Episode 1:

Parliament has already passed it and the Council is expected to wave it through in the fall: the new Construction Products Regulation is just around the corner. After years of discussion, it is now clear what this regulation will look like, which aims to solve major issues ranging from sustainability to standardization, is based on the current regulation and yet wants to make everything better. Even if it is not yet clear how many of the changes will affect practice, one thing is certain: holders of ETAs should contact their TAB office to ensure a smooth transition in good time.

Text Nikolaus Fuchs

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New edition of the EU Construction Products Regulation

Parliament has already passed it and the Council is expected to wave it through in the fall: the new Construction Products Regulation is just around the corner. After years of discussion, it is now clear what this regulation will look like, which aims to solve major issues ranging from sustainability to standardization, is based on the current regulation and yet wants to make everything better. Even if it is not yet clear how many of the changes will affect practice, one thing is certain: holders of ETAs should contact their TAB office to ensure a smooth transition in good time.

Construction Products Directive

The first step towards the harmonization of construction products for the EU market was the Construction Products Directive 89/106/EEC [1]. This made an EU-wide statement on the usability of a construction product through the declaration of conformity as the basis for CE marking and replaced national product approvals. However, because construction law and thus the use of construction products remained the responsibility of the Member States , the requirements for construction products for the same intended use differ from one Member State to another. As this is a fundamental problem in the harmonization of construction products, a solution was sought – in vain: Considerations to also harmonize construction law across the EU might seem unworldly to us today or were simply too far ahead of their time. The interpretation of “fundamental fitness for use” of CE-marked construction products left open what was to be understood by this. In addition, unlike an EU regulation, the provisions of the directive first had to be transposed into national law by the member states, which led to a different legal situation in all member states. Today, harmonization legislation is therefore generally EU regulations with direct legal effect, which – apart from administrative regulations such as the responsibility of the authorities – do not require transposition into national law, or even prohibit it.

Construction Products Regulation 305/2011 (EU)

It was decided to replace the Construction Products Directive with a uniform EU regulation for construction products that would resolve all inconsistencies. On July 1, 2013, the current Construction Products Regulation [2], abbreviated to CPR, came into force with some fanfare and, with the pure declaration of performance as a conformity criterion, completed the necessary paradigm shift compared to the Construction Products Directive [1]: It is not the fitness for use of the product that is now the subject of the CE marking, but merely the comparability of the bindingly declared performance in relation to the essential characteristics. The decision on fitness for a particular use in the Member State is made by the addressee of the declaration of performance, the user of the product. The harmonized product standards are limited to defining the essential characteristics and their assessment procedures. They do not contain any requirements concerning the product performance or other characteristics of the product, except on the basis of a legal act of the Union.

This new, purist Declaration of Performance (DoP) as the successor to the vague Declaration of Conformity caused quite a stir among manufacturers and retailers when the regulation came into force. Due to the lack of requirements for use, some saw a return to national approvals and labeling and the administrative burden seemed high. The entry into force without a transitional period, as is usual for standards, caused stress, particularly because the notification of certification bodies only took place when the regulation came into force. The fact that the declaration of performance could only be made available on the Internet around six months after entry into force caused a particularly large stir. At a meeting of the AdCo market surveillance group, a representative of manufacturers’ associations announced that the roads in Brussels would be blocked by trucks if this regulation came into force. It came into force and nothing happened, a pragmatic solution was found for handling by market surveillance. Apart from whether a blockade in the chronically congested EU capital would have been noticed at all, the excitement has died down and we can now look back on eleven years of the Construction Products Regulation in practice. The principle of performance determined according to harmonized assessment procedures and declared transparently in the declaration of performance now seems self-evident to us and a return to national assessment procedures for products that have already been harmonized seems absurd.

Revision of the Construction Products Regulation

However, there are shortcomings in the current Construction Products Regulation and the call for a revision has accompanied this regulation from the outset: Exemptions from the CE marking requirement under Article 5 routinely fail because there must be no legal requirements for the performance of that construction product in the Member State. And this knock-out criterion obscures the view of another ambiguity, namely how an individual construction product is defined. The harmonization of product standards came to a complete standstill due to divergent interpretations of the regulation, which went reasonably well until major innovations had to be included in the standards. This is exactly the case now: the seventh basic requirement of sustainable use of natural resources remained a heading in the Construction Products Regulation for ten years, but must now become operational, particularly in order to achieve climate targets and sustainability. This requires, among other things, new movement in the creation of standards, which was initiated by the Commission through the so-called “acquis process” and will be placed on a solid legal basis with the new Construction Products Regulation [3]. Market surveillance under the Construction Products Regulation has also been repeatedly criticized. Whether partially exaggerated or not, Articles 52 and 56 of the old Regulation do not quite match the provisions of the Market Surveillance Regulation [4] and provision via the Internet is not yet sufficiently taken into account. In addition, there are a whole series of inaccuracies, loopholes and ambiguities that will be remedied in the new, more comprehensive and more powerful regulation. And last but not least, the process for creating European Technical Assessments (ETAs) and their basis, the European Assessment Documents (EADs), will also be completely overhauled.

