COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT REPORT [ ] 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

EN EN
EUROPEAN
COMMISSION
Brussels, 30.3.2022
SWD(2022) 88 final
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT REPORT
[…]
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) 87 final} -
{SWD(2022) 89 final}
Offentligt
KOM (2022) 0144 - SWD-dokument
Europaudvalget 2022
1
Table of Contents
1. INTRODUCTION: POLITICAL AND LEGAL CONTEXT............................................................... 1
2. PROBLEM DEFINITION .................................................................................................................... 4
2.1. What are the problems?.....................................................................................4
3. WHAT ARE THE PROBLEM DRIVERS? ....................................................................................... 12
3.1. Problem drivers ...............................................................................................12
3.2. How will the problems evolve?.......................................................................15
4. WHY SHOULD THE EU ACT? ........................................................................................................ 19
4.1. Legal basis.......................................................................................................19
4.2. Subsidiarity: Necessity of EU action...............................................................20
4.3. Subsidiarity: Added value of EU action..........................................................20
5. OBJECTIVES: WHAT IS TO BE ACHIEVED? ............................................................................... 21
6. WHAT ARE THE AVAILABLE POLICY OPTIONS? .................................................................... 22
6.1. What is the baseline from which options are assessed? ..................................23
6.2. Description of the policy options ....................................................................24
6.3. Options discarded at an early stage .................................................................39
7. WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? ........................................................... 39
7.1. Option A – baseline (no revision) ...................................................................40
7.2. Option B - Repairing the CPR.........................................................................42
7.3. Option C - Focusing the CPR..........................................................................45
7.4. Option D - Enhancing the CPR .......................................................................48
7.5. Option E – Repealing the CPR........................................................................50
8. HOW DO THE OPTIONS COMPARE?............................................................................................ 53
8.1. Comparison of the options...............................................................................53
8.2. Preferred option...............................................................................................56
9. REFIT (SIMPLIFICATION AND IMPROVED EFFICIENCY)....................................................... 56
10. HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED?.................................. 57
ANNEX 1: PROCEDURAL INFORMATION............................................................................................ 60
ANNEX 2: STAKEHOLDER CONSULTATION....................................................................................... 70
ANNEX 3: WHO IS AFFECTED AND HOW? .......................................................................................... 81
ANNEX 4: ANALYTICAL METHODS ..................................................................................................... 86
ANNEX 5: THE SME TEST – SUMMARY OF RESULTS....................................................................... 90
ANNEX 6: DESCRIPTION OF THE CPR FRAMEWORK ....................................................................... 96
ANNEX 7: THE EUROPEAN TECHNICAL ASSESSMENT (ETA) SYSTEM (THE EOTA
ROUTE)............................................................................................................................................ 101
ANNEX 8: SIMPLIFICATION PROVISIONS UNDER THE CURRENT CPR...................................... 104
2
ANNEX 9: THE ENVIRONMENTAL AND CLIMATE IMPACT OF CONSTRUCTION
PRODUCTS...................................................................................................................................... 106
ANNEX 10: ARTICULATION WITH OTHER EXISTING EU LEGISLATION AND OTHER
INITIATIVES ................................................................................................................................... 108
ANNEX 11: INTERACTION BETWEEN THE FUTURE CPR AND THE SPI...................................... 112
ANNEX 12: REFINED INDICATIVE OPTIONS PAPER, APRIL 2020................................................. 119
ANNEX 13: OPTIONS AND ELEMENTS DISCARDED ....................................................................... 156
ANNEX 14: JAMES ELLIOTT JUDGMENT (C-613/14) ........................................................................ 158
3
Glossary
Term or acronym Meaning or definition
AVCP Assessment and verification of constancy of performance
BWRs Basic requirements for construction works or Basic Work Requirements
CEN European Committee for Standardisation (Comité européen de Normalisation)
Cenelec European Committee for Electrotechnical Standardisation (Comité européen de
normalisation en électronique et en électrotechnique)
CPD Construction Products Directive (repealed)
CPR Construction Products Regulation
DoP Declaration of performance
EAD European Assessment Document
EDD Ecodesign Directive
EGD European Green Deal
ELD Energy Labelling Directive
EOTA European Organisation for Technical Assessment
EPBD Energy Performance of Buildings Directive
ETA European Technical Assessment
ETAG Guidelines for European technical approval
EU European Union
NB/NBs Notified body/Notified Bodies
NGO Non-governmental organisation
NLF New Legislative Framework, formerly New Approach
OIOO one in, one out approach
OJEU Official Journal of the European Union
PCPC Product Contact Point for Construction
REACH Regulation concerning the Registration, Evaluation, Authorisation and Restriction of
Chemicals
REFIT Regulatory fitness and performance programme
RSB Regulatory Scrutiny Board
SME Small and medium-sized enterprise
SPI Sustainable Products Initiative
TAB Technical Assessment Body
1
1. INTRODUCTION: POLITICAL AND LEGAL CONTEXT
The construction products industry encompasses around 430,000 companies with a
turnover of around 800 billion Euros and a gross value added of around 240 billion
Euros.1
It mainly serves the construction industry, which is one of the 14 industrial
ecosystems identified in the updated industrial strategy2
, with a significant contribution
to the EU economy, accounting for 1,200 billion Euros gross value added (10 % of total
value added) and 25 million people employed. Both sectors, the producers of
construction products and the construction ecosystem as principal user of the products
mainly consist of micro-enterprises.
Regulation (EU) No 305/2011 of the European Parliament and of the Council laying
down harmonised conditions for the marketing of construction products3
(the
‘Construction Products Regulation’ or CPR) was adopted in 2011 and has applied in full
since July 2013. The Regulation’s main objective, like that of the earlier Construction
Products Directive4
(‘CPD’), is to improve the functioning of the single market and the
free movement of construction products in the EU by laying down harmonised conditions
for their marketing.
Unlike most internal market legislation, the CPR does hardly set any product
requirements that construction products would be required to meet. Instead, it mainly sets
harmonised rules on how to express their performance in relation to their essential
characteristics5
(e.g. reaction to fire, thermal conductivity or sound insulation) and
provides harmonised rules on the CE marking6
of these products. Since the construction
products merely contribute to the construction works7
– these latter falling within the
remit of national competences – the Member States remain fully responsible for the
safety, environmental and energy requirements applicable to buildings and civil
engineering works.
The Commission’s July 2016 implementation report on the CPR8
identified certain
shortcomings in its implementation. The report also identified a significant number of
1
Data source: Eurostat, figures for 2018, Classification of economic activities - NACE Rev.2: C162,
C222, C231, C232, C233, C234, C235, C236, C237, C242, C251, C259.
2
Communication "Updating the 2020 New Industrial Strategy: Building a stronger Single Market for
Europe’s recovery ", COM(2021)350 final, adopted by the Commission on 5 May 2021. See also
Annual Single Market Report 2021, SWD(2021) 351.
3
Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying
down harmonised conditions for the marketing of construction products and repealing Council
Directive 89/106/EEC, OJ L 88, 4.4.2011, p. 5-43.
4
Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and
administrative provisions of the Member States relating to construction products, OJ L 40, 11.2.1989, p.
12-26.
5
‘Essential characteristics’ are set in harmonised technical specifications in relation to the basic
requirements for construction works (Basic Work Requirements or BWRs), defined in Annex I to the
CPR.
6
CE Marking of Construction Products Step by Step,
https://ec.europa.eu/docsroom/documents/12308?locale=en.
7
Construction works means buildings and civil engineering works, as defined in Article 2(3) of the CPR.
8
Report from the Commission to the European Parliament and the Council on the implementation of
Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying
2
challenges going beyond mere implementation and deserving further serious examination
and discussion, including issues linked to standardisation, market surveillance and
enforcement, and simplification provisions for micro-enterprises.
The November 2016 Clean Energy for all Europeans9
Communication mentioned the
need to unlock the construction sector’s growth and jobs potential by improving the
functioning of markets, in particular the still fragmented internal market for construction
products. The Communication also highlighted the need to reinforce the focus of the
policy on products with the highest savings potential in terms of energy and circular
economy. It referred to the consultation process that followed the 2016 implementation
report, mentioning that this could lead to a revision of the Construction Products
Regulation within the mandate of the 2014-2019 Commission.
To meet this timetable, the Commission initiated a back-to-back evaluation and impact
assessment to provide a solid basis for any possible future adaptation. The approach was
presented in the inception impact assessment10
published in June 2017. However,
considering the evidence collected through the supporting studies and public
consultation, the Commission decided to decouple the retrospective and prospective
assessments. The assessment proved to be more complicated than expected: partly due to
the complexity of the CPR itself, but also due to the high expectations expressed by the
stakeholders and Member States. These combined factors made clear that it was
necessary to establish a clear and comprehensive picture of the present situation before
identifying all of the key horizontal issues and the assessment of potential options for the
future.
Hence, the evaluation of the CPR11
was published on 24 October 201912
.
In the meantime, several new policy initiatives with direct impacts on the CPR were
adopted by the Commission. In December 2019, the European Green Deal (EGD)
Communication13
mentioned the review of the CPR as part of the efforts towards
building and renovating in an energy- and resource-efficient way.
Later in March 2020, in the Circular Economy Action Plan (CEAP)14
, the Commission
underlined the objective of addressing the sustainability performance of construction
down harmonised conditions for the marketing of construction products and repealing Council
Directive 89/106/EEC, COM/2016/0445 final, 7.7.2016.
9
Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee, the Committee of the Regions and the European Investment Bank,
Clean Energy For All Europeans, COM(2016) 860 final, 30.11.2016, Annex 1, p. 9.
10
https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2017-3070078_en.
11
Evaluation of Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing of
construction products and repealing Council Directive 89/106/EEC, SWD(2019)1770,
https://ec.europa.eu/docsroom/documents/37827.
12
The report was accompanied by a Report on the relevance of the tasks of the European Organisation for
Technical Assessment (EOTA): Report from the Commission to the European Parliament and the
Council on the outcome of the evaluation of the relevance of the tasks set out in Article 31(4) that
receive Union financing pursuant to Article 34(2) of Regulation (EU) No 305/2011COM/2019/800
final, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1571917158693&uri=COM:2019:800:FIN.
13
Communication from the Commission to the European Parliament, the European Council, the Council,
the European Economic and Social Committee and the Committee of the Regions, the European Green
Deal, COM(2019) 640, 11.12.2019, https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=COM%3A2019%3A640%3AFIN.
14
Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions, A new Circular Economy Action
3
products in the context of the revision of the CPR, including the possible introduction of
recycled content requirements for certain construction products, taking into account their
safety and functionality.
A similar concept was also included in the Renovation Wave15
, where revision of the
CPR was mentioned as one of the areas of interventions addressing the sustainability
performance of construction products. It was announced that the Commission will
consider, in the framework of the CPR revision, how sustainability criteria could support
the uptake of more sustainable construction products in construction works and foster the
uptake of the latest technologies. The Renovation Wave also recognised the need for
using low-carbon materials in order to render buildings more climate-friendly.
As announced in CEAP, a Sustainable Products Initiative (SPI)16
is currently under
preparation with the aim of making products fit for a climate-neutral, resource-efficient
and circular economy. The initiative will widen the scope of the Ecodesign Directive
(EDD) to all products and to provide for the setting of specific requirements linked to a
list of aspects set out in the CEAP. These include durability, reusability, the presence of
hazardous chemicals, energy and resource efficiency; carbon and environmental
footprints, as well as recycled content, while ensuring products’ performance and safety.
