COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  concerning the  position of the Council on the adoption of a Regulation of the European Parliament and of the Council  laying down harmonisation conditions for the marketing of construction products
Date: 2010-09-20
Institutions: European Commission
Subjects: approximation of laws, construction policy, free movement of goods, marketing

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EUROPEAN COMMISSION 

Brussels, 20.9.2010 
COM(2010) 500 final 

2008/0098 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Regulation of the European Parliament and 
of the Council  
laying down harmonisation conditions for the marketing of construction products 

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2008/0098 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Regulation of the European Parliament and 
of the Council  
laying down harmonisation conditions for the marketing of construction products 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council (document COM(2008)311 final – A6-0068/2009-
2008/0098 (COD): 

23 May 2008. 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

25 February 2009. 

Date of the opinion of the European Parliament, first reading: 

24 April 2009. 

Date of transmission of the amended proposal: 

20 October 2009. 

Date of adoption of the position of the Council: 

[13 September 2010]. 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

Simplification  of  the  Council  Directive  89/106/EEC,  the  Construction  Products  Directive, 
referred  to  hereafter  as  the  CPD,  is  one  of  the  initiatives  under  the  Commission’s 
simplification rolling programme as part of its Better Regulation: Simplification Strategy. The 
CPD is aimed at ensuring the free circulation and use of construction products in the Internal 
Market. Since construction products are intermediate products intended to be incorporated in 
the construction works, the concept of safety applies to those products to the extent that they 
contribute to the safety of the works. In this way the CPD achieves its objective by defining 
harmonized means to express the performance of the product in an accurate and reliable way, 
rather than by harmonizing the safety requirements of the product, as it is the case in the New 
Approach directives.  

The  objective  of  the  Commission  proposal  is  to  replace  the  CPD  by  a  Regulation,  with  the 
aim  of  better  defining  the  objectives  of  this  Community  legislation,  as  well  as  making  its 
implementation  easier  and  more  efficient.  As  part  of  the  Better  Regulation  initiative,  the 
proposal  clarifies  of  the  basic  concepts  and  the  use  of  CE  marking;  introduces  simplified 
procedures,  so  as  to  reduce  the  costs  incurred  by  enterprises,  in  particular  SMEs;  and 
increases  the  credibility  of  the  whole  system  by  imposing  new  and  stricter  designation 

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criteria to bodies involved in the assessment and the verification of constancy of performance 
of construction products. 

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

3.1.  General comments 

The Commission welcomes the completion of the 1st reading in the Council, with the position 
now  adopted.  It  is  important  for  the  construction  sector  that  the  main  objectives  of  the 
Commission proposal, i.e. simplification, clarification and increased credibility, have been in 
general upheld by the Council, whilst still respecting the principles of Better Regulation (see 
Commission declaration in point 5). 

In  particular,  the  Commission  appreciates  the  support  given  by  the  Council  to  its  proposal 
concerning the measures aimed at simplification, which remains a key issue for the European 
SMEs active in this sector. Simplified procedures as outlined in Articles 36 – 38, especially 
Article 37 applicable for micro-enterprises manufacturing construction products, will turn out 
highly  pertinent  for  the  competitiveness  of  the  European  industry.  Moreover,  also  the 
wholesale  reforms  introduced  to  the  EOTA  structure  and  to  the  issuing  of  ETAs  will 
contribute effectively to increased simplification, transparency and confidence to the system.  

Clarification of general principles and contexts has also been supported by the Council: this is 
notably reflected in the clear and central role played by the Declaration of Performance (DoP) 
and  the  associated  CE  marking,  whose  meaning  is  now  unambiguous  in  this  context.  The 
same goes also for the role of harmonised standards, which now clearly has been strengthened 
by  making  them  the  only  means  available  to  assess  the  performance  of  the  essential 
characteristics of the construction products covered by them. Both the manufacturers and the 
Member  States  authorities  are  thus  obliged  to  use  this  common  technical  language  when 
assessing  and  declaring  the  performance  of  the  products,  or  respectively  when  setting  any 
regulatory  requirements  for  them.  Thirdly,  the  credibility  of  the  system  has  been  strongly 
boosted  by  the  links  to  the  contents  of  the  Internal  Market  Package  for  Goods,  both  for 
notified bodies and for market surveillance. 

3.2.  Comments on the amendments adopted by the European Parliament 

The  Council  was  only  partially  in  accordance  with  the  Commission’s  opinion  on  the 
amendments  adopted  by  the  European  Parliament  at  first  reading.  The  same  goes  also  for 
those amendments which have only partially been incorporated in the position of the Council. 

The  Council  approved  in  principle  the  main  lines  of  the  amendments  by  the  European 
Parliament  on  the  declaration  of  performance,  thus  rendering  it  obligatory  when  the 
construction  product  in  question  is  covered  by  a  harmonised  standard  or  a  ETA  has  been 
issued  for  it.  In  the  same  context,  the  new  Article  3(3)  of  the  Council  position  develops 
somewhat further the corresponding amendments by the European Parliament, delegating the 
Commission  decision-making  powers  on  determining  those  essential  characteristics  of 
construction  products  covered  by  harmonised  standard,  for  which  the  manufacturers  shall 
always declare the performance.  

The  Council  rejected  the  Parliament’s  proposal  to  include  dangerous  substances  into  the 
mandatory  contents  of  the  declaration  of  performance,  covering  this  topic  only  in  the  new 

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recital  24.  This  position  is  in  line  with  the  Commission’s  views,  as  expressed  also  in  the 
amended proposal. 

