REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the exercise of the power to adopt delegated acts conferred on the Commission pursuant to Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 on the harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC
Date: 2015-09-16
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: construction policy, delegated legislation, launching of a product, powers of the institutions (EU), quality label, secondary legislation, technical regulations

EUROPEAN 
COMMISSION 

Brussels, 16.9.2015  
COM(2015) 449 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

on the exercise of the power to adopt delegated acts conferred on the Commission 
pursuant to Regulation (EU) No 305/2011 of the European Parliament and of the 
Council of 9 March 2011 on the harmonised conditions for the marketing of 
construction products and repealing Council Directive 89/106/EEC 

EN 

   EN 

 
 
 
 
  
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 

THE COUNCIL 

on the exercise of the power to adopt delegated acts conferred on the Commission 
pursuant to Regulation (EU) No 305/2011 of the European Parliament and of the 
Council of 9 March 2011 on the harmonised conditions for the marketing of 
construction products and repealing Council Directive 89/106/EEC 

1.  

INTRODUCTION 

Regulation  (EU)  No  305/2011  of  the  European  Parliament  and  of  the  Council  on  the 
harmonised  conditions  for  the  marketing  of  construction  products  and  repealing  Council 
Directive  89/106/EEC1  lays  down  conditions  for  the  marketing  of  construction  products  by 
establishing  harmonised  rules  on  declaring  the  performance  of  construction  products  in 
relation to their essential characteristics and on CE marking of them.  

For the purposes of achieving the objectives of Regulation (EU) No 305/2011, in particular 
removing and avoiding restrictions on making construction products available on the market, 
Regulation (EU) No 305/2011 confers to the Commission the power to adopt delegated acts 
in a number of matters listed in its Article 60, and subject to the conditions laid down in its 
Articles 61, 62 and 63. 

Article 61 of Regulation (EU) No 305/2011 describes the temporary scope of the delegation 
as well as the obligations to notify the adopted delegated acts and to report on the exercise of 
delegated powers to the European Parliament and to the Council. 

Article  62  lays  down  the  conditions  for  the  revocation  of  the  delegation  and  Article  63  the 
rules governing the objections to delegated acts by the European Parliament or the Council. 

Regulation (EU) No 305/2011 is fully applicable since 1st of July 2013. The Commission has 
exercised since then, on several occasions, the delegation conferred on it by Article 60. 

2.  

LEGAL BASIS 

This report is required under Article 61(1) of Regulation (EU) No 305/2011. Pursuant to this 
provision,  the  power  to  adopt  delegated  acts  concerning  the  matters  listed  in  Article  60  is 
conferred  on  the  Commission  for  a  period  of  five  years  from  24  April  2011  and  the 
Commission is required to prepare a report in respect of the delegated power at the latest six 
months before the end of the five-year period. 

1 OJ L 88, 4 April 2011, p. 5. 

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The  delegated  powers  shall  be  automatically  extended  for  five-year  periods,  unless  the 
European  Parliament  or  the  Council  revoke  them  in  accordance  with  Article  62  of  
Regulation (EU) No 305/2011. 

Article  60  of  Regulation  (EU)  No  305/2011  empowers  the  Commission  to  adopt  delegated 
acts concerning the following matters: 

a)  the  determination,  where  appropriate,  of  the  essential  characteristics  or  threshold 
levels  within  specific  families  of  construction  products,  in  relation  to  which,  in 
accordance  with  Articles  3  to  6,  the  manufacturer  shall  declare,  in  relation  to  their 
intended  use,  by  levels  or  classes,  or  in  a  description,  the  performance  of  the 
manufacturer’s product when it is placed on the market; 

b)  the  conditions  on  which  a  declaration  of  performance  may  be  electronically 
processed, in order to make it available on a web site in accordance with Article 7; 

c)  the  amendment  of  the  period  for  which  the  manufacturer  shall  keep  the  technical 
documentation and the declaration of performance after the construction product has 
been placed on the market, in accordance with Article 11, based on the expected life 
or the part played by the construction product in the construction works; 