It will aim to improve products sustainability, to give access to sustainability information
along the supply chain, to incentivise more sustainable products and business models.
For construction products, SPI goals shall be mainly realised by means of the
Construction Products Regulation (CPR) also to avoid double burden. The CPR shall be
able to mirror all obligations and requirements able to be set through the SPI, but for
construction products.
By aiming to improve safety, sustainability and circularity of construction products, the
CPR would also support the objectives of the New European Bauhaus17
initiative,
namely a healthy and safe living environment as well as sustainability and circularity. As
announced in the Communication, and following the Communication on the update of
the 2020 New Industrial Strategy18
, the Commission is in the process of co-creating a
transition pathway for a green, digital and resilient construction ecosystem19
.
The Council, in its conclusions on "Circular Economy in the Construction Sector" of
28 November 2019 acknowledged the potential of circular economy in construction
activities from an environmental and economic viewpoint and urged the Commission to
undertake action to promote circularity further20
. In December 2020 the German Council
Presidency presented suggestions on the Future of the Construction Products Regulation
regarding the further development of the current CPR and regarding a revised CPR21
.
In March 2021 the European Parliament adopted an own initiative report prepared by the
Committee on Internal Market and Consumer Protection on the Implementation of the
Plan For a cleaner and more competitive Europe, COM/2020/98 final, https://eur-lex.europa.eu/legal-
content/EN/TXT/?qid=1583933814386&uri=COM:2020:98:FIN.
15
COM(2020) 662 final.
16
See Annex 11. https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12567-
Sustainable-products-initiative_en.
17
COM(2021) 573 final, COM(2021)_573_EN_ACT.pdf (europa.eu)
18
COM(2021) 350 final, communication-new-industrial-strategy.pdf (europa.eu)
19
SWD(2021) 419 final, https://ec.europa.eu/docsroom/documents/47996
20
https://www.consilium.europa.eu/media/41508/st14523-en19.pdf.
21
https://data.consilium.europa.eu/doc/document/ST-13596-2020-INIT/en/pdf.
4
Construction Products Regulation22
. The Parliament welcomed the revision of the CPR
with a view to further addressing barriers in the internal market for construction products
and contributing to the objectives of the EGD and CEAP.
2. PROBLEM DEFINITION
2.1. What are the problems?
The main objective of the Construction Products Regulation23
has been to foster a
smooth functioning of the internal market for construction products, through providing
for a common technical language, based predominantly on harmonised standards. The
CPR ensures that reliable information is available to professionals, public authorities, and
consumers, so they can compare the performance of construction products from different
manufacturers in different EU Member States. Standards provide a common basis for
testing and communicating the performance of construction products, allowing
manufacturers to prepare a single declaration of performance (DoP) for their products,
affix the CE mark and eventually put their products on the EU internal market.
The evaluation of the CPR, as well as feedback received from the Member States and
stakeholders point clearly to the underperformance of the framework, hindering the
functioning of the single market for the construction products, and so failing to achieve
the CPR’s objectives24
. This, together with the need for the construction sector to
contribute to the European Green Deal objectives of transforming towards a modern,
resource-efficient and competitive economy, are the main underlying reasons for the
Commission to consider a revision of the framework.
The framework’s underperformance is due to a number of overarching issues with regard
to the functioning of the CPR, as identified in the evaluation. The main problems are:
Problem 1: Internal market for construction products not achieved
The product performance information system under the CPR requires uniform
application in order to be efficient. Hence the crucial role of harmonised standards as
essential element of the common technical language. The use of standards in support of
the CPR is mandatory if they are cited in the Official Journal of the European Union
(OJEU). Such harmonised standards, developed by the European Standardisation
Organisations25
(ESOs), are necessary for testing and communicating the performance of
construction products. As such, harmonised standards in support of the CPR form a
common technical language that acts as a link between the performance of construction
products and the basic requirements for construction works (also called Basic Work
Requirements or BWRs) set out in Annex I of the CPR, depending on their essential
characteristics and intended use.
22
Implementation of Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing
of construction products (the Construction Products Regulation), 2020/2028(INI).
23
See Annex 6 Description of the CPR for more details.
24
See Annex 6 Description of the CPR for more details.
25
Predominantly by the European Committee for Standardisation (CEN), recognised as one of the three
European Standardisation Organisations pursuant to Regulation (EU) No 1025/2012 (Standardisation
Regulation).
5
When harmonised standards in support of the CPR are cited in the OJEU, products
covered by such standards have to be CE marked – this indicates that they have been
assessed to be in conformity with their declared performance26
. The Member States are
then obliged to allow the marketing of CE marked construction products, without
requiring any additional marks, certificates or testing27
. Up-to-date and comprehensive
harmonised standards cited in the OJEU are therefore essential for the functioning of
the internal market, as they provide the manufacturers with a single framework for
testing their products, thereby facilitating market access and creating a level-playing
field.
In fact, while at the time of the 2008 Impact Assessment, it was expected that the (then)
new CPR would lead to increased levels of competition28
, the statistical analysis could
not demonstrate any overall impact of the CPR on cross-border trade for construction
products29
.
To date, the standardisation process at the core of the CPR has been underperforming.
In the recent years, draft harmonised standards developed by the ESOs have rarely been
cited in the Official Journal (OJEU) mainly due to legal issues, such as contradiction with
the requirements of the CPR or trespassing the scope of the mandate/standardisation
request. Since early 2019, despite multiple efforts, not a single standard in support of the
CPR has been cited in the Official Journal (OJEU). The lack of citation of up-to-date
harmonised standards for construction products is considered a key factor undermining
the internal market, with outdated harmonised standards causing direct or indirect costs
for the businesses, particularly SMEs30
. This problem was frequently underlined by the
stakeholders who observed that the lengthiness of the standardisation process has serious
consequences for the realisation of the internal market31
. The process is too slow to keep
pace with the developments in the sector. The resulting standards may then not always be
market-relevant32
as well as do not fulfil the regulatory needs of Member States. Five
technical bodies, four business representatives, three public authorities, and one SME
26
European Commission (2017) Declaration of Performance (DoP) and CE marking, Available at:
https://ec.europa.eu/growth/sectors/construction/product-regulation/performance-declaration_en.
27
European Commission, CE marking of construction products step by step. Available at:
http://ec.europa.eu/DocsRoom/documents?tags=ce-guide.
28
COM(2008)1900, p. 15, https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52008SC1900&from=EN.
29
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p. 70.
30
Evaluation of Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing of
construction products and repealing Council Directive 89/106/EEC, SWD(2019)1770, Page 46,
https://ec.europa.eu/docsroom/documents/37827.
Report on the implementation of Regulation (EU) No 305/2011 laying down harmonised conditions for
the marketing of construction products (the Construction Products Regulation) (2020/2028(INI))
https://www.europarl.europa.eu/doceo/document/A-9-2021-0012_EN.pdf.
31
See e.g. Discussion Paper “The future of the standardisation system within the CPR” of 7 September
2020, by European Builders Confederation (EBC), the European Construction Industry Federation (FIEC),
Construction Products Europe and Small Business Standards (SBS),
https://www.fiec.eu/application/files/6516/0015/6944/2020-09-
07_Discussion_Paper_on_the_Revision_of_the_CPR.pdf.
32
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p.26.
6
representative participated in the semi-structured interviews stressed the need to address
the problem of the slow citation of harmonised standards under the CPR.33
The CPR provides for an alternative route for CE marking for construction products not
covered or not fully covered by harmonised standards – the EOTA route – by providing
the possibility for manufacturers to request a European Technical Assessment (ETA).
The manufacturer may issue a Declaration of Performance and affix the CE marking on
the basis of an ETA. ETAs are issued by Technical Assessment Bodies on the basis of
European Assessment Documents (EADs), developed by European Organisation for
Technical Assessment (EOTA) and cited by the Commission in the OJEU (see Annex 7
on the functioning of the EOTA route). The underperformance of the standardisation
system leads also to putting the EOTA route under strain. More details on this are further
developed in section “3.2 How will the problems evolve?”
Furthermore, while the CPR lays down no specific, direct requirements in terms of
product safety, manufacturers declare the performance of products with regard to their
essential characteristics, which include safety. However, this is not in all cases
appropriate. Product safety related requirements are often hidden as product
“description” in the mandatory standards and may not cover inherent safety risks.
Examples of inherent safety risks for construction products are mechanical risks
(squeezing, cutting, slipping), mechanical failure (e.g. locks of escape doors not
opening), physical failure (e.g. too wet/too dry wood installed), risks of electric failure
(sensibility of fire detectors, risk of short-cuts and thus fire) or risks of incompatibility of
substances/materials (glues for floorings and flooring materials)34
. All in all, inherent
product safety (safety aspects not related to the safety of construction works), is not dealt
with in a consistent manner for construction products and is largely left to the Member
States, despite Article 114 TFEU (the legal basis for the current CPR) requiring to strive
for a high level of protection of safety and consumers. Requirements linked to inherent
safety defined at national level risk adding to the trade barriers within the internal
market for construction products.
Further obstacles to the internal market remain, among others, in the form of continued
existence of the national marks, certifications and approvals.35
This creates additional
barriers, e.g. through national requirements for additional testing or national product
approval for a product to be marketed/used in a given Member States, and leads to
additional costs. The existence of national marks, certifications and approvals is clearly
linked to the incomplete character of harmonisation under the CPR, the latter not
including a possibility for standards to cover environmental nor safety requirements for
products.
33
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p. 54.
34
Crucial to acknowledge is that data on safety incidents and other data needed for a quantification of risks
on health and safety with regard to construction products is missing. In general, quantified evidence on
health and safety incidents resulting from construction products is scarce, particularly since it is also of
importance to take into account the way that construction products are used/put in place/combined with
other products.
35
https://wayback.archive-it.org/12090/20200221170910/https://ec.europa.eu/info/law/law-making-
process/evaluating-and-improving-existing-laws/refit-making-eu-law-simpler-and-less-costly/refit-
platform/refit-platform-recommendations-and-other-work_en.
7
In a nutshell, if the CPR remained unrevised, there would be no significant changes to
market opportunities as a result of the CPR, thus leaving the potential for European
legislation on construction products to stimulate further growth in cross-border trade in
the sector unexploited36
.
Problem 2: Implementation challenges at national level
Despite improved cooperation among market surveillance authorities, it became apparent
during the implementation of the CPR that market surveillance activities are broadly
seen as ineffective and widely varying in quality and effectiveness from one Member
State to another37
. Ineffective market surveillance nurtures limited trust in the regulatory
framework and is thus a disincentive for companies to comply with the legislation, either
because there is little risk of getting caught, and/or because companies feel that they are
exposed to unfair competition38
. Insufficient market surveillance and enforcement
prevents benefits in terms of opening up markets and levelling the playing field for
competitors from materialising fully39
.
Furthermore, some drawbacks with regard to the functioning of Notified Bodies (NBs)
and Notifying Authorities were identified in the report on the implementation of the
CPR, indicating that relevant CPR provisions would benefit from more accuracy, e.g. on
requirements for NBs (Article 43), on operational obligations for NBs (Article 52) and on
coordination of NBs (Article 55).
