Episode 2:

CE marking, Declaration of Performance and Conformity (DoPC)

The performance of the product declared in the declaration of performance in relation to the essential characteristics is no longer repeated in the CE marking. The unique identification code of the product type and the declaration of performance number can be replaced by a permanent link or QR code. These long-requested simplifications for economic operators and authorities alone should be reason enough to welcome the new regulation. No more talk of providing the DoP in paper form. Incidentally, this will be replaced by the new Declaration of Performance and Conformity (DoPC) in accordance with Annex V. The declaration of conformity, which was abolished in the BPV, is thus making a comeback, partly in the service of the Ecodesign Regulation [5], which not only provides pure assessment methods, but also sets uniform, concrete and mandatory performance requirements for the ecological criteria throughout Europe. Conformity with these was previously declared in a separate declaration of conformity parallel to the declaration of performance and will be formally integrated cleanly into the declaration of performance extended to the DoPC under the new BPV. However, other EU regulations, such as the newly published Buildings Regulation [6], also provide input for the mandatory declaration of the environmental sustainability of products, for example the GWP (global warming potential). Environmental sustainability is expressed by the applicable essential characteristics of the life cycle modules in accordance with Article 15(2). The AVCP System 3+ in accordance with Annex IX was also created specifically for this purpose. It provides for the validation of the sustainability declared by the manufacturer by a Notified Body.

The abbreviation “NPD” in the declaration of performance is replaced by “NULL”, perhaps also to make it clear once again that no performance can be expected in this case. The batch or serial number deleted in the BPV is now also found again in the declaration of performance, with the somewhat unclear addition “where available”.

The tasks, rights and obligations of economic operators are a focus of the new Construction Products Regulation. The chapter is regrouped, expanded and coordinated with EU regulations in other sectors as well as the Product Safety Regulation [7] and the Market Surveillance Regulation [4]. In particular, online trade and manufacturers outside the Union will be taken into account. Online marketplaces and fulfillment service providers are given the obligations of economic operators in accordance with Article 28. For distributors, authorized representatives and importers, the existing obligations do not change significantly. The manufacturer obligations under Article 22 include existing tasks from other articles of the old BPV, such as the preparation of the CE marking and declaration of performance. It is noteworthy and new that the rights of manufacturers are also explicitly defined. Particular emphasis is placed on the complete contact details of all economic operators; a company logo is not sufficient. And not only in the declaration of performance and declaration of conformity, but also in the general product information, instructions for use and safety information. The content of these documents is now specified by a definition in accordance with Annex IV and contains exciting information, such as the service life of a construction product or its repair, dismantling or disassembly, which has never been addressed before. The safety information includes safe dismantling and the necessary maintenance during the service life.

A common thread running through the new CPR is the consideration of used and recycled construction products , although it is not yet really clear in what form this can work. Making the product available on the market and being allowed to install it is one thing, but responsibility for the product’s performance is just as important. It is not yet clear who will ultimately be prepared to take this on.

The process of 3D printing of buildings is also mentioned conspicuously often in the new regulation and the data sets are integrated into the product definition. Here, the regulation attempts to keep pace with new developments. Ultimately, however, it will always have to do justice to new developments with its generic procedures if it wants to be successful. And there is no reason why it should not be able to do so.

The “acquis process”: jump-start for standardization

Article 4 forms the legal basis of the so-called acquis process (pronounced “aki”), a work plan for the joint development of legally sound harmonized technical specifications for construction products under the new regulation. This includes the technical aspects and extensions necessary for the Union’s objectives in the areas of safety, environment, circular economy and climate protection.

Even though this mammoth task involving the Commission, member states, standardization and interest groups has already begun, it still requires a new regulation to become effective. And failure is not an option when it comes to overcoming years of total standstill in the promulgation of harmonized standards. It is therefore unlikely that this project will be completed quickly or that it will come to nothing. National provisions and regulations, such as the Austrian building materials lists, will have to be adapted to the new EU standards.