d)  the  amendment  of  Annex  II  and  where  necessary  the  adoption  of  supplementary 
procedural rules in accordance with Article 19(3) in order to ensure compliance with 
the principles in Article 20, or the application in practice of the procedures set out in 
Article 21; 

e)  the  adaptation  of  Annex  III,  table  1  of  Annex  IV,  and  Annex  V  in  response  to 

technical progress; 

f) 

the  establishment  and  adaptation  of  classes  of  performance  in  response  to  technical 
progress in accordance with Article 27(1); 

g)  the  conditions  on  which  a  construction  product  shall  be  deemed  to  satisfy  a  certain 
level or class of performance without testing or without further testing in accordance 
with  Article  27(5),  provided  that  the  fulfilment  of  the  basic  requirements  for 
construction works is not thereby jeopardised; 

h)  the  adaptation,  establishment  and  revision  of  the  systems  of  assessment  and 
verification of constancy of performance in accordance with Article 28, relating to a 
given  product,  a  given  product  family  or  a  given  essential  characteristic,  and  in 
accordance with: 

i)  the  importance  of  the  part  played  by  the  product  or  those  essential 
characteristics with respect to the basic requirements for construction works; 

ii) the nature of the product; 

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iii)  the  effect  of  the  variability  of  the  essential  characteristics  of  the 
construction product during the expected life of the product; 

iv) the susceptibility to defects in the product’s manufacture. 

As  soon  as  the  Commission  adopts  a  delegated  act,  it  shall  notify  it  simultaneously  to  the 
European Parliament and to the Council (Article 61(2). 

The power to adopt delegated acts is conferred on the Commission subject to the conditions 
laid down in Articles 62 (revocation of the delegation) and 63 (objection to delegated acts) 
(Article 61(3). 

3. 

EXERCISE OF THE DELEGATION 

3.1. Consultation prior to adoption 

In  the  spirit  of  openness  and  transparency,  the  Commission  always  consulted  experts 
nominated  by  Member  States  and  relevant  stakeholders,  via  regular  dedicated  meetings  of 
experts and written consultations, during the preparation of delegated acts under Regulation 
(EU) No 305/2011. Before these consultations, all Member States were invited to nominate 
experts to participate in them. The European Parliament was also invited to participate in all 
these consultation activities. The documents relevant to these consultations were transmitted 
simultaneously  to  the  European  Parliament  and  to  the  Council,  as  foreseen  in  the  Common 
Understanding  on  delegated  acts.  The  observations  presented  in  these  consultations  were 
taken into consideration when preparing the final versions of delegated acts. 

Furthermore,  the  Commission  informed  Member  States  and  industry  representatives  of  the 
progress made with the draft delegated acts at different phases of their preparation, in order to 
ensure the inclusion of the whole construction constituency in these processes and to secure 
the  commitment  of  all  pertinent  stakeholders  to  their  outcome,  thus  paving  the  way  for 
comprehensive support for the upcoming delegated acts.   

3.2.     Delegated acts in force 

Six  Delegated  Regulations  are  currently  in  force,  after  having  been  adopted  by  the 
Commission,  based  on  the  delegation  conferred  on  it  by  Article  60  of  Regulation  (EU)  No 
305/2011, and passed sucessfully the period of objection of the co-legislators. 

1.  The  first  delegated  act  adopted  was  Commission  Delegated  Regulation  (EU)  No 
157/20142  of  30  October  2013  on  the  conditions  for  making  a  declaration  of 
performance on construction products available on a website. This Regulation, which 
was  adopted  under  Articles  7(3)  and  60(b)  of  Regulation  (EU)  No  305/2011,  was 
essential to permit the use of new information technologies in the context of declaring 

2 OJ L 52, 21 February 2014, p.1. 

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the  performance  of  construction  products,  and  thus  reduced  costs  incurred  by  their 
manufacturers and the construction sector as a whole. 

