COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document 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
Date: 2022-03-30
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: EC conformity marking, European standard, building materials, green economy, harmonisation of standards, market approval, market supervision, quality standard, single market, technical standard

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 30.3.2022  SWD(2022) 87 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document 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 {COM(2022) 144 final} - {SEC(2022) 167 final} - {SWD(2022) 88 final} - {SWD(2022) 89 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

The proposal is based on Article 114 of the Treaty on the Functioning of the European Union, 
because the main purpose of the Regulation is to remove obstacles to the circulation of construction 
products within the European single market. 

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

It is a shared competence, as it mainly deals with the functioning of the European single market.  

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article 3 TFEU1. It is the specific legal basis which determines whether the proposal falls under the 
subsidiarity control mechanism. Article 4 TFEU2 sets out the areas where competence is shared 
between the Union and the Member States. Article 6 TFEU3 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

Throughout  the  preparation  of  the  revision  of  the  Construction  Products  Regulation,  the  following 
groups  have  been 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 citizens and other NGOs. 
Consultation activities included a general online survey, a company survey, a public consultation and 
several  meetings  with  Member  States  (including  in  the  Council  Working  Party  on  Technical 
Harmonisation (Construction Products)):  

- 

The  general  survey  targeted  selected  experts  and  aimed  to  identify  how  to  address  the 
various general issues identified during the evaluation of the Regulation, to collect input to 
be used to further refine the draft options. 

-  Dedicated  meetings  with  national  experts  on  the  review  of  the  Regulation  took  place  in 
March  and  September  2020,  with  the  goal  of  discussing  the  process  and  the  refined 
indicative  options  paper,  as  well  as  to  collect  Member  States’  views  on:  scope  and 
relationship  with  other  EU  law,  national  law  and  information  needs,  Annex  I  (basic 
requirements for construction works), environmental requirements. 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
3 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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- 

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The purpose of the company survey was to assess how the refined indicative policy options 
for  the  Regulation  were  expected  to  impact  firms  in  the  European  construction  products 
sector.  The  survey  targeted  companies  relevant  to  the  construction  products  market  and 
therefore the questionnaire was sent out to economic operators in the sector.  

The public consultation was accessible to all types of respondents, including businesses and 
manufacturers.  Overall,  the  consultation  activities  showed  that  all  stakeholder  groups 
strongly rejected a repeal of the Regulation (policy option E). In most stakeholder groups, the 
largest  groups  were  in  favour  of  maintaining  the  current  Regulation  (i.e.  baseline  policy 
option A). A substantial part of the stakeholder groups preferred a revision of the Regulation 
(i.e. options B, C or D).  

The explanatory memorandum and the impact assessment contain a section on conformity with the 
principle of subsidiarity. 

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

The  explanatory  memorandum  and  the  impact  assessment  contain  respective  sections  in  which 
compliance  with  the  principle  of  subsidiarity  is  assessed.  Without  EU-wide  regulation,  the 
deficiencies of the current  Regulation  cannot  be remedied by  national  laws,  as the Member States 
have no competence to revise the Regulation framework, nor to correct its failures through national 
measures.  

Currently, in the absence of EU action to set uniform rules, the environmental protection objectives 
and climate performance of construction products are being addressed in different ways in the EU, 
leading  to  differing  requirements  for  businesses.  Uniform  EU  action  is  therefore  justified  and 
necessary.  

Only at EU level can conditions to ensure the free circulation of construction products be set while 
ensuring a level playing field and pursuing sustainability goals. An envisaged role for the EU should be 
to  promote  the  development  of  a  competitive  single  market  in  construction  products  by  removing 
any  unnecessary  disparities 
including 
environmental performance, while allowing Member States to reflect their specific requirements in 
national building codes.  

in  the  regulation  of  these  products’  performance, 

Therefore, coordinated EU action is the most efficient  way to effectively reinforce  and supplement 
national and local action, contributing in particular to construction products’ sustainability regarding 
climate performance and environmental protection. 

As for the added value of regulatory action at EU level, this helps improve the overall functioning of 
the  single  market  for  construction  products,  increases  legal  certainty  and  predictability,  makes the 
conditions  for  competition  in  the  construction  industry  fairer  and  addresses  the  aspects  of 
environmental performance and circularity of construction products, which can only be tackled at EU 
level. 