Problem 3: Complexity of the legal framework /simplification not achieved
Certain features of the CPR differ from the ones used in most internal market legislation.
Particularly, the meaning of the CE marking refers to assessing the performance of a
construction product instead of its conformity with product requirements. However, it is
not clear to several stakeholders (even manufacturers, distributors, importers,
professional end users and raw material suppliers) that the CE marking under the CPR is
not a quality mark and does not indicate product safety or that a product complies with
national building requirements. The confusion created by the misunderstanding or
misinterpretation of the CE marking creates significant legal uncertainty40
.
The simplification provisions (see Annex 8 for details) within the CPR are aimed
predominantly at SMEs and include Article 5 (derogations from drawing up a
36
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p. 49.
37
Evaluation of Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing of
construction products and repealing Council Directive 89/106/EEC, SWD(2019)1770, page 23,
https://ec.europa.eu/docsroom/documents/37827.
See Annex 2 on consultation activities.
38
This due to “all the others are doing it” behaviour; see also p.62 of Supporting study for the review of the
Construction Products Regulation: Evaluation, final report, 2018,
https://op.europa.eu/en/publication-detail/-/publication/e0ead9bc-ed3f-11e8-b690-
01aa75ed71a1/language-en/format-PDF/source-195168178.
39
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p.73.
40
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p. 52, 55.
8
Declaration of Performance - DoP), Article 36 (intended to avoid unnecessary repetition
of testing), Article 37 (simplified procedures for micro-enterprises) and Article 38
(simplified procedures for products individually manufactured or custom-made in a non-
series process). The uptake of these Articles, with the exception of Article 36, remains
very limited. These provisions were expected to lead to a simplification effect, reducing
the administrative cost of placing the construction products on the market without
compromising the level of safety of construction works. However, various assessments
and feedback from the stakeholders41
show a low uptake of these simplification
provisions mainly due to low awareness and lack of clarity of the provisions, particularly
with respect to what actually constitutes “equivalent” documentation. The attempt to “level
the playing field” for the smaller companies particularly through Article 37 has not been
successful. Furthermore, the justification of measures that allow some manufacturers to
implement such “lighter” procedures are called into question, considering that this
creates uncertainty for end-users, who may justifiably expect that all products bearing the
CE mark are subject to the same procedural requirements.42
The evaluation showed that
while some simplification has been achieved by the CPR, this has been less than
expected.
While the expectation for the CPR was a reduction in costs and administrative
burdens, the result is in fact increased costs.43
Moreover, the estimate provided by the
Study on the economic impacts of the CPR44
, indicates that the smallest companies bear
the largest administrative burden.
Furthermore, some CPR provisions are insufficiently clear or create overlaps, either
within the CPR framework itself, or between the CPR and other EU legislation. As an
example, Article 9(2) of the CPR includes a list of information that has to accompany the
CE marking45
, most of which the manufacturer has already presented in the Declaration
of Performance (DoP). This situation has been subject to heavy criticism since the
beginning of the CPR implementation. The overlap between the information required in
the DoP and in the CE marking generates redundant administrative and financial burdens
and constitutes a clear inefficiency46
.
41
As indicated in the 2016 Implementation report, in the 2016 Supporting study for the fitness check on the
construction sector and in the 2018 Evaluation supporting study.
42
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p. 70.
43
As shown by the results of the two studies (the Supporting study for the fitness check of the construction
sector and the study on Economic Impacts of the Construction Products Regulation), these were mainly
due to administrative costs.
44
VVA Europe, the Danish Technological Institute (DTI) & the Netherlands Organisation for applied
scientific research (TNO) (2016). Final Report: Economic Impacts of the Construction Products
Regulation.
45
I.e. the two last digits of the year in which it was first affixed, the name and the registered address of the
manufacturer, or the identifying mark allowing identification of the name and address of the
manufacturer easily and without any ambiguity, the unique identification code of the product-type, the
reference number of the declaration of performance, the level or class of the performance declared, the
reference to the harmonised technical specification applied, the identification number of the notified
body, if applicable, and the intended use as laid down in the harmonised technical specification applied.
46
While there is no information available on the cost of this overlap, the analysis confirmed that it
constitutes a clear inefficiency. The results of the study, conducted in 2015, show that these overlaps
have resulted in various impacts, including the legal value of the CE marking being unclear for
stakeholders, problems in affixing the CE marking (either to the construction product itself or to the
9
With respect to clarity and coherence between the CPR and other pieces of EU
legislation, there are a number of areas where they overlap and/or are in conflict with
each other, including the Ecodesign Directive47
(EDD) and several other
product/technical directives48
. This creates potential overlaps with respect to the
procedures established for construction products, in particular regarding parallel routes
for CE marking.
The supporting study for the fitness check49
carried out an analysis of the coherence of
selected EU acts applying to the construction sector. The study considered the legal
overlaps between the CPR and EDD (2009), and Energy Labelling Directive50
(ELD),
which may also apply to construction products, and confirmed the inconsistencies in
definitions, lack of cross-references and overlaps between the three pieces of legislation.
The precise costs of these legal overlaps could not be quantified but may be significant
for manufacturers of those specific products. Existing overlaps between the EDD and
CPR for specific product categories currently relate to five product categories, namely
solid fuel boilers, (solid fuel) local space heaters and space/water heaters, as regulated by
Commission Regulations (EU) 2015/1185, 2015/1188, 2015/1189, 813/2013, and
814/201351
. In its opinion XII.8.a52
, the REFIT platform also recommended that the
Commission gives priority to addressing the problems of overlapping and repetitive
requirements.
Problem 4: Inability of the current CPR to deliver on broader policy priorities,
particularly the green and digital53 transition
With a view to reducing emissions and reaching climate neutrality by 2050, there is a
need to mobilise industry to move towards a climate-neutral and circular economy,
particularly in resource-intensive sectors such as construction. The building stock,
currently responsible for 40% of final energy and 36% of greenhouse gas emissions in
the EU, has a large cost-effective potential to reduce emissions. The European Climate
Pact recognised the need for using low-carbon materials in order to render buildings
more climate-friendly. The analysis underpinning the European Climate Pact has
identified that in order to achieve the proposed 55% climate target by 2030, around
accompanying packaging) and costs to industry (See RPA (2015). Analysis of the implementation of the
Construction Products Regulation, p. 151). These findings were confirmed by the evaluation study (see
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p. 85).
47
Directive 2009/125/EC.
48
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p.115.
49
Economisti Associati, Milieu & CEPS (2016). Supporting study for the Fitness Check on the
construction sector: EU internal market and energy efficiency legislation.
50
Directive 2010/30/EU.
51
Economisti Associati, Milieu & CEPS (2016). Supporting study for the Fitness Check on the
construction sector: EU internal market and energy efficiency legislation, p. 92.
52
https://wayback.archive-it.org/12090/20200221170910/https://ec.europa.eu/info/law/law-making-
process/evaluating-and-improving-existing-laws/refit-making-eu-law-simpler-and-less-costly/refit-
platform/refit-platform-recommendations-and-other-work_en
53
Digital transition in the form of digitalisation of information via digital solutions/tools e.g. digital
database.
10
275 billion EUR of additional investments are needed per year in buildings renovation54
.
Construction products will constitute a substantial part of these additional investments,
especially as in renovation the share of the construction products (such as insulation
materials, wooden engineered boards, metal structures or glass) on the turnover of
projects is higher than in new construction. Therefore, a substantially rising demand for
construction products can be expected in the next years. Underperformance of the CPR
framework could affect the implementation of the renovation wave, highlighting the need
for a frictionless and innovative internal market for construction products to fulfil the
targets of the EGD and especially for the renovation wave.
Minimising the climate footprint of buildings requires, among others, resource efficiency
and circularity. It also requires shifting the focus from the environmental impacts55
during the use phase to the entire life cycle of the building. In such a holistic approach,
the choice of construction products will play a key role. However, so far it is difficult to
compare performance of construction products and materials across various circular
design related aspects, such as ease of disassembly, future reuse potential, maximum
technical service life, whole life cycle cost/carbon, material intensity/waste and
reparability56
.
The climate resilience of specific infrastructure, buildings and civil engineering works is
determined by local circumstances and building codes in the Member States, and where
relevant other EU legislation. This is therefore outside the scope of the CPR. But in order
to properly design, maintain and renovate the construction works also under the changing
climate conditions, there is a need to provide accurate information on the performance of
construction products.
There is significant mitigation potential to be achieved in the manufacturing of
construction products.57
For instance, for steel the shift away from blast furnace (BF) to
electric arc furnace (EAF) (using scrap metal) can lead to sector emissions reduction of
around 25-30% compared to 2010. In the cases of hydrogen, electrolysis or CCS and
CCU, the reductions can be much higher. If the direct reduced iron is produced via either
hydrogen or electrolysis iron ore reduction, it allows for electrification of the most
energy-intense step in iron making , leading to reductions up to 85-95%.58
Similarly, also
for the chemicals and cement sector, large emission reduction potential exist.
Other products can even have net-negative CO2 emissions and thus store CO2 in
construction. To stimulate the incentives and demand for low-carbon construction
54
Commission Staff Working Document, Preliminary analysis of the long-term renovation strategies of
13 Member States, 2021,
https://ec.europa.eu/energy/sites/default/files/swd_commission_preliminary_analysis_of_member_state
_ltrss.pdf.
55
See annex Annex 9 on the environmental impact of construction products for further details.
56
Deloitte, Building Research Establishment, In Extenso Innovation Croissance (2021), Study on circular
economy principles for buildings’ design, p.60.
57
IN-DEPTH ANALYSIS IN SUPPORT OF THE COMMISSION COMMUNICATION COM(2018)
773: A Clean Planet for all A European long-term strategic vision for a prosperous, modern, competitive
and climate neutral economy; https://ec.europa.eu/clima/system/files/2018-
11/com_2018_733_analysis_in_support_en.pdf, section 7.6
58
EUROFER (2014), A Steel Roadmap for a low carbon Europe 2050,
http://www.nocarbonnation.net/docs/roadmaps/2013-Steel_Roadmap.pdf ; ECOFYS & Fraunhofer ISI
(2018), Impact on the Environment and the Economy of Technological Innovations for the Innovation
Fund (IF), https://publications.europa.eu/en/publication-detail/-/publication/669226c7-b6ff-11e8-99ee-
01aa75ed71a1/language-en/format-PDF/source-77120765
11
products at the construction works level, coherent and transparent information on the
climate, environmental and sustainability performance of the construction products
is needed, but currently not covered by the harmonised system under the CPR.
In this context, Annex I to the current CPR provides for basic requirements for
construction works (BWRs), among which BWR3 already refers to the environmental
impacts, and BWR7 refers to sustainable use of natural resources. However, the current
harmonised standards under the CPR cover only some elements of BWR3 (e.g. emissions
of dangerous substances into the air, emissions into soil or ground water) and none of
BWR7. This is because there was a lack of agreement among the standardisers about how
to apply these BWRs across different construction products. Additionally, it has not been
prioritised, especially as in the past the regulatory needs of the Member States were less
obvious when it came to environmental aspects, as opposed to e.g. fire safety or
structural stability. The amount of energy consumed, the CO2 emissions and other
negative environmental impacts are mostly significant in the process of the production of
construction products59
. In this view, the performance approach can at best indirectly
regulate the production stage. Therefore, the harmonisation provided by the CPR and the
legal instruments adopted under it fall short of covering these elements. The construction
products are thus not yet subject to harmonised assessment and verification of the
constancy of performance in this area. This significantly limits the possibilities for the
sector to declare, in a consistent and harmonised way, the performance of their
products and to differentiate the products with regard to climate, environment and
sustainability performances. It also significantly limits the possibilities for Member
States to define national requirements or to include criteria in public procurement for the
purposes of sustainability objectives without putting at risk the functioning of the internal
market.
