The new Construction Products Regulation is expected to come into force this year. The route to CE marking via a European Assessment Document and a European Technical Assessment will still be possible. However, the new regulation contains some important changes to the current rules.

Text Matthias Springborn

—

Introduction

Only a few years after the current Construction Products Regulation came into force, there were already considerations to either amend this regulation or issue a new one. The sometimes unsatisfactory progress made with harmonized specifications, i.e. harmonized standards and European Assessment Documents (EADs), played a key role in this. Between March 2019 and December 2022, there were no announcements of harmonized standards in the Official Journal of the European Union, and the announcement in December 2022 only contained a new version of the standard. Around 50% of harmonized standards have an issue date prior to 2008.

In contrast, the situation was and is better for the announcements of the European Assessment Documents. Announcements were made at more or less regular intervals. Nevertheless, by summer 2022 there was a backlog of over 130 EADs, some of which had been waiting for years to be published in the Official Journal. Following complaints from manufacturers to the Commission services and the European Parliament, this backlog was largely cleared by the end of 2023 as part of a joint effort by the Commission services and EOTA. The reason for these delays in the development of harmonized specifications was a ruling by the European Court of Justice in 2016, which declared such specifications (the court case concerned a specific harmonized standard) to be part of European law because rights and obligations arise based on them. If a construction product is covered by a harmonized standard, these obligations for manufacturers consist in particular of the mandatory CE marking, which then signals to all other interested parties that the information on product performance in the declaration of performance is correct. The Commission services also applied this statement to the assessment documents not affected by the court proceedings and, as a result of the ruling, felt compelled to subject both the standards and the assessment documents to a detailed formal review, for which, however, the necessary resources were not available. Compared to CEN (European Committee for Standardization), EOTA has the advantage in this context that the procedures are more flexible and that it was and is therefore possible to react more quickly to the respective Commission comments. A key argument for changes to the Construction Products Regulation was therefore to achieve improvements with regard to the development of harmonized standards.

Timeline

At the end of March 2022, the Commission presented a draft of more than 300 pages for the new Construction Products Regulation. This draft was then discussed in parallel by the European Council and the European Parliament. The result was a 4-column document1 with around 1600 pages, which formed the basis for negotiations in the so-called trilogue (negotiations between the Council and the Parliament as legislators and with the participation of the Commission as the initiator of the law). These negotiations were concluded around the turn of the year. The text was then consolidated, i.e. renumbered, particularly with regard to added or deleted articles or paragraphs.

This version was submitted to Parliament for a vote and was adopted in April 2024. However, the review of the text by the so-called language lawyers had not yet been completed at that time and there were no final translations into the official languages of the Member States2. The newly elected Parliament from June 6 to 9 is therefore responsible for the final adoption of the regulation, but this will be a formality. There will be no changes to the content, but at most the correction of linguistic or editorial errors.

At the same time, the Council must adopt the text. The regulation is then expected to be published in the last quarter of 2024, probably not before November.

The important data are then

  • the date of entry into force (20 days after publication of the regulation in the Official Journal of the EU) and
  • the date of applicability of the regulation one year later, i.e. one year and 20 days after publication.

The date of applicability is therefore expected to be in the last quarter of 2025. Many provisions of the regulation will only take effect from this date. In addition, the regulation contains separately defined transitional periods of varying lengths for some provisions.

Many regulations and processes will continue to apply. However, there are some important changes that will be briefly described below as far as the path to CE marking via EADs and ETAs is concerned.

Consequences with regard to EADs, ETAs and CE marking

Status of EADs and the CE marking
While EADs are defined as harmonized specifications in the same way as harmonized standards under the current Regulation, this will no longer be the case under the new Regulation. Nevertheless, like harmonized specifications3, they may serve – by means of an issued ETA – as the basis for drawing up a declaration of performance and conformity4 and for CE marking.

Unlike in the past, however, an issued ETA will not result in the manufacturer being obliged to draw up a declaration of performance and conformity and to affix the CE marking to the product. As EADs are no longer defined as harmonized specifications, Member States are free to provide for technical rules that deviate from EADs. ETAs that are not used by the manufacturer for CE marking do not have to be accepted by the Member States as proof of product performance.