2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

There  is  a  necessity  for  EU  action,  as  the  Member  States  cannot  address  the  objectives  of  the 
proposal without  creating barriers  for  the  single  market.  The  administrative  burden  for  companies 
and public administration would be much higher with action in 27 different countries than with the 

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proposed revision of the Regulation.  

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

The  proposal  aim  to  repair  and  improve  the  functioning  of  the  single  market  for  construction 
products and so is expected to have a significant positive impact on trade within the EU.  

It  aims  to  align  information  on  performance  of  construction  products  as  regards  essential 
characteristics,  and  to  introduce,  where  needed,  product  requirements,  to  improve  the  safety  and 
sustainability of construction products. In the absence of such provisions, diverging environmental or 
safety assessment methods applied at national level risk creating additional barriers to trade. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty5 or significantly damage the interests of other Member States? 

National action targeting the identified problems under the current Regulation would create barriers 
to trade and therefore undermine the functioning of the single market for construction products.  

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

The Member States could reach the objectives of protecting safety and the environment by acting at 
national  level.  However,  this  could  not  be  pursued  in  a  uniform  manner  without  the  revised 
Regulation  being  in  place.  The  discrepancy  among  national  legislations  would  result  in  increased 
fragmentation in the single market.  

Moreover,  individual  Member  States  would  not  be  able  to  establish  common  environmental 
assessment methods that would not risk distorting the single market for construction products. 

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

Only one of the four problems (Problem 2: Implementation challenges at national level) identified in 
the  impact  assessment  varies  across  national  levels.  Despite  improved  cooperation  among  market 
surveillance  authorities,  it  became  apparent  during  the  implementation  of  the  Regulation  that 
market  surveillance  activities  were  broadly  seen  as  ineffective  and  widely  varying  in  quality  and 
effectiveness from one Member State to another. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

The problems identified in the evaluation of the Regulation and presented in the impact assessment 
concern the whole EU.  

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

While  the  proposal  is  expected  to  bring  positive  impacts  in  terms  of  technical  harmonisation  of 
construction  products,  the  objective  of  improving  the  effectiveness  of  market  surveillance  would 
require  certain measures  to  be  put  in  place  which will  be  dependent  on  Member  States’  ability  to 

5 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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enact them, e.g. a minimum number of checks to be performed. 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

The findings of the supporting study for the impact assessment of the Regulation review show that a 
little less than half of the public authorities prefer maintaining the current Regulation (i.e. baseline 
policy option A).  

Moreover, the repeal option is strongly rejected. Looking across the 13 elements considered in the 
study, the preference of public authorities for revision is particularly strong only for the following 
elements: 

o  Market surveillance and enforcement – 77% of public authorities in the public consultation 

prefer a revision (variant B); 

o  Scope of EU alignment – 83% of public authorities in the public consultation prefer one of the 

revision options; 

o  CE marking and Declaration of Performance – 41% of public authorities in the public 

consultation prefer a revision (variant B, C2, C3 or D); 

o  Environmental aspects – 47% of public authorities in the public consultation prefer a revision. 

2.4 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

There is a clear EU added value of the proposed actions. Member States alone can reach the same 
level  of  safety  and  protection of  the  environment,  but  not  without  creating manifold obstacles  for 
the functioning of the single market.  

Fewer obstacles for the single market will increase the average quantity of products of a certain type 
and  thus  reduce  costs,  both  to  the  benefit  of  competitiveness  of  manufacturers  and  to  European 
citizens. 

(a)  Are there clear benefits from EU level action?  

Harmonised  (uniform)  standards  and  other  harmonised  technical  specifications  for  construction 
products allow products to be sold in all Member States.  

They must be developed only once and, when cited in the EU’s Official Journal, create the legal effect 
that allows manufacturers to draw up the Declaration of Performance and affix the CE marking.  

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

The  common  technical  language  describing  the  characteristics  of  construction  products  creates 
market  transparency,  reduces  national  obstacles  to  trade  and  increases  the  average  quantity  of 
products of a certain type, thus reducing costs for all stakeholders. The proposal aims to restore and 
promote the smooth functioning of the single market for construction products.  

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

The  Regulation  mainly  sets  uniform  (harmonised)  rules  on  how  to  express  the  performance  of 
construction  products  in  relation  to  their  essential  characteristics  (e.g.  reaction  to  fire,  thermal 

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conductivity  or  sound  insulation).  In  contrast,  Member  States  are  responsible  for  the  safety, 
environmental and energy requirements applicable to buildings and civil engineering works.  