The  Council  also  rejected  the  Parliament’s  proposal,  supported  and  re-worded  by  the 
Commission,  to  include  in  Article  10(4)  a  clause  ensuring  the  independence  of  Product 
Contact Points for Construction from bodies involved in the procedure for obtaining the CE 
marking.  The  argument  of  Regulation  764/2008/EC  not  containing  such  a  provision  cannot 
been seen as tenable, since that Regulation only deals with products outside the harmonised 
area and thus not bearing the CE marking. 

3.3.  New provisions introduced by the Council and the Commission’s position 

The  Council  introduced  a  new  set  of  formulations  for  Articles  3  –  6,  more  specifically  by 
including a provision in Article 3(3) delegating the Commission decision-making powers on 
determining the essential characteristics always to be declared, by providing in Article 5 with 
a set of derogations from the general principle of mandatory declaration of performance, and 
by  elaborating  further  in  Article  6  on  the  minimum  contents  of  this  declaration,  notably 
ensuring  that  the  performance  of  at  least  one  essential  characteristic  would  always  be 
declared, by levels or classes.  

The  Commission  regrets  that  Articles  3  –  6,  as  adopted  by  the  Council,  could  impose 
unnecessary  administrative  and  testing  burdens  on  enterprises,  and  thus  not  remain  in  line 
with the principles of Better Regulation. 

Moreover,  the  Commission  notes  that,  in  spite  of  the  efforts  to  streamline  the  final  Council 
position, certain incoherencies have remained, some of them with a potential for also political 
repercussions.  In  order  to  avoid  future  difficulties  in  the  application  of  the  Regulation,  all 
these provisions should necessarily be adjusted in the final stages of the legislative procedure. 
As a striking example, reference can be made to simplified procedures, where neither recital 
34, nor the definition of STD in Article 2(15),are corresponding to the contents of Articles 36 
- 38. 

The  Council  has  further  developed  also  the  demands  on  information  to  accompany  the  CE 
marking, by adding several items to Article 9(2). This amendment goes to the other direction 
than the corresponding one by the European Parliament. It would also appear worth checking 
how these demands match together with the possibilities (now delegated to the Commission) 
in  Article  7(3)  for  digital  supply  of  the  contents  of  the  declaration  of  performance,  which 
according to the new Article 9(2) now would in any case partially also have to be provided 
alongside the product. 

In  addition,  the  Council  has  completed  in  its  position  the  alignment  to  the  Internal  Market 
Package  for  Goods  for  notified  bodies  (Chapter  VII)  and  introduced  the  necessary 
amendments  to  replace  the  initial  provisions  on  Comitology  with  the  new  set  of  rules  (new 
Articles 60 – 64, implementing Articles 290 and 291 of the Treaty on the Functioning of the 
European  Union  to  this  context.  The  position  adopted  by  the  Council  also  contains  a  new 
structure  for  the  provisions  concerning  the  development  and  adoption  of  European 
Assessment  Documents  (EADs)  (Articles  19  – 24  and  Annex  II)  and  the  functioning  of  the 
organisation of TABs, as well as new provisions on the financing by the European Union of 
the said organisation (Articles 31 – 35).  

The Commission endorses the principles expressed by these changes. 

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4. 

CONCLUSION 

Although it considers that the position of the Council does not meet some of the essential aims 
of  its  initial/amended  proposal,  the  Commission  perceives  that  the  only  way  of  allowing  the 
procedure to continue is to refrain from opposing it. 

The Council acted by a qualified majority. 

In conclusion, the Commission  supports, in a spirit of compromise, the position adopted by 
the Council, subject to the statements mentioned in the following point.  

5. 

STATEMENTS BY THE COMMISSION 

The Commission made two statements (annexed) which apply to the respect of the principles 
of Better Regulation and to market surveillance. 

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ANNEX 

Commission Declaration in Council on better regulation 

The Commission supports, in a spirit of compromise, the Political agreement of the Council 
on  the  Commission  proposal  for  a  Regulation  of  the  European  Parliament  and  the  Council 
laying down harmonised conditions for the marketing of construction products. 

Nevertheless, the Commission recalls that this proposal is part of its simplification strategy1 
and therefore regrets that the text finally agreed by the Council, in particular Articles 3 to 7, 
could impose unnecessary administrative and testing burdens on enterprises as assessed in the 
impact  assessment  accompanying  the  original  proposal2.  Therefore  it  would  not  be  in  line 
with  the  principles  of  Better  Regulation  and  the  broad  objective  to  reduce  administrative 
burden arising from EU legislation, endorsed by the Spring European Council of March 2007. 

The  Commission  intends  to  monitor  in  particular  this  aspect  of  the  Regulation  and  will 
include  its  conclusions  in  the  report  it  will  present  to  European  Parliament  and  the  Council 
five years after the entry into force of this Regulation.  

Commission Declaration in Council on market surveillance 

The Commission considers that in the light of recital 37 and in line with the spirit of Article 
.6(3) and of Article 8(3), the authorities of a Member State may, if necessary, take appropriate 
measures for a product which is placed, or made available, in their market, if the declaration 
of  performance  does  not  contain  the  performance  related  to  the  essential  characteristics  for 
which there are requirements for that product and its declared intended use or uses, or if the 
declared performances do not correspond with those requirements, in the same Member State, 
or parts of its territory.  

The  measures  need  to  be  proportionate  to  the  risks  involved  and  should  not  lead  to  the 
fragmentation of the internal market. 

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European  Commission  (2005):COM  (2005)  535  final:  Communication  of  the  Commission  to  the 
European Parliament, The Council, the European Economic and Social Committee and the Committee 
of the Regions – Implementing the Community Lisbon Programme: A Strategy for Simplification of the 
Regulatory Environment, Brussels. 
COM (2008) 311, SEC (2008) 1900 and SEC (2009) 1901 of 23 May 2008.  

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