The CPR is also not fit to take account of the new business models stemming from the
progressing digitisation of the sector, such as e.g. 3D printing. Moreover, without a
transition of the construction sector towards more digitalised approach to data
registration, storage and sharing, the objectives of the European Green Deal risk being
undermined as gaps may occur when it comes to the product information, rendering the
information available along the supply chain incoherent and not transparent. Under the
current CPR, digital information is not available. This will become a challenge
particularly as reliable product information, from manufacturing to the installation in the
building and demolition will be necessary to live up to the goals of circularity and
sustainability, and will be required by other linked legislation (e.g. Energy Performance
of Buildings or SPI). Similarly, the current CPR does not encompass the application of a
Digital Product Passport60
, which could be used in digital building logbooks61
, Level(s)62
or other tools for assessing and reporting on the sustainability performance of buildings.
59
Material Economics, ‘Circular Economy – A Powerful Force for Climate Mitigation’, 2018, p.12.
60
A Digital Product Passport (DPP) is a method of digitally recording information about a product. The
main purpose of this is to provide an easy to access, centralized bank of information. https://www.re-
tek.co.uk/re-tek-news/digital-product-passports/.
61
A digital building logbook is a dynamic tool that allows a variety of data, information and documents to
be recorded, accessed, enriched and organised under specific categories. It represents a record of major
events and changes over a building’s life cycle, such as change of ownership, tenure or use,
maintenance, refurbishment and other interventions. Definition of the digital building logbook -
Publications Office of the EU (europa.eu).
62
Level(s) is an assessment and reporting tool, developed by the European Commission, for sustainability
performance of buildings, firmly based on circularity: Level(s) (europa.eu)
12
Other issues not linked with the four problems presented above
The following issue has been also identified as important to be addressed in the revision,
while not explicitly covered in the evaluation:
As the price of construction materials and output price index have increased, the
construction sector is challenged by increasing building costs. At the same time housing
affordability and energy poverty are a challenge for many European citizens, as house
prices have risen faster than the incomes in most Member States.63
Overall, these
increasing costs make it challenging for the construction industry to build affordable
houses for low-income households64
. At the moment, each building, even when they are
just replicated, would need at least one permit in each Member State. A European market
for (types of) prefabricated small houses65
would allow reaching economies of scale to
drive down building costs, if standards for such houses would be developed under the
CPR (in line with Member States regulatory needs and the local demand). In addition,
national and local authorities could potentially grant building permits in a fast track
procedure.
3. WHAT ARE THE PROBLEM DRIVERS?
3.1. Problem drivers
The main problems above are driven by regulatory failures.
[Drivers for Problem 1]
On the one hand, the internal market for construction products cannot function properly
without up-to-date harmonised standards in support of the CPR cited in the OJEU.
Because of their mandatory character and the exhaustive nature of harmonisation under
the CPR,66
when no new standards are cited, the market needs and regulatory needs of
the Member States cannot be addressed. Lack of citation is due to a mismatch between
the legal criteria applied by the Commission when assessing the harmonised standards
under the CPR and the ability of standardisers to deliver requested outputs. In the
recent past, new standards could not have been cited in the Official Journal mainly due to
legal issues, such as contradiction of the standards with the requirements of the CPR or
trespassing the scope of the mandate/standardisation request. Several judgments of the
Court of Justice of the EU67
underlining the role of the Commission in monitoring and
management of the standards development have resulted in a more stringent approach of
Commission services when assessing draft harmonised standards.
63
E.g. https://www.oecd.org/housing/policy-toolkit/
64
Housing affordability and sustainability in the EU, Analytical Report, European Construction Sector
Observatory, November 2019, page 50, https://ec.europa.eu/docsroom/documents/38481.
65
Up to 180 m2
usable surface and 100 m2
ground floor.
66
See judgment of the Court of Justice of 16 October 2014 — European Commission v Federal Republic
of Germany (Case C-100/13), para. 62.
67
Judgment of 27 October 2016 in case C-613/14 James Elliott Construction Limited v Irish Asphalt
Limited, ECLI:EU:C:2016:821, EUR-Lex - 62014CJ0613 - EN - EUR-Lex (europa.eu).
Judgment of 26 January 2017 in case T-474/15 Global Garden Products Italy SpA (GGP Italy) v
European Commission, ECLI:EU:T:2017:36, EUR-Lex - 62015TJ0474 - EN - EUR-Lex (europa.eu).
Judgment of the Court of 14 December 2017 in Case C-630/16 Request for a preliminary ruling from
the Helsingin hallinto-oikeus - Anstar Oy, EUR-Lex - 62016CJ0630 - EN - EUR-Lex (europa.eu).
13
At the same time, under the current CPR, the Commission has no alternative whenever
the standardisation process is not delivering. It lacks empowerment to rely on an
alternative solution (‘safety net’) when standards are not delivered, or are not delivered
within a reasonable timeframe or are considered to be of insufficient quality.
Further, in contrast to the former CPD, under the current CPR standards should not
address the inherent product safety of essential characteristics. This also creates “gaps” in
the standards, particularly in view of the Member States.
The incomplete character of harmonised standards under the CPR has contributed to
a number of Member States setting additional requirements for construction products,
including the reliance on national approvals, certifications and marks, in order to fill the
“gaps” in harmonised standards and be able to fully regulate the safety of construction
works. Member States added further performance requirements not covered by the
harmonised standards, thereby being in conflict with the principle of “exhaustiveness”68
of the harmonised system under the CPR. Several CJEU rulings69
have confirmed the
exhaustiveness of the harmonised system created under the CPR, thereby leaving no
room for any other (national) system to deal with the marketing of construction products,
within the harmonised sphere, presenting economic operators with additional
requirements which add costs and act as obstacles to the internal market”70
. However,
harmonised standards currently cited in the OJEU cover only some of the Basic Work
Requirements set out in Annex I of the CPR (serving as a reference for the Member
States to lay down requirements for construction works on their territory), or are out-
dated and do not any more contain all elements necessary to fulfil Member States’
regulatory needs. The national marks, certifications and approvals are therefore expected
to persist, as the incomplete character of the harmonised standards adopted under the
CPR prevents the Member States from relying on harmonised performance criteria and
assessment methods.
[Drivers for Problem 2]
As presented in the evaluation71
, the implementation of the CPR and multiple feedback
from the stakeholders confirm that the market surveillance in many Member States is
insufficient and so ineffective. Moreover, several stakeholders noted that there is no
clarity which organisations are responsible for market surveillance and enforcement and
also there is a lack of reporting mechanisms.72
The main area where stakeholders have
identified inconsistencies in terms of implementation was in relation to the level of
market surveillance in Member States.73
While it is largely because of the lack of
appropriate resources to tackle the non-compliance effectively, the lack of clarity of
the current CPR provisions on market surveillance also plays a significant role. This
68
For construction products covered by harmonised standards, the Member States are not allowed to set
any additional requirements outside the existing harmonised structure and must allow market access.
69
Judgment of the Court (Tenth Chamber) of 16 October 2014 — European Commission v Federal
Republic of Germany (Case C-100/13), para 62 https://op.europa.eu/en/publication-detail/-
/publication/0771274f-89a6-11e4-b8a5-01aa75ed71a1.
70
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p.101.
71
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, pp.23-24.
72
RPA (2015), Analysis of implementation of the CPR, page 166.
73
RPA (2015), Analysis of implementation of the CPR, page 179.
14
results in a diverging application of these provisions because of varying interpretations
by national authorities.
[Drivers for Problem 3]
The uptake of simplification provisions74
under the CPR remains very limited. Various
assessments and feedback from the stakeholders75
show that the driver for this problem is
low awareness and lack of clarity of the provisions, particularly with respect to what
actually constitutes “equivalent” documentation76
. The notion of “equivalence” is not
explained, the conditions for practical implementation of the simplified procedures
remain therefore unclear, with small enterprises and other actors, including Member State
authorities, struggling to implement the rules. The lack of clarity is backed by the
presence of a very strong support for general clarification (redrafting) of the
simplification provisions77
. The lack of clarity prevents achieving simplification and
reduced costs for specific types of products and economic operators, particularly for
micro-enterprises/craft enterprises.78
[Drivers for Problem 4]
The current CPR is not able to deliver on the policy objectives stemming from the
European Green Deal and the Circular Economy Action Plan, as these new policy
objectives are not reflected therein. In particular, the CPR does not permit to establish
product requirements which are not performance-related. For this reason, the CPR is also
not flexible enough to contribute to the ambitious commitments proposed in the EGD
and the CEAP. The absence of references to sustainability performances in the
harmonised standards adopted under the CPR is resulting in Member States unlawfully
introducing additional national requirements for construction products, putting at risk the
functioning of the internal market and imposing additional costs on manufacturers,
particularly relevant for SMEs.
The current CPR is also unable to deliver on new business models, in particular 3D
printing. The problem linked to 3D printers used for decentralised manufacturing derives
from the fact that none of the three actors involved (the designer, the client, the owner of
the printer) is necessarily a manufacturer or a producer in the meaning of applicable
product legislation. Consequently, without a responsible manufacturer 3D printed
products escape the current scope of product safety legislation. Therefore, the
obligations of the CPR, which build on the responsibility of a manufacturer, are not
applicable. 3D printed products could be produced in high numbers without undergoing
any conformity assessment procedure. This regulatory gap might lead to risks for
consumers or other users and create unfair competitive relationships79
. Provisions related
74
See further details in Annex 8 on simplification provisions.
75
As indicated in the 2016 Implementation report, in the 2016 Supporting study for the fitness check on the
construction sector and in the 2018 Evaluation supporting study.
76
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p. 70.
77
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report,
p. 60.
78
Evaluation of Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing of
construction products and repealing Council Directive 89/106/EEC, SWD(2019)1770, p.40
79
Regarding the regulatory issues raised by decentralised 3D-printing, see
https://www.howtoregulate.org/decentralized-3d-printing-a-regulatory-challenge/#more-23.
15
to 3D printing will provide a level playing field to manufacturers using this technology,
preventing the creation of barriers to trade or unjustified compliance cost.
Furthermore, the current CPR does not foresee broad application of digital tools e.g.
digital information sharing and digital information flow.
3.2. How will the problems evolve?
As previously explained, under the current framework hardly any new standards or
amendments of standards in support of the CPR have found their way into the OJEU, and
none since early 2019 (see also the table and figures below). Economic operators cannot
realise the full benefits of a consolidated internal market nor rely on a harmonised
manner to inform users about the performance of their products. With time, harmonised
standards already cited in the OJEU become more and more obsolete (the majority of
them has been cited more than 10 years ago) and, in addition, often no longer correspond
to the technology used. In the meantime, many of the existing standards have been
updated by the standardisers and were made available to manufacturers. However, these
updated versions have not been cited in the OJEU as harmonised standards under the
CPR because of important legal and content-wise shortcomings. As long as they are not
cited in the OJEU, they do keep the status of a European Standard (EN)80
, hence can be
voluntarily used by the manufacturers, but cannot serve as a basis to draw up a
declaration of performance and affix the CE marking. This situation demonstrates the
willingness of the industry and standardisers to continue developing state-of-the-art
standards for the construction sector. However, these standards do not meet the
overriding legal framework requirements of the CPR to give them the status of
harmonised standards. If this is not addressed, the discrepancy between the needs of the
Member States and the market actors on one hand and the reality of the harmonised
system under the CPR on the other hand is thus likely to further increase over the years.