Based on their needs (e.g.  regarding  flood or earthquake  risks) they can demand that construction 
products used in these Member States fulfil certain performance criteria. Performance is assessed on 
the  basis  of  the  Regulation’s  standardised  rules.  Thus  only  one  assessment  is  needed  for  all  the 
Member States, even though the requirements differ. 

This  legal  setting  protects  both  the  single  market  for  construction  products  and  Member  States’ 
regulatory needs for construction works.  

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

The proposal for a revised Regulation creates a uniform scheme for assessing construction products. 
Market surveillance activities by one Member State have positive external effects on other Member 
States. 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

One of the objectives of the Regulation revision is to clarify the rules. According to feedback received 
during the implementation and the consultations, these were lacking clarity.  

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

The  explanatory  memorandum  and  the  impact  assessment  discuss  proportionality  aspects.  The 
proposal  is  consistent  with  the  principle  of  proportionality  because  it  does  not  go  beyond  what  is 
necessary  for  achieving  a  well-functioning  single  market  for  construction  products  and 
is 
proportionate for achieving the intended objectives.  

The proposal aims to address the shortcomings identified in the current Regulation and the needs of 
the European Green Deal and the Circular Economy action plan in relation to construction products. 
The core principles of the Regulation (like the common technical language and mandatory standards 
developed  by  the  European  Standardisation  Organisations)  will  be  maintained.  Some  of  the  new 
features, such as product requirements or Commission  acts containing technical specifications, will 
be only applied when needed, for specific products.   

The proposal addresses all identified problems in the most effective and efficient way, proposing a 
revised Regulation that is future proof by offering a comprehensive regulatory framework, including 
fall-back  solutions  and  new  regulatory  tools  that  can  be  activated  if  there  is  a  need  for  a  specific 
product category or group, based on a detailed analysis.  

Given the extreme variety of construction products, only this approach can ensure that the goals of 
the initiative are effectively pursued without creating unnecessary burdens for economic operators. 

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

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The  proposal  is  based  on  the  preferred  option  identified  in  the  impact  assessment  report  and  is 
therefore the most appropriate approach to achieve the objectives. It aims to address the identified 
shortcomings  in  the  current  Regulation  and  the  needs  of  the  European  Green  Deal  and  Circular 
Economy action plan in relation to construction products.  

The revised text  takes the form of a regulation to minimise differences in interpretation  and avoid 
costs and delays linked to transposition. The benefits of this initiative offset the costs incurred. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

The proposal is repealing and revising an existing regulation. It aims to repair and improve the single 
market  for  construction  products.  Only  if  taken  at  EU  level  can  this  action  create  uniform  product 
safety and allow the free circulation of construction products within the EU. 

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

The instrument proposed for revising the Construction Products Regulation is a regulation, repealing 
and revising the existing one.  

It  is  seen  as  the  most  effective  and  efficient  solution,  as  it  minimises  the  potential  differences  in 
interpretation and avoids costs and delays linked to transposition. 

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument or approach?) 

The  Regulation  regulates  only  the  marketing  of  construction  products.  The  proposal  improves  the 
Member  States’  rights  to  step  in  where  construction  products  could  endanger  the  safety  of 
construction works, an area falling under the responsibility of the Member States.  

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

The assessment of the economic impacts demonstrated several cost savings.  

The administrative burden, regulatory charges and compliance costs for manufacturers will fall. Also, 
for manufacturers  covered by  the  simplification  requirements, costs  savings are  expected due  to  a 
decrease in the level of ambiguity and the extended scope of the simplification.  

Better market surveillance will require investment by public administrations. From this all economic 
actors  and  public  administration  responsible  for  the  safety  of  buildings  will  benefit.  There  will  be 
fairer competition on the construction products market. 

(e)  While respecting the Union law, have special circumstances applying in individual Member 

States been taken into account? 

Member States can decide to facilitate the reuse of construction products in certain cases  and can 
exempt their own micro-companies from the obligations of the Regulation.  

A  Member  State  can  seek  administrative  support  from  another  Member  State  when  performing 

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market surveillance tasks.  

Member  States  may  exempt  from  the  obligations  under  this  Regulation  products  placed  on  the 
market or directly installed in the territory of their outermost regions. 

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