances in building materials e.g. asbestos and pentachlorophenol. The Directive is continually amended to introduce new restrictions on the use of substances when a need for restrictions has been established through risk assessments and analyses of the advantages and drawbacks of such restrictions. At present there are no plans to restrict the marketing and use of formaldehyde at Community level.

Construction products (and building materials) are also covered by Council Directive 89/106/EEC of 21 December 1989(2) on construction products. This lays down essential requirements on construction works and, through interpretative documents(3), these requirements have been converted into performance characteristics on products. In the case of dangerous substances it is essential requirement No 3 that applies. This means that construction products for permanent installation in construction works shall not emit dangerous substances. The construction works must be designed and built in such a way that they will not be a threat to the hygiene or health of the occupants or neighbours.

However, in accordance with the principle of subsidiarity, the construction products directive foresees that responsibility for the safety of construction works remains within the competence of the Member States. It follows that the decision to regulate or not for any of the essential requirements of the Directive (including No 3 in relation to dangerous substances) is a matter for Member States.

Where a substance, such as formaldehyde, is not the subject of harmonisation at Community level under Directive 76/769/EEC, Member States may regulate it in relation to construction products. However, as such initiatives could give rise to different requirements, it could be necessary to act either under Directive 89/106/EEC or under Articles 28 and 30 (ex Articles 30 and 36) of the EC Treaty in order to avoid barriers to trade. The European standardisation body, CEN, is developing harmonised test methods.

The Member States regulate matters of liability for buildings (e.g. design and construction). However, liability for defective products is regulated at Community level. Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products(4), as amended by Directive 1999/34/EC of the Parliament and of the Council of 10 May 1999(5), sets common liability rules in case of damage caused to individuals by defective goods. Defective goods is defined in the Directive, which covers also construction products which are incorporated in a building.

(1) OJ L 262, 27.9.1976.

(2) OJ L 40, 11.2.1989.

(3) OJ C 62, 28.2.1994.

(4) OJ L 210, 7.8.1985.

(5) OJ L 141, 4.6.1999.