A lot has been planned. The fact that the development process took years and that the regulation has become significantly more extensive should come as no surprise to anyone. It contains 96 articles instead of the previous 68, 116 recitals (previously 58) and 64 definitions (previously 28). Based on the current Construction Products Regulation, there are numerous changes. However, the core of the old regulation with regard to CE marking and the declaration of performance remains in place for a transitional period of fifteen years in accordance with Article 94 and the reference to these parts of the old regulation is deemed to be a reference to the new one. This interlocking of the old and new regulations means that existing declarations of performance and CE markings can continue to be used as long as the product is not affected by the new content of the new regulation. This eases the transition, which is another lesson learned from the past. The most important aim of the new regulation is to implement Basic Requirement 7, the sustainable use of natural resources, as part of the European Green Deal and the EU’s climate targets. The necessary tools and a complete legal basis have now been created to ensure that the tragedy of the failure to implement Basic Requirement 7 of the old regulation is not repeated due to a lack of mechanisms and content.

Literature and regulations
[1] BMK: Position paper on the effects of energy-saving measures on indoor air. Federal Ministry for Climate Action, Environment, Energy, Mobility, Innovation and Technology (BMK), 2023.

[2] Leusden, P.; Freymark, F.: Representation of room comfort for simple practical use. In: Health Engineer 72, No. 16, 271 – 273, 1951.

[3] Allen, J.; MacNaughton, P.; Satish, U.; et al.: Associations of cognitive function scores with carbon dioxide, ventilation, and Volatile Organic Compound Exposures in office workers: a controlled exposure study of green and conventional office environments. Environ Health Perspect 124: 805 – 812, 2016.

[4] Strøm-Tejsen, P.; Zukowska, D.; Wargocki, P.; Wyon, D-P.: The effects of bedroom air quality on sleep and next day performance. Indoor Air Vol 26, Issue 5. 679 – 686, 2016.

[5] Pettenkofer, M. von: On air exchange in residential buildings. Cotta, Munich 1858.

[6] BMK: Guideline for the assessment of indoor air. Developed by the Indoor Air Working Group of the Austrian Federal Ministry for Climate Protection, Environment, Energy, Mobility, Innovation and Technology (BMK), loose-leaf collection, from 2003.

[7] OENORM H 6039: Ventilation systems – Controlled mechanical ventilation of school, class or group rooms and rooms with a similar purpose – Requirements, dimensioning, design, operation and maintenance, February 1, 2023.

[8] BMK: Position paper on ventilation requirements in educational institutions. Federal Ministry for Climate Action, Environment, Energy, Mobility, Innovation and Technology (BMK), 2023.

[9] Tappler, P.; Mu̱oz-Czerny, U.; Hutter, H-P.; et al.: Innenraumschadstoffe durch Verbrennungsprozesse РEthanol- und Speicher̦fen. Commissioned by the BMLFUW, self-published, 2015.

[10] OIB Guidelines 3: Hygiene, Health and Environmental Protection, OIB-330.3-011/23 and Explanatory Notes thereto OIB-330.3-012/23, 2023.

[11] OIB Guidelines 6: Energy conservation and thermal insulation. OIB-330.6-026/23, 2023.

[12] Interior website of the Federal Ministry for Climate Action, Environment, Energy, Mobility, Innovation and Technology (BMK), available at https:// www.bmk.gv.at/themen/klima_umwelt/luft/innen- raum.html, checked on February 12, 2024.

[13] BMNT: Leitfaden zur Vorbeugung, Erfassung und Sanierung von Schimmelbefall in Gebäuden (“Schimmelleitfaden”), prepared by the Arbeitskreis Innenraumluft (currently BMK), Vienna, 2019, available at http://www.innenraumanalytik.at/ schimmelleitfaden.pdf, checked on February 12, 2024.

[14] ISO 16000-41: Indoor air. Part 41: Assessment and classification. August 4, 2023.