This is also expected to lead to increased burden on the so-called EOTA route81
, allowing
for the CE marking based on European Technical Assessments (ETAs)82
that are issued
based on an EAD. This route was originally intended to allow the most innovative
products not (fully) covered by harmonised standards gaining access to the market.
However, due to the malfunctioning of the standardisation system, in recent years it is
more and more frequent that the EADs are considered an alternative route to (lacking
new) harmonised standards, consequently most of the new EAD developments regard
products that slightly deviate from the scope of existing harmonised standards. Such
practice benefits mainly the manufacturers requesting an ETA (and so not all
manufacturers of the same type of products). Such ETAs are developed at a cost to be
borne by the manufacturers requesting them. As only the manufacturer having requested
ETA can affix the CE marking to the assessed product, this causes unnecessary cost to
many manufacturers requesting ETAs, instead of allowing all manufacturers to rely on
80
https://boss.cen.eu/developingdeliverables/pages/en/pages//.
81
Further information about the EOTA route can be found in Annex 7.
82
The CPR provides for an alternative route for CE marking for construction products not covered or not
fully covered under hENs by providing the possibility for manufacturers to request a European
Technical Assessment (ETA). The manufacturer may issue a DoP and affix the CE marking on the basis
of an ETA. ETAs are issued by Technical Assessment Bodies on the basis of European Assessment
Documents (EADs). The development of EADs is the responsibility of EOTA.
16
harmonised standards for CE marking purposes. These costs would not present
themselves in case relevant harmonised standards were cited in the OJEU. While
recurring to ETAs is not against the provisions of the CPR, such practice leads to a large
number of requests to assess draft EADs83
(see Article 19(2) and Annex II of the CPR)
annually to the Commission and this situation risks becoming dysfunctional as well, due
to a higher number of complex assessments to be handled by limited Commission
resources. Generally, the EOTA route is commercially beneficial for companies with
innovative products (or other products not covered by a harmonised standard), however
the problem is that the process of developing EADs and on their basis ETAs was not
structured to deliver hundreds EADs per year and therefore it has become too slow, and
slowness is particularly detrimental to innovative products. In fact, manufacturers want to
CE mark and put their innovative product on the market as quickly as possible, and the
slow process may sometimes act as a halt to innovation. The fact that a large number of
ETAs has been issued (more than 6,900 as of end 202084
), and that the number of ETAs
issued each year is growing rapidly, seems to indicate that manufacturers think that this
CE marking option is worth the time and cost – in other words, that it is effective for all
products not only innovative, despite there being room for improvement in terms of
length of the process85
. This might be especially true in a situation where no harmonised
standard is being cited. However, this route to the CE marking brings additional costs for
each manufacturer who requests an ETA, compared to the situation if a relevant
harmonised standard was cited in OJEU. Moreover, it brings additional burden to the
Commissions resources as the number of requests to assess the draft EADs increases.
The figures below present the evolution of the harmonised standards under the CPR, the
European Technical Assessments (ETAs) and European Assessment Documents (EADs)
over the recent years.
Table 1: The evolution of harmonised standards, ETAs and EADs under the CPR
2014 2015 2016 2017 2018 2019 2020
Harmonised
standards
(hENs)a)
hENs
offered by
CEN
30 89 57 20 21 19 1
hENs
published
in OJEU
23 25 18 19 9* 0 0
83
The European Assessment Document (EAD) is a harmonised technical specification for construction
products developed by European Organisation for Technical Assessment (EOTA) for cases where a
product is not fully covered by a harmonised European standard. EADs are the basis for issuing European
Technical Assessments (ETAs).
84
EOTA – 2020 Annual Report, https://www.eota.eu/news/eota-2020-annual-report.
85
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p.68.
17
European
Technical
Assessments
(ETAs)b)
based on
ETAGs86 381 581 703 777 638 272 237
Based on
EADs
2 55 176 374 972 831 937
European
Assessment
Documentsb)
Registered
as DPs
(draft
EADs)
50 135 99 182 124 103 93
Cited in
OJEU
0 19 65 71 64 13 44
Source: a)
COM internal data; *publication of 6 standards delayed to early 2019; b)
EOTA
86
European Technical Approval Guidelines (ETAGs) were elaborated as common approval guidelines
under the Construction Products Directive 89/106/EEC (CPD). Since 2013, when the CPD was replaced
by the Construction Products Regulation (EU) No 305/2011 (CPR), they were in use as European
Assessment Documents (EAD) in accordance with Article 66 of this Regulation. However, EOTA and
the European Commission agreed that ETAGs should be converted into EADs. This conversion exercise
has now been completed. The conversion comprised all ETAGs but ETAG 016, ETAG 021, ETAG 023,
ETAG 024, ETAG 025, ETAG 031, ETAG 033 and ETAG 035. Please note that the mentioned ETAGs,
which have come out of use, will only be converted into an EAD if a manufacturer requests an ETA on
their basis. https://www.eota.eu/etags-archive.
18
Figure 1: Number of hENs offered by CEN and hENs published in the OJEU
Source: COM internal data
Figure 2: Number of ETAs based on ETAGs and on EADs
Source: EOTA
19
Figure 3: Number of EADs registered as draft and number of EADs cited in OJEU
Source: EOTA, COM internal data
Based on this overview, the expectations are that these issues will become more pressing
over time, with manufacturers continuing to use the EOTA route for CE marking,
incurring unnecessary additional costs on top of putting under strain the Commissions
limited resources.
Finally, new political goals, namely stemming from the European Green Deal and the
CEAP, cannot be effectively pursued under the current CPR making it difficult if not
impossible to deliver on the objectives relevant for construction products, including
circularity and environmental impacts. Although the current CPR could address partially
these goals (with the BWR3, referring to the environmental impacts, and BWR7,
referring to sustainable use of natural resources), this is hardly achievable with the
blocked technical harmonisation system. As consequence, the current CPR cannot
address the SPI goals. Without a revision of the CPR, the sustainability aspects of
construction products would then need to be addressed under the SPI with a risk of
double administrative burden (the same product regulated under two acts). This could
also put at risk the coherence between safety and sustainability aspects which is crucial
considering the role of construction products in construction works. Also, without an
overarching framework to ensure sustainability of construction products in the EU the
fragmentation of the EU Internal Market will gain further momentum, as individual
Member States will continue their attempts to tackle the described issues at national
level.
4. WHY SHOULD THE EU ACT?
4.1. Legal basis
The first paragraph of Article 114 of the Treaty on the Functioning of the European
Union (TFEU) empowers the European Parliament and the Council to adopt measures for
the approximation of the provisions laid down by law, regulation or administrative action
20
in Member States which have as their object the establishment and functioning of the
internal market. Article 114 TFEU allows the EU to take measures both to eliminate
current obstacles to the establishment and functioning of the internal market and to
address barriers that dissuade economic operators from taking full advantage of the
benefits of that market.
Through the CPR, the EU has sought to remove these obstacles to the circulation of
construction products within the European single market – this being an objective since
the adoption of the Construction Products Directive. Article 114 TFEU forms the legal
basis for the current CPR and is the appropriate legal basis for its revision.
In addition to pursuing internal market objectives, the initiative aims to contribute to a
high level of environmental protection and combatting climate change (Article 11 and
Articles 191 to 193 of the TFEU) as it also aims to contribute to the Circular Economy
Action Plan, the Renovation Wave and other linked initiatives. However, internal market
objectives are predominant, as the absence of adequate and comprehensive internal
market rules to regulate marketing of construction products in a way to contribute to their
sustainable production and use leaves room for solutions being developed by the Member
States or by industries, which contributes to the dysfunctionality of the internal market by
generating potential barriers, fragmentation and incoherent approaches.
4.2. Subsidiarity: Necessity of EU action
The deficiencies of the current CPR cannot be remedied by Member States’ laws as the
Member States have no competence for revising the CPR framework nor for correcting
its failures through national, or even regional, measures. EU action is therefore relevant
and necessary. Only at EU level conditions to ensure the free circulation of construction
products can be set whilst ensuring a level playing field. In particular, environmental
protection objectives and climate performance of construction products are being
addressed in different ways in the EU, considering also the different geographical and
local conditions, and this variance in Member States' approaches to construction
products’ sustainability and safety causes barriers to trade. An envisaged role for the EU
should be to promote the development of a competitive internal market in construction
products by removing any unnecessary disparities in regulation of performance of
construction products, including environmental one, while allowing Member States to
reflect their specificities in national building codes. Therefore, coordinated EU action can
more effectively reinforce and supplement national and local actions, contributing in
particular to construction products’ sustainability regarding climate performance and
environmental protection.
4.3. Subsidiarity: Added value of EU action
The revision of the CPR is expected to improve the overall functioning of the internal
market for construction products, particularly by addressing the current issues relevant to
the standardisation system and eradicating further barriers to trade, such as duplication or
overlapping of regulatory provisions either at the EU or national/regional levels. This
would in turn increase legal certainty as well as predictability and improve the level
playing field for the construction industry. Trust in the entire system would be leveraged
thanks to more streamlined market surveillance practices across the EU. Finally, the
21
revision would address the aspects of environmental performance and circularity of
construction products, which can only be tackled at the EU level, where the common
technical language is being developed.
The proposed measures are proportionate as they will not go beyond what is necessary to
provide regulatory certainty while ensuring a high level of protection of safety and of the
environment. EU action is therefore justified and necessary.
5. OBJECTIVES: WHAT IS TO BE ACHIEVED?
The two general objectives of the revision are to:
1. Achieve a well-functioning internal market for construction products; and to
2. Make the framework apt to contribute to the objectives of the green and digital
transition, particularly the modern, resource-efficient and competitive economy.
These general objectives respond to the problems and the underlying drivers, as
presented above. They build, on one hand, on the long-term experience gained during the
implementation, showing areas of improvement; and on the other hand respond to the
objectives of the industrial policy87
. The industry, operating in the EU market, needs
harmonisation, legal clarity, adequate enforcement and reinforced market surveillance in
order to benefit from the level-playing field and from the green and digital transition.
These general objectives are complemented by the following specific objectives:
1.1. To deblock the technical harmonisation system;
1.2. To reduce national barriers to trade for products covered by the CPR;
1.3. To improve enforcement and market surveillance;
1.4. To provide more clarity (more comprehensive definitions, reducing overlaps,
collision rules with other legislation) and simplification;
1.5. To reduce the administrative burden, including through simplification and
digitalisation;
1.6. To ensure safe construction products;
2.1. To contribute to reducing the overall climate and environmental impact of
construction products, including through the application of digital tools (Digital
Product Passport).
The below figure 4 presents the intervention logic.