Changes with regard to EADs

Initiating the development of an EAD
In future, it will be possible for a group of manufacturers to jointly apply for European Technical Assessments and thus initiate the development of an EAD. All manufacturers involved will then be included in the development of the EAD. In addition, the Commission can also commission the preparation of EADs.

Requirements for the development of an EAD
EADs to close gaps in harmonized standards will no longer exist. The current regulation stipulates that the absence of an essential characteristic in a harmonized standard can be the basis for the development of an EAD. This criterion has been dropped in the new regulation because a harmonized standard is always de iure complete – even if this may not always be the case de facto. In this case, however, other mechanisms are relevant and not the development of an EEAS. In future, an EEAS can only be drawn up if

  • the intended use of the product does not fall within the scope of a harmonized specification5,
  • if the product is made of a material not covered by the harmonized specification, or
  • if an evaluation procedure is not technically suitable for the product.

Characteristics to be included in EADs
The essential characteristics linked to the – in future eight6– basic requirements for construction works will continue to be agreed in principle between the EOTA and the manufacturer. However, the climate and sustainability-relevant characteristics listed in Annex II of the Regulation must also be included in the EADs. This applies to the climate-relevant characteristics from the date of applicability. This will then become mandatory for the other characteristics four years later.

Procedure and process
There is nothing significantly new with regard to the vast majority of procedural steps until shortly before the procedure is completed. However, one significant change is that an ETA may only be issued once the associated EAD has been published in the Official Journal of the EU. The Commission services have 30 working days to examine the EAD before publication. EOTA can comment on possible comments and amend the EAD accordingly or justify why an amendment has not been made. However, the subsequent step, namely the re-examination of the EAD by the Commission services, is not dealt with, which makes the timeframe at this stage completely indefinite. In this respect, there is no change compared to the current situation. However, procedures and processes between EOTA and the Commission services have been established in recent years, which provide a good basis for ensuring that there will not be another backlog of EADs waiting to be published in the Official Journal of the EU.

Once the EEAS has been accepted by the Commission services, they must publish it “without delay” in the Official Journal. EOTA is then obliged to publish the EEAS within 90 days. These 90 days had been proposed as the period for publication by the Commission services, but were then “slipped” into the paragraph concerning EOTA during the trilogue negotiations – which will not cause any problems for EOTA, as EADs are already made available for download in full text within a few days of publication in the Official Journal.

Transitional arrangements

In principle, it is clear that the new Regulation applies to those harmonized specifications and European Assessment Documents that have been drawn up and published in the Official Journal of the European Union under this new Regulation. In parallel, the harmonized standards and European Assessment Documents that have been completed and published under the current Regulation apply, subject to various transitional periods, until they have either been replaced by new standards or assessment documents or until the respective transitional period has expired.

With regard to the continued validity of the EADs published under the current Regulation and the ETAs issued on this basis, a distinction must be made between the following cases:

  • EADs published in the Official Journal of the EU under the current Regulation
    These EADs are valid for five years after the date of applicability of the new Regulation, i.e. presumably until the last quarter of 2030. During this time, they can be used for issuing ETAs under the current Regulation. The ETAs issued on the basis of such EADs are valid for ten years after the date of applicability of the new regulation, i.e. probably until the last quarter of 2035.
  • ETAs based on EAD versions designated as “superseded”
    Many EADs have been revised once or several times in the past and supplemented, mainly based on further applications from manufacturers for the issuing of a European Technical Assessment. In these cases, the older version of the EAD was designated as “superseded” when the new EAD version was published in the Official Journal of the EU. ETAs based on such superseded EAD versions remain valid for the time being. In these cases, the above-mentioned parallelism of the two systems of the current and new regulation applies. The validity ends (as in the cases after the first mirror point) ten years after the date of applicability of the new regulation, i.e. in the last quarter of 2035.
  • ETAs based on EADs that have not yet been published in the Official Journal of the EU under the current Regulation at the time of applicability of the new Regulation
    Such ETAs lose their validity on the date of applicability of the new Regulation and are then to be considered as applications for the issuance of an ETA under the new Regulation. This new issuance requires at least the inclusion of the above-mentioned climate-relevant characteristics according to Annex II of the new Regulation, for which the respective underlying EADs must first be extended7. It is therefore the aim of EOTA that as many of these EADs as possible are published under the current Regulation. The extent to which this will be possible depends on the resources within EOTA, but also within the Commission services.
  • W ETAs based on ETAGs
    Under the current regulation, it was possible to issue ETAs based on European Technical Approval Guidelines (ETAGs) that were developed under the previous Construction Products Directive. Such ETAs will lose their validity on the date of application of the new regulation, i.e. probably in the last quarter of 2025. However, almost all of the ETAGs have been converted into EADs – already published in the Official Journal of the EU – since the current regulation came into force, so that it is possible and sensible to reissue such ETAs based on the respective EADs before the date of applicability of the new regulation8.