In addition, the Commission is empowered to adopt legal acts on, inter alia, the essential environmental characteristics and the product families listed in Annex VII and, in certain cases, to define essential characteristics and their assessment methods.

ETA/EAD procedure

The procedures for drawing up EADs and ETAs set out in Annex VI have been revised and, in purely formal terms, EADs are no longer considered “harmonized technical specifications” as they are not part of the so-called “harmonized zone”. This refers to the area of construction products subject to CE marking that is covered by harmonized performance standards or corresponding legal acts. However, other innovations will have a major impact in practice: Whereas previously an EAD was drawn up jointly by the manufacturer and the TAB body, but under confidentiality, and thus an ETA was drawn up at the same time, even before the EAD was announced, in future it will be the other way round: first an EAD will be drawn up in a transparent process that can be viewed from the outside and only after the EAD has been announced in the Official Journal can ETAs be drawn up for this EAD. This reduces the advantage of EAD creation as an incentive for manufacturers to take on this effort. A further restriction is that EADs now lose their validity after ten years and must be revised; ETAs for these EADs are then valid for a further five years. As EADs and ETAs form the basis for the DoPC and the general product and safety information, all of this must also be taken into account. For existing EADs and ETAs that have not yet been drawn up in accordance with these rules, relatively demanding deadlines for revision will apply once the new regulation comes into force.

Summary: facelift, successor model, power tuning?

There can be no question of a cosmetic revision, even if many details have been improved, such as the fact that “direct assembly” by the economic operator also requires CE marking.

The new BPV pursues ambitious goals with a combination of strategically coordinated elements that permeate the regulations and give them a significantly higher level of complexity in the new areas than the purist, almost ascetic, previous regulation ever achieved. This makes the approach of leaving the old basic regulation virtually untouched and adding the lavish additional package of sustainability extras in a modular fashion seem all the more ingenious. How this will work in practice remains to be seen. It is to be expected that special cases, combinations and variations will emerge, the answers to which cannot yet be foreseen. The concept seems well thought out and coherent, but we will see how practical it is. Manufacturers who have created an ETA or EAD at the OIB should be prepared for the fact that the new regulation will require them to take action and clarify this with the responsible department. In any case, the new Construction Products Regulation will be a challenge for everyone involved: assessment bodies and economic operators, the EU Commission and EOTA, and also for the units, product information point and market surveillance of the Austrian Institute of Construction Engineering.

Bibliography

[1] Council Directive of December 21, 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (89/106/EEC), published in OJ L 40, February 11, 1989, p. 12.

[2] Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonized conditions for the marketing of construction products and repealing Council Directive 89/106/EEC, published in OJ L 88, 4 April 2011, p. 5.

[P9_TA(2024)0188: European Parliament legislative resolution of 10 April 2024 on the proposal for a regulation of the European Parliament and of the Council laying down harmonized conditions for the marketing of construction products, amending Regulation (EU) 2019/1020 and repealing Regulation (EU) No 305/2011 (COM(2022)0144 – C9-0129/2022 – 2022/0094(COD)).

[4] Regulation (EU) 2019/1020 of the European Parliament and of the Council of June 20, 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011, published in OJ L 169, June 25, 2019, p. 1.

[5] Regulation (EU) 2024/1781 of the European Parliament and of the Council of 13 June 2024 establishing a framework for the setting of ecodesign requirements for sustainable products, amending Directive (EU) 2020/1828 and Regulation (EU) 2023/1542 and repealing Directive 2009/125/EC, published in the OJ L series of 28 June 2024.

[6] Directive (EU) 2024/1275 of the European Parliament and of the Council of April 24, 2024 on the energy performance of buildings (recast), published in OJ L of May 8, 2024, p. 1.

[7] Regulation (EU) 2023/988 of the European Parliament and of the Council of 10 May 2023 on general product safety, amending Regulation (EU) No 1025/2012 of the European Parliament and of the Council and Directive (EU) 2020/1828 of the European Parliament and of the Council and repealing Directive 2001/95/EC of the European Parliament and of the Council and Council Directive 87/357/EEC, published in OJ L 135, 23 May 2023, p. 1.