87
Communication from the Commission to the European Parliament, the Council, the European Economic
and Social Committee and the Committee of the regions. Updating the 2020 New Industrial Strategy:
Building a stronger Single Market for Europe’s recovery.
https://ec.europa.eu/info/sites/default/files/communication-new-industrial-strategy.pdf.
22
Figure 4: Intervention logic
6. WHAT ARE THE AVAILABLE POLICY OPTIONS?
The intervention logic presented in Figure 4 illustrates the underlying drivers, the links
between the problems the CPR is expected to address, the objectives assigned to it, the
CPR’s policy options, and the sub-options. The content of each option88
(i.e. the detailed
measures that form part of them) were analysed and consulted with the Member States,
industry and other stakeholders89
.
Not considered explicitly as an element of the options but essential to the delivery of the
preferred option, is the question of the Commission’s administrative setup and
capacity. Ambitious solutions can only be delivered if there are adequate resources in
place to implement them. The current situation has, for example, demonstrated that
delays have accumulated in the evaluation of CEN harmonised standards and EOTA
deliverables resulting in legal uncertainty for the market and users, hindering the free
circulation of construction products in the EU and impacting the competitiveness of
manufacturers.
The social dimension linked to the manufacturing of construction products (social
conditions of production of construction products placed on the EU market) has not
formed part of the options devised for the CPR revision. Firstly, because of their size and
volume, the construction products are predominantly produced in the EU where no
88
See Annex 12 for the Refined indicative options paper, https://ec.europa.eu/docsroom/documents/40762.
89
See Annex 2 on consultation activities. See also the Results of the Survey on the Refined indicative
options paper, April-August 2020, https://ec.europa.eu/docsroom/documents/43103.
23
concerns linked to the social aspects of their manufacturing are known. Secondly, the
envisaged Sustainable Corporate Governance initiative (SCGI) is considering the
possible introduction of a general due diligence duty for companies of a certain size,
covering human rights and environmental aspects related to all company activities (not a
particular product) including the supply chain. Finally, the upcoming SPI considers the
possibility of setting requirements on social aspects along the value chain of products.
6.1. What is the baseline from which options are assessed?
The baseline scenario (referred to as “option A” during stakeholders’ consultations)
implies no revision of the Regulation. This means the current CPR being in force,
together with the entirety of the harmonisation system it put in place, hence including
making use of all existing tools already at hand, i.e. Delegated Acts, Implementing Acts
and harmonised standards90
.
The baseline scenario means therefore a continuation of the harmonisation system and its
implementation, e.g. dialogue and efforts to provide further guidance and streamlining
the standardisation work; actions taken upon the national marks91
; promoting the
understanding of the CPR; enhancing the market surveillance, through e.g. by
recommending effective default market surveillance controls, within the framework of
Regulation (EU) 2019/1020 on market surveillance92
.
It is to be noted that the system, under the baseline scenario, would still to a very large
extent be the one described in the evaluation and that some of the actions suggested in
the evaluation have been taken, but failed to deliver. The likely evolution under the
baseline scenario is reflected in section 3.2 (How will the problems evolve?).
Under the baseline, it would be at most only partially possible to address climate and
environmental performance aspects of construction products through the CPR (i.e. no
reparability, no durability, availability of spare parts). However, this would require a
much better performing harmonisation system. Therefore, more likely the SPI would
have to address the goals stemming from the European Green Deal and the CEAP for
construction products. Certainly, it would take a long time to cover a considerable
number of construction products owing to their diversity. This would lead also to
unnecessary additional administrative burden, with different aspects of the same product
being regulated under different acts and through separate procedures. This could also put
at risk the coherence between safety and sustainability aspects which is crucial
considering the role of construction products in construction works.
Individual Member States are also expected to compensate the lack of an EU-wide
framework for sustainability and safety requirements for construction products by
90
As of 23 October 2021, 21 delegated and implementing acts have been adopted under the CPR. A list of
implementing and delegated acts adopted by the Commission in accordance with the Construction
Products Regulation is available on the Commission’s website. See Annex 6 Description of the CPR.
91
While the number of infringements of the CPR can be vast, the Commission has concentrated its efforts
on cases where it can be most effective. As the Commission won several cases in the CJEU, e.g. C-
100/13, joined cases C-475/19P and C-688/19P, a solid basis for effective judicial protection at the
national level was provided.
92
OJ L 169, 25.6.2019, p. 1–44.
24
introducing uncoordinated approaches at the national level, thereby further deteriorating
the internal market for construction products.
6.2. Description of the policy options
This section provides a detailed description of each of the policy options proposed to
promote a well-functioning internal market for construction products in the EU. The
policy options, with the exception of Option E, are further able to make the framework
apt to contribute (to a different extent) to the objectives of the European Green Deal. The
below graph also presents the content of the different options and how they interact:
Figure 5: Policy options
Amid increasing environmental and climate concerns, and particularly in the light of the
need to support the European Green Deal, in case of a revision, the CPR provisions could
better target the aspects of the environment and sustainable use of natural resources,
while respecting Member States’ responsibility for the safety of construction works. In
the 2020 survey, 56% of participants in the CPR Revision Technical Stakeholders’
Conference showed preference for inherent environmental product requirements to be
integrated into the CPR and its harmonised sphere when asked about the preferred way
that construction products can contribute to the transition towards a more sustainable
built environment, in the frame of the European Green Deal. It was also supported by
several participants that the EU regulatory requirements at the EU and Member States
levels on information on the characteristics, contents and environmental impacts of
construction products need to be strengthened93
. The Council and the European
Parliament also called for stronger integration of circularity and environmental
sustainability into the CPR.94
93
Deloitte, Building Research Establishment, In Extenso Innovation Croissance (2021). Study on circular
economy principles for buildings’ design, p.78.
94
https://www.consilium.europa.eu/media/41508/st14523-en19.pdf; Implementation of Regulation (EU)
No 305/2011 laying down harmonised conditions for the marketing of construction products (the
Construction Products Regulation), 2020/2028(INI).
25
Option B – repairing the CPR
Option B is designed as a stand-alone option aimed at addressing the issues highlighted
in the evaluation and can thus be considered as an option of “repairing the CPR”. It
covers measures aimed at addressing the problems and objectives identified in previous
sections. These issues are numerous and often interlinked, hence the need of a significant
revision in order to offer appropriate solutions. Consequently, option B can be regarded
as an overhaul of the current CPR.
In the context of option B, the following actions are foreseen:
- To address the challenges of the technical harmonisation system, option B foresees
introducing an empowerment for the Commission to rely on a ‘safety net’
(alternative/fall back) solution in case the standardisation system is not delivering
standards in time and of sufficient quality. Such empowerment would allow the
Commission services to draft Commission Acts containing technical specifications
in support of the CPR. A similar approach is also available in other sectoral
legislation, e.g. the Fertilisers Regulation95
, the Medical Devices Regulation96
, and in
recent legislative proposals, e.g. the proposal for the Machinery Regulation97
.
Additionally, the Member States will be requested to proactively identify their
regulatory needs upfront, in view of reducing the number of iterations of standards
developed. Furthermore, where delivered standards are incomplete or insufficient, the
Commission would be empowered to act in such situations, to render the system
functioning and efficient. Such a solution would imply that the development process
of technical content will take place in a close dialogue and cooperation with the
industry and Member States experts and other relevant stakeholders but will be under
the lead of the Commission services. These Commission Acts containing technical
specifications will have a status similar to the harmonised standards; the
manufacturers of products covered by such specification would thus be able to draw
up the Declaration of Performance and to acquire the CE marking, allowing to place
respective products on the market.
- Continued existence of national requirements and marks would be mitigated by
clearly defining the area regulated at the EU level. In order to respond to new and
urgent Member States’ regulatory needs, Option B would allow the Commission to
modify by subsequent legal acts the exact borderlines of the ‘harmonised zone’, to
quickly integrate those new issues, thus avoiding the needs for dedicated national
marks. Transitional provisions would ensure that the harmonised standards cited
under the current CPR would maintain their legal effect until they are replaced by
new harmonised standards developed under the revised CPR. Furthermore,
introducing provisions clarifying competences of the Member States and the interplay
between the EU and the Member States’ level, e.g. with regard to unsafe or non-
95
Regulation (EU) 2019/1009 of the European Parliament and of the Council of 5 June 2019 laying down
rules on the making available on the market of EU fertilising products and amending Regulations (EC)
No 1069/2009 and (EC) No 1107/2009 and repealing Regulation (EC) No 2003/2003.
96
Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical
devices, amending Directive 2001/83/EC, Regulation (EC) No 178/2002 and Regulation (EC) No
1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC.
97
Proposal for a Regulation of the European Parliament and of the Council on machinery products, EUR-
Lex - 52021PC0202 - EN - EUR-Lex (europa.eu).
26
compliant products (e.g. right to sue98
, minimum benchmarks for market
surveillance), is also part of this option.
- Option B is enabling a harmonised framework to assess and communicate the
environmental performance of construction products. This would take place in
coherence with a horizontal approach on the environmental performance assessment
of products, as currently developed within the SPI. General principles of such
assessment will form part of the provisions, while the operationalisation of those
principles per product family would be laid down in subsequent Commission acts, via
standardisation.
- To support the access to and use of the environmental product data, the setting up
of a digital structure fully compatible with the Digital Product Passport (as foreseen
by the parallel Sustainable Products Initiative), is of crucial importance. Easy access
to coherent and transparent information on construction products will also be
furthered through the use of digital tools, notably the Single Digital Gateway99
by
Product Contact Points for Construction and by national authorities.
- Under Option B, the revised CPR would also promote reuse of construction
products, particularly to reduce the overall climate and environmental impacts. In
particular, the CPR would support the placing on the market of certain used or used
and remanufactured construction products, allowing such products to obtain CE
marking and gain access to the European market100
.
- Option B proposes to enhance market surveillance101
by strengthening enforcement
powers and aligning the performance of different market surveillance authorities. The
strengthening of enforcement powers would entail the introduction of appropriate
sector-specific provisions to supplement the horizontal provisions contained in
Regulation (EU) 2019/1020 on market surveillance and compliance of products.
Moreover, it would aim to dispel interpretative confusion and facilitate the use of
safeguard mechanisms, by creating procedures that are more streamlined (see
Annex 12 with Refined indicative options paper for more details). The Commission
will also be empowered to adopt delegated acts on the minimum number of checks to
be performed by the market surveillance authorities of each Member State, as well as
delegated acts on the minimum human resources to be deployed by the Member
States for purposes of market surveillance with regard to products covered by this
Regulation. These latter will be accompanied by a specific assessment of the
resources implications.
98
E.g. competitors are given the right to sue non-compliant manufacturers and their distributors. See
Refined indicative options paper, p.32, https://ec.europa.eu/docsroom/documents/40762.
99
Regulation (EU) 2018/1724 of the European Parliament and of the Council of 2 October 2018
establishing a single digital gateway to provide access to information, to procedures and to assistance
and problem-solving services and amending Regulation (EU) No 1024/2012, OJ L 295, 21.11.2018,
p. 1–38.
100
See Annex 12 on Refined indicative options paper, p.9.
101
Such provisions would include stronger empowerments for market surveillance authorities related to
fact-finding (e.g. the right to confiscate samples or to seize documents related to presumably non-
compliant products) and possible punitive measures (e.g. the right to impose financial sanctions or to
exclude non-compliant operators from public tenders). See p. 32 of Refined indicative options paper,
Annex 12.