All EADs to be issued under the new Regulation must also take into account at least the climate-relevant characteristics set out in Annex II of the new Regulation, which means that by the time the currently published EADs expire (five years after the date of applicability of the new Regulation), i.e. within a good six years, the inventory of these EADs must be supplemented accordingly. To date, around 400 EADs have been published in the Official Journal, including more than 40 replaced EAD versions or variants that no longer need to be touched (this applies to the replaced EAD versions) or that need to be integrated into a new EAD version without any revision of the content (this applies to the variants). However, further EADs will follow that are currently already scheduled for publication or are still being processed.

The TABs will also have to coordinate with manufacturers on how to deal with new applications in the near future. Of course, it is still possible to initiate a procedure based on the current legal basis under the current Regulation until the last day before the new Regulation becomes applicable. However, it will generally no longer be possible to publish the resulting EAD in the Official Journal of the EU under the current Regulation, i.e. until the date of applicability of the new Regulation, probably in the last quarter of 2025. It should be noted that the Commission services need at least three months for the internal preparation of a publication of EADs. The release of an EEAS for publication in the Official Journal of the EU would therefore have to take place by summer 2025 at the latest.

In all cases where EADs can no longer be published under the current regulation, they must meet the requirements of the new regulation so that they can then be published under this regulation. These new requirements concern the inclusion of the climate-relevant characteristics already mentioned. However, there are also other new requirements for EADs, such as the consideration of guidelines on general product information, instructions for use and manufacturer’s safety information and “guidelines to ensure the interoperability of human-readable and machine-readable formats for the declaration of performance and conformity” (quote from the German text of the regulation available in June 2024).

EOTA therefore strongly recommends that TABs carry out new procedures after the end of July 2024, taking into account the content requirements of the new Regulation, as it is unlikely that the resulting EAD will still be able to be published under the current Regulation. EOTA will focus existing resources on those procedures where this possibility is accepted. However, as there are currently no assessment procedures for the climate-relevant characteristics, placeholders would have to be used at the beginning.

Conclusion

The path to CE marking via European Assessment Documents and European Technical Assessments has proven itself and has been confirmed. Due to the newly added requirements for the content of harmonized specifications in general, the work on EADs will also become more complex in the future. EOTA is facing major challenges with regard to the transition to the new legal framework. The EOTA Secretariat, the TABs and the EOTA bodies are aware of this and have started working on concepts to ensure the smoothest possible transition.

1 The columns contain (1) the Commission proposal, (2) and (3) the amendments proposed by Parliament and the Council, (4) the outcome of the negotiations.
2 A German version has also been available since May, but this should be regarded as provisional and may still be subject to comments regarding the choice of words or editorial errors.
3 As is currently the case, harmonized specifications are defined as harmonized standards as well as specifications that are drawn up by the Commission and made binding in the form of implementing acts.
4 In addition to the declaration of performance, the new regulation also provides for proof of conformity for certain characteristics. Both can be combined in one document.
5 Attention must therefore be paid to a detailed definition of the scope of the harmonized specifications. A general description such as “for use in buildings” will not be sufficient.
6 The previous basic requirement “Hygiene, health and environmental protection” was split up with regard to the possible effects on people (construction workers, residents/users, visitors, neighbors) on the one hand and on the environment on the other.
7 As already explained, the consideration of further sustainability-relevant characteristics will become mandatory at a later stage.
8 See https://www.eota.eu/etags-archive and https://www.eota.eu/eads.