2.  Secondly,  the  Commission  adopted  two  delegated  acts  under  Article  60(e)  of 
Regulation  (EU)  No  305/2011,  aimed  at  amending  Annexes  III  and  V  to  the 
Regulation: 

•  Commission  Delegated  Regulation  (EU)  No  574/20143  of  21  February  2014 
amending  Annex  III  to  Regulation  (EU)  No  305/2011  of  the  European 
Parliament  and  of  the  Council  on  the  model  to  be  used  for  drawing  up  a 
declaration  of  performance  on  construction  products.  This  Regulation  was 
adopted in order to respond to technological progress, to allow the flexibility 
required by different kinds of construction products and manufacturers as well 
as to simplify the declaration of performance. 

•  Commission  Delegated  Regulation  (EU)  No  568/20144  of  18  February  2014 
amending  Annex  V  to  Regulation  (EU)  No  305/2011  of  the  European 
Parliament  and  of  the  Council  as  regards  the  assessment  and  verification  of 
constancy  of  performance  of  construction  products.  This  Regulation  was 
adopted  in  order  to  respond  to  technical  progress,  legal  certainty  and 
consistency of descriptions and terms used in Annex V to Regulation (EU) No 
305/2011. 

3.  Finally, the Commission adopted three delegated acts under Articles 27(5) and 60(g) 
of Regulation (EU) No 305/2011, requested by industry, in order to allow the use of 
simplified  procedures,  more  precisely  the  classification  without  testing  (CWT)  of 
certain products, as follows: 

•  Commission  Delegated  Regulation  (EU)  No  1291/20145  of  16  July  2014  on 
the conditions for classification, without testing, of wood-based panels under 
EN 13986 and solid wood panelling and cladding under EN 14915 with regard 
to their fire protection ability, when used for wall and ceiling covering. 

•  Commission  Delegated  Regulation  (EU)  No  1292/20146  of  17  July  2014  on 
the  conditions  for  classification,  without  testing,  of  certain  uncoated  wood 
floorings under EN 14342 with regard to their reaction to fire. 

3 OJ L 159, 28 May 2014, p.41. 

4 OJ L 157, 27 May 2014, p.76. 

5 OJ L 349, 5 December 2014, p.25. 

6 OJ L 349, 5 December 2014, p.27. 

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•  Commission  Delegated  Regulation  (EU)  No  1293/20147  of  17  July  2014  on 
the  conditions  for  classification,  without  testing,  of  metal  lath  and  beads  for 
internal plastering covered by the harmonised standard EN 13658-1, metal lath 
and  beads  for  external  rendering  covered  by  the  harmonised  standard  EN 
13658-2  and  metal  beads  and  feature  profiles  covered  by  the  harmonised 
standard EN 14353, with regard to their reaction to fire. 

3.3. Delegated acts under progress 

The daily implementation of the CPR clearly demonstrates the need to adopt different kinds 
of delegated acts, which respond to stakeholder requests to address technical and regulatory 
developments  concerning  certain  construction  products,  often  in  relation  to  some  of  their 
essential  characteristics.  These  delegated  acts  are  necessary  to  achieve  the  objectives  of 
Regulation  (EU)  No  305/2011,  in  particular  removing  and  avoiding  restrictions  on  making 
construction  products  available  on  the  market,  as  well  as  alleviating  the  administrative  and 
economic burdens of the construction sector as a whole. 

Accordingly,  on  the  date  of  adoption  of  this  Report,  the  Commission  had  also  initiated  the 
process  for  preparation,  adoption,  or  publication  into  the  Official  Journal  of  the  EU  for  the 
following delegated acts:  

1. 

Regulation on the classification of reaction to fire performance8 

Decision  on  the  assessment  and  verification  of  constancy  of  performance 

2. 
(AVCP) systems for ventilation ducts and pipes9 

3. 

4. 

Decision on the AVCP systems for geosynthetic products10  

Decision on the AVCP systems for wastewater engineering products11 

Regulation  on  the  conditions  for  CWT  for  glued  laminated  timber  and 

6. 
structural finger jointed solid timber products12 

7 OJ L 349, 5 December 2014, p.29. 

8 Adopted on 1 July 2015. The right of objecton of the European Parliamentg and of the Council is running until 
1st Octiber 2015. 