27
- In a similar vein, to further improve the enforcement at the national level, option B
foresees enhancing harmonised decision-making amongst all authorities and Notified
Bodies102
, striving for alignment across Member States and across groups of
authorities/bodies. The Notified Bodies103
would also be strengthened with a capacity
to assess the correctness of declared environmental impacts of construction
products, through either designating specialised bodies or creating a responsible sub-
group. Option B also foresees that a revised CPR improves the efficacy of Notified
Bodies104
.
- With a view to improve the clarity of the provisions, option B would aim at
enhancing the definitions in order to make them more precise and comprehensible. In
this sense, the provisions in the future CPR would also clarify e.g. the situation of 3D
printing of construction products, where currently neither the seller of the 3D printing
dataset nor the 3D printing service provider is a manufacturer in the meaning of the
CPR. It would thus render the revised CPR future-proof and create a level playing
field.
- Prefabricated small houses (including built by 3D printing) would also be covered by
the CPR. This would allow to build the same (types of) affordable houses in several
Member States.105
- Similarly, overlaps with other EU legislation will be mitigated by introducing
collision rules and ensuring coherence; additionally, wherever needed and relevant,
the scope of the applicability of the future CPR will be adjusted (e.g. in relation to
drinking water installations, currently covered under both the CPR and Drinking
Water Directive – see Annex 10 for more details). To clarify the scope of
applicability, avoid possible gaps and address the circularity objectives, option B
would make sure obligations are extended over the supply chain to suppliers of the
construction products and related services106
.
- As a solution to the lack of clarity around the meaning of the CE marking, option B
proposes the introduction of a specific marking for construction products (European
Construction Product – ECP) to clarify that the marking refers primarily to
performance declaration and not to conformity.
102
A revised CPR would set up a structured mechanism for the exchange of information between the
relevant actors. See pp. 29-30 of Refined indicative options paper, Annex12.
103
The current Notified Bodies are not necessarily competent to assess whether the calculation of
environmental impacts by manufacturers is correct or, subject to the AVCP system, to make such
calculations from scratch.
104
Information from consultation on the Analysis of the implementation of the Construction Products
Regulation (2015) suggests that there is not yet a level playing field for the designation and monitoring
of notified bodies in Europe and that the common accreditation schemes to determine the competence of
Conformity Assessment bodies for areas covered by EU community legislation envisaged in the New
Legislative Framework are not yet operational. The actions would aim at strengthening the designation
process and introducing control mechanisms for the time after the designation.
105
Up to 180 m2
usable surface and 100 m2
ground floor. Member States would have the possibility to opt
out of the application of the CPR to such houses.
106
This is linked to making the CPR application clear with regard to emerging new circular business
models.
28
- Option B foresees clarifying the simplification provisions and introducing an
empowerment for the Member States to exempt micro-enterprises not trading
across the borders from the obligations of the CPR.
- Under option B, with a harmonised framework to assess, communicate and access the
environmental performance of construction products and the promotion of the reuse
of construction products, some of the SPI’s aims could be addressed in the CPR
framework. However, option B does not allow to introduce product requirements.
These requirements would need to be set under the SPI risking a fragmentation of
legislation.
- Option B addresses the issue of inherent product safety only indirectly, as the
unblocking of the technical harmonisation system and an improved market
surveillance would improve the quality of products.
Option C – Focusing the CPR
Option C can be described as “focusing the CPR” – or reducing the scope of the
application of the CPR, freeing up capacity to improve the quality and
comprehensiveness of the remaining harmonised sphere. This option takes Option B as
starting point, meaning that it builds on the elements described in Option B. However, in
Option C the scope of application of the CPR is then limited in certain areas, depending
on the following three sub-options which can be combined:
 Sub-option C1: Limiting the CPR’s application to assessment methods: Harmonised
standards and Commission Acts containing technical specifications would include
only assessment methods for performance calculation, with no performance threshold
levels, classes nor other requirements to be established at EU level.
 Sub-option C2: Limiting the scope of the CPR: the scope of the CPR would focus on
the core areas, identified according to three criteria: (1) the coherence of Member
States’ regulatory needs, (2) the relevance for the environment or for product safety,
and (3) market relevance. These criteria are thus not only applied by the Commission
when setting priorities for preparing harmonised standards and Commission Acts
containing technical specifications as described under option B, but already by the
legislator when determining the overall scope of the CPR. Such an approach would
allow to better focus on the regulatory needs of the Member States, the disadvantage
being the lack of agility to adjust quickly the scope to respond to new harmonisation,
safety or environmental needs. Mutual recognition principles would apply outside the
core areas.
 Sub-option C3: Making the common technical language optional for manufacturers:
Member States would have the option to offer an alternative path to market access
based on national regulations and not relying on harmonised standards and
Commission Acts containing technical specifications. In such a case, manufacturers
could choose whether they use the common technical language under the CPR or the
alternative (national) path to market access. However, if a manufacturer would choose
to use the common technical language to assess and communicate performance of its
products and affix the CE marking, Member States would remain obliged to offer
market access to this product.
29
Sub-option C1 alone would relate to the SPI similar as option B. However, under sub-
options C2 and C3 a considerable number of construction products would not be
regulated by the CPR. In particular, under sub-option C2 less products would be
regulated under the CPR than today. Under sub-option C3 the same product could fall
under the CPR or national regulations depending on the choice of manufacturer how to
market it. Therefore, under C2 and C3 the SPI’s aims would have to be addressed by the
SPI directly to avoid different sustainability approaches. This would lead to a complex
regulatory structure for construction products with CPR, SPI, national regulations and the
mutual recognition principle applicable.
Option D – Enhancing the CPR
Option D, “enhancing the CPR”, is triggered predominantly by the goals of ensuring a
high level of safety and environmental protection, including circularity aspects. Option D
foresees a process to introduce product requirements dealing with product inherent
aspects when needed to protect health, safety and the environment107
. In this sense,
Option D mirrors the expected requirements applicable under the future SPI (see Annex
11 for further details). While it further builds on Option B, relying on mandatory
harmonised standards relevant for the assessment of products’ performance, it goes
beyond this through provisions that empower the Commission to set, when needed,
mandatory (minimum) requirements for products.
Beyond these horizontal environmental and product safety requirements and obligations
laid down in an Annex of the CPR, this product-specific requirements would be
formulated via three sub-options/approaches (sub-options D1 and D2 could also be
combined):
 Sub-option D1: To complement the horizontal environmental and product safety
requirements and obligations laid down in an Annex of the CPR, sub-option D1
would formulate more specific product requirements based on the New Legislative
Framework approach. For the products or product families concerned, essential
requirements would be laid down in standardisation requests addressed to CEN, who
would be mandated to develop standards providing technical details. These voluntary
standards would be harmonised by referencing in the OJEU. Following the voluntary
standards would lead to the presumption of a product's conformity with the relevant
essential requirements, but other means to prove conformity would remain possible.
As such, in the absence of essential requirements tailor-made to particular groups of
products specified in Commission acts, it may lead to lack of harmonised approach
towards assessing and demonstrating given performances. Divergence in product
requirements between products following the harmonised standards path and products
manufactured and tested according to other methods would imply additional effort
needed on the side of the market surveillance authorities.
107
In this context, important to note that inherent product safety should be distinguished from “construction
work safety”, which is framed by national legislation The competences with respect to safety are
divided between the EU and the Member States: while the EU is responsible for the rules relating to
access of construction products to the Internal Market (the marketing of construction products), the
Member States retain responsibility for safety as well as environmental and energy requirements
applicable to construction works.
30
 Sub-option D2: It would formulate product requirements based on the technical
specifications approach. Requirements would be included in harmonised technical
specifications and be developed as under Option B, meaning either by mandatory
harmonised standards (preferred) or by Commission acts containing technical
specifications (as fall back). Where product requirements will be defined, the
Declaration of Performance would be complemented by a Declaration of Conformity,
and both would be combined in one document.
 Sub-option D3: Based on the feedback received during the public consultation and
further deeper analysis of the legal constraints, a hybrid solution between sub-option
D1 and sub-option D2 has been developed while keeping the core elements of the
two other sub-options. These include:
- As in the NLF, the product requirements (“essential requirements”) would be
established by an Annex of the CPR.
- However, as the requirements have to target more than 30 widely differing
product families encompassing more than 100 product categories, they cannot be
sufficiently specific to be applied without legal uncertainty. Hence, they would
only become applicable once they have been specified for a certain product
family or category by a Commission Act. This is an element stemming from sub-
option D2.
- As these Commission Acts may not cover all relevant aspects of application,
voluntary standards based on standardisation requests may also be needed to
complement them to providing more details and, eventually, presumption of
conformity. This is an element stemming from sub-option D1 and the NLF.
Against the ambitions of the European Green Deal and particularly, the transition
towards a more sustainable built environment, Option D would be the one ensuring that
all safety, circularity, sustainability and climate related aspects can be assessed under the
CPR future framework, including the possibility to put forward product requirements.
Option D is therefore fully aligned with the SPI and does not require the SPI to prioritise
the construction products.
Option E – repealing the CPR
Option E would imply relying on mutual recognition for the internal market of
construction products. There would be no harmonisation, i.e. no common technical
language, no mandatory harmonised standards, no voluntary harmonised standards either,
no basic work requirements for construction works, no obligation to draw up a
Declaration of Performance or communicate it, no CE marking, no classes or thresholds,
no AVCP108
systems and no conditions for classification determined at EU level. This
would extend to all construction products the situation currently existing for the non-
harmonised sphere.
108
Assessment and verification of constancy of performance, corresponding to conformity assessment in
classic NLF legislation.
31
Therefore, under option E, climate and environmental performance requirements at EU
level would have to be set by the SPI. As consequence, even without a CPR there would
be EU requirements targeting construction products, this time stemming from the SPI.
While Member States would be free to come up with their own national requirements, the
principle of mutual recognition would imply that they cannot simply refuse market
access, if products from a different Member State do not comply with these requirements.
Instead, they would need to check whether the products were marketed in accordance
with the national rules applicable in the Member State in which they were manufactured.
Additionally, Member States could adopt national regulations relevant for construction
works where certain performance criteria could be envisaged for certain conditions (e.g.
reflecting climate change risks).
32
Figure 6: Comparison of options against the specific objectives
Problem drivers Specific Objectives Option A Option B Option C Option D Option E
Problem 1 drivers
-Mismatch between the
legal criteria applied
by the Commission
and the ability of
standardisers to
deliver requested
outputs
- Lack of alternative
whenever the
standardisation
process is not
delivering
- Incomplete character
of harmonisation
Problem 4 drivers
- 3D printed products
escape the scope of
CPR
Deblocking the
technical
harmonisation system
 Apply the existing
empowerments and
procedures.
 Introducing
empowerment for
the Commission
foreseeing
alternative (safety-
net) solution, to
draft technical
specifications
where no timely
and/or quality
standards are
delivered, i.e.
developing
technical content in
a close dialogue and
cooperation with
the industry and
Member States
experts and other
relevant
stakeholders;
 Member States will
be requested to
proactively identify
their regulatory
needs upfront, with
a view of reducing
the number of
 The same as option
B in the remaining
harmonised sphere.
 The same as option
B.
 As there will be no
harmonisation, only
mutual recognition,
no mandatory nor
voluntary
harmonised
standards would be
necessary.