9 Adopted on 8 July 2015. The right of objecton of the European Parliamentg and of the Council is running until 
8 Octiber 2015. 

10 Adopted on 1 July 2015. The right of objecton of the European Parliamentg and of the Council is running 
until 1st Octiber 2015. 

11 Adopted on 1 July 2015. The right of objecton of the European Parliamentg and of the Council is running 
until 1st Octiber 2015. 

12 Currently under internal consultation at the Commisison. 

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Regulation  on  the  conditions  for  CWT  for  external  renders,  internal  plasters 

7. 
and rendering and plastering mortars13 

In the future, other delegated acts of similat nature will continue to be requested, due to the 
rapid  technical  progress  and  evolving  needs  of  the  construction  industry.  Additional 
delegated  acts  could  also  be  identified  as  needed  in  the  upcoming  Report  on  the 
implementation of Regulation (EU) No 305/2011, requested under its Article 67(2). 

3.4. Objection to delegated acts 

According  to  Article  63  of  Regulation  (EU)  No  305/2011,  the  European  Parliament  or  the 
Council  may  object  to  a  delegated  act  within  a  period  of  three  months  from  the  date  of 
notification,  extendable  by  another  three  months.  If  either  the  European  Parliament  or  the 
Council objects to a delegated act within this period, it shall not enter into force. 

Neither  the  the  European  Parliament  nor  the  Council  objected  to  any  of  the  delegated  acts 
mentioned under sections 3.2.14 above. 

Following the notification of the adopted delegated acts15 listed under section 3.2. above, the 
Commission was requested  by  the  European Parliament or the Council to answer questions 
concerning  the  appropriate  understanding  of  the  contents  of  these  delegated  acts.  The 
Commission  answered  timely  to  these  questions  and  decided  to  publish  this  material  on  its 
website together with the corresponding delegated acts16, for the perusal of all stakeholders. 

Some Member States questioned the scope allowed to the Commission on Articles 60(e) and 
60(f)  of  Regulation  (EU)  No  305/2011  for  adopting  delegated  acts.  In  particular,  these 
provisions  limit  the  delegation  only  "in  response  to  technical  progress".  However,  this 
concept was considered  wide enough to cover proposed technical adaptations to Annexes III 
and V to Regulation (EU) No 305/2011, and therefore was not an obtacle for the entry info 
force of the delegated acts amending these Annexes. 

The Council used the possibility to extend the objection period concerning the first delegated 
act  adopted  under  Regulation  (EU)  No  305/2011,  in  order  to  discuss  in  detail  the  answers 
provided by the Commission to the questions raised concerning this Delegated Regulation on 
the conditions for making a declaration of performance on construction products available on 
a website. This extension showed that Member States desired to be informed further of draft 
delegated  acts,  their  rationale  and  interpretation,  before  their  adoption.  This  desire  was 

13 Currently under internal consultation at the Commisison. 

14 The period of objection for the delegated acts mentioned under section 3.3. above has not been initiated or 
expired yet. 

15 as prescribed under Article 61(2) of Regulation (EU) No 305/2011. 

16 See Frequently Asked Questions (FAQs) for some delegated acts available at 
http://ec.europa.eu/growth/sectors/construction/product-regulation/index_en.htm 

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addressed  by  the  Commission  via  increased  consultation  and  information  provided  at 
different phases of their preparation. 

4.  

CONCLUSION 

The  Commission  considers  that  it  has  exercised  its  delegated  powers  within  the  remit 
conferred to it by Regulation (EU) No 305/2011. 

The delegation of power conferred by Article 60 of Regulation (EU) No 305/2011 should be 
extended in accordance with Article 61(3) of Regulation (EU) No 305/2011, due to the rapid 
technical  progress  and  evolving  needs  of  the  construction  industry,  which  require  the 
adoption  of  EU-wide  acts  concerning  the  variety  of  matters  listed  under  Article  60  of 
Regulation (EU) No 305/2011. 

The Commission invites the European Parliament and the Council to take note of this Report. 

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