33
iterations of
standards
developed.
To ensure safe
construction
products
 No change.  Indirectly addressed
with improved
market surveillance
and unblocked
technical
harmonisation
system.
 Bringing 3D-
printed products in
the scope of CPR
 The same as option
B in the remaining
harmonised sphere.
 Setting a dedicated
process to introduce
product inherent
safety requirements,
where needed
complemented by
more specific
product
requirements (per
categories or group
of products) by
either;
 D1 – New
Legislative
Framework
approach for
product
requirements;
 D2 – Technical
Specifications
Approach for
product
requirements.
 D3 – Hybrid of
D1/D2
 The CPR repealed
and mutual
recognition
applying, hence no
harmonised sphere.
Problem 2 drivers
- Lack of clarity of the
current provisions
- Lack of appropriate
resources to tackle the
non-compliance
Reducing national
barriers to trade for
products covered by
the CPR
 Act upon national
marks, ex-ante
processes and
verifications,
including
infringement
procedures and
support for
economic operators
 Introducing
provisions
clarifying
competences of the
Member States and
improving the
interplay between
the EU and the
Member States’
 The same as option
B but also with
changes to the
scope of the CPR to
free up capacity and
improve the quality
and
comprehensiveness
of the remaining
 The same as option
B but also covering
inherent product
safety requirements
at EU level
(horizontal
mandatory
minimum safety
requirements for
 The CPR repealed
and mutual
recognition
applying, hence no
harmonised sphere.
34
effectively acting against
infringements at
national courts.
level, e.g. with
regard to unsafe or
incompliant
products.
harmonised sphere:
 C1: Scope of the
CPR limited to
assessment methods
only (no thresholds,
classes nor other
requirements at EU
level);
 C2: Focusing the
scope on regulatory
needs of the
Member States,
with limited agility
towards new needs;
 C3: Giving the
Member States the
possibility
additionally offer
market access based
on national
regulations.
products, where
needed
complemented by
more specific
product
requirements per
categories or group
of products).
 D1 – New
Legislative
Framework
approach for
product
requirements;
 D2 – Technical
Specifications
Approach for
product
requirements;
 D3 – Hybrid of
D1/D2.
Improving
enforcement and
market surveillance
 Recommending
highly effective
default/standard
market surveillance
controls.
 Strengthening
enforcement powers
and aligning the
performance of
different market
surveillance
authorities;
 Creating more
streamlined
procedures to
address
interpretative
confusion and
facilitate the use of
safeguard
mechanisms;
 Delegated acts on
minimum number
 The same as option
B in the remaining
harmonised
sphere.B.
 The same as Option
B.
 No CPR in place,
authorities checking
whether the
products were
marketed in
accordance with the
national rules
applicable in the
Member State in
which they were
manufactured.
35
of checks
performed by the
market surveillance;
 Delegated acts on
minimum human
resources to be
deployed for the
market surveillance
of construction
products;
 Enhancing
harmonised
decision-making
amongst all
authorities and
Notified Bodies,
striving for
alignment across
Member States and
across groups of
authorities/bodies;
 Strengthening the
capacity of Notified
Bodies to assess the
correctness of
declared
environmental
impacts of
construction
products.
36
Problem 3 drivers
- Low awareness and
lack of clarity of the
simplification
provisions
Problem 4 drivers
- CPR does not foresee
broad application of
digital tools
Providing more clarity
and simplification
 No change.  Introducing an
empowerment for
the Member States
to exempt
conditionally
certain micro-
enterprises from the
obligations of the
CPR;
 Clarify the
simplification
provisions;
 Eliminating
information overlap
between the CE
marking and the
Declaration of
Performance;
 Combining the
Declaration of
Performance with
the Declaration of
Conformity;
 Enhancing the
definitions in order
to make them more
precise, thorough
and
comprehensible;
 Clarifying possible
loopholes or
overlaps with other
legislation,
including through
clear collision rules
and clarifying the
scope;
 Introducing specific
marking for
 The same as option
B in the remaining
harmonised sphere,
but also:
 C2: Focusing the
area of application
and/or scope to core
areas, hence
limiting possible
overlaps;
 C3: The possibility
of an alternative
national path to
market access is
creating new
regulatory overlaps.
 The same as option
B.
 CPR repealed, no
need for
simplification
provisions at the
EU level.
 Manufacturers have
to market products
in accordance of
national rules.
Reducing the
administrative burden,
including through
simplification and
digitalisation
37
construction
products (ECP
instead of CE
marking);
 Ensuring access to
comprehensive
information in a
digitalized manner,
through Single
Digital Gateway.
 Access to a
common database,
via Digital Product
Passport, to ensure
information is
stored in a
comprehensive and
durable manner.
Problem 4 drivers
- Inability to deliver on
the policy objectives
stemming from the
European Green Deal
and the Circular
Economy Action Plan
-Absence of references
to sustainability
performances
- Unable to cover new
business models
- CPR does not foresee
broad application of
digital tools
Contributing to the
reduction of the
climate and
environmental impact
of construction
products, including
through the
application of digital
tools
 It would not be
possible to address
environmental
performance
aspects of
construction
products or product
requirements
through the CPR
but through SPI.
Individual Member
States might
introduce additional
uncoordinated
approaches at the
national level.
 Enabling a
harmonised
framework to assess
and communicate
the environmental
performance of
construction
products;
 Possibly additional
sustainability
product
requirements from
SPI;
 Promoting and
incentivising the
reuse of
construction
products, through
communicating
their performance
down the use-chain
 The same as option
B in the remaining
harmonised sphere,
beyond this
 C1: Enabling a
harmonised
framework to assess
and communicate
the environmental
performance of
construction
products;
 C1: Possibly
additional
sustainability
product
requirements from
SPI;
 C2/C3: SPI would
have to address
environmental
 The same as option
B; plus
 Setting a dedicated
process to introduce
product inherent
requirements in
order to enhance
environmental
protection
(horizontal
mandatory
minimum
requirements for
products, where
needed
complemented by
more specific
product
requirements per
categories or group
of products) by
 No environmental
performance
requirements at EU
level stemming
from CPR but most
likely from SPI and
Individual Member
States might
introduce additional
uncoordinated
approaches at the
national level.
38
until the preparation
of used products for
re-use and their
second making
available on the
market.
performance
aspects of
construction
products or product
requirements.
either;
 D1 – New
Legislative
Framework
approach for
product
requirements;
 D2 – Technical
Specifications
Approach for
product
requirements;
 D3 – Hybrid of
D1/D2.
39
6.3. Options discarded at an early stage
Due to an extremely critical feedback and the fact that certain legally mandatory
objectives can, in the case of the CPR, not be reached by voluntary standards, the
possibility of relying entirely on voluntary harmonised standards has been limited in
terms of scope to the question whether inherent product requirements shall be established
by voluntary standards, as under option D1, and also be functionally replaced by sub-
option C3.
Moreover, the suggestion of a Member State to limit Option B to only a few core
elements has been discarded for the following reasons: there are multiple links among the
problems and objectives to be addressed. Due to these manifold interrelations, it was
necessary to consider potential mitigation for each of the numerous horizontal issues
identified. For further information, see Annex 13 on the discarded options.
7. WHAT ARE THE IMPACTS OF THE POLICY OPTIONS?
This section analyses the policy options described in the preceding section, and assesses
how they contribute to reaching the specific objectives. It presents particularly the
economic, social and environmental impacts, as well as stakeholders’ views. The analysis
is quantitative whenever possible, otherwise qualitative.
Regardless of the options, the most relevant stakeholders affected by the Regulation in
relation to obligations and compliance are the economic operators (manufacturers of
construction products). Also affected is the construction ecosystem (construction
companies and employed construction workers as the main users of the products). A
small number of construction products is sold in hardware stores. Therefore, also
consumers might be directly affected. The options have also an impact on Member
States’ authorities responsible for the supervision of the safety, environmental and energy
requirements applicable to buildings and civil engineering works.
The main costs for the manufacturers to comply with the Regulation are administrative
burden, substantive compliance costs and regulatory charges109
. While some
quantification of these costs was presented in the study110
supporting this impact
109
According to the economic impact study conducted in 2016 regulatory charges are fees applicable to the
activities of the AVCP systems, fees charged by TABs for the ETA procedure etc.
110
The study supporting this impact assessment provides relevant evidence for the analysis of the impacts
of the different options envisaged for the revision of the CPR. The study collected and complement the
available evidence for the analysis of the options and the assessment of their possible impacts.The
options have been explored in depth to assess preferences and impacts primarily via a survey among
companies and a public consultation. The survey targeted selected experts and aimed at identifying how
to address the various horizontal issues identified during the evaluation of the CPR. The public
consultation includes a broad range of respondents e.g. companies, business associations, EU citizens,
NGOs, academic institutions.
40
assessment111
, certain limitations such as low response rate and lack of detailed feedback
on the nature of the costs incurred, affected the analysis of economic impacts. Wherever
needed, this analysis is complemented with a qualitative analysis of the options. All other
costs are presented in a qualitative manner due to the lack of data.
The analysis of environmental impacts and social impacts (especially safety) was carried
out in a qualitative manner and whenever data was available in a quantitative manner.
With respect to the social impacts, benefits could not be quantified due to the missing
data on safety incidents and other data needed for a quantification of risks on health and
safety with regards to construction products. Therefore, the impact assessment also
includes non-quantified social and environmental benefits and drawbacks.
7.1. Option A – baseline (no revision)
Economic Impact
No change in the CPR implies that the costs for businesses associated with maintaining
the CPR will remain initially unchanged. The study estimated these costs for
manufacturers to be approx. 2.56 billion EUR annually112
. This corresponds to 0.6% of
the revenue of these. Previous studies of the costs for the CPR-related manufacturing
sector in the EU estimated the annual baseline costs to be between 2.6113
and 3.4 billion
EUR114
- so roughly the same magnitude.
These costs are mainly driven by the administrative burden (estimated at 900 million
EUR), substantive compliance costs (estimated at 450 million EUR) and regulatory
charges (estimated at 300 million EUR) due to CE marking and Declaration of
Performance, and compliance cost due to national requirements of around 300 million
EUR115
. These costs serve as the comparative basis for the other options in order to
provide an indication of the expected economic impacts of the different options.
The supporting study also estimated for the baseline a foregone revenue for EU
manufacturers associated with the shortcomings in market surveillance of more than
4 billion EUR annually, corresponding to a little more than 1% of the overall revenue.
The findings show that foregone revenue due to competition from non-compliant
products is substantial, whereas costs related to identifying and reporting non-compliant
competing products can be neglected as part of the aggregate result. Insufficient or
111
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report.
2021.
112
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report,
p.25. This estimate should be considered with a great degree of caution, due to the limited number of
responses received.
113
VVA Europe, the Danish Technological Institute (DTI) & the Netherlands Organisation for applied
scientific research (TNO) (2016). Final Report: Economic Impacts of the Construction Products
Regulation, p. 38.
114
Economisti Associati, Milieu & CEPS (2016). Supporting study for the Fitness Check on the
construction sector: EU internal market and energy efficiency legislation, page 49-50.
115
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report,
p. 26.
41
ineffective market surveillance appears to be the reason for this significant impact on
medium and small companies and the reason behind this might be that they have fewer
brands/products with smaller volume, compared to large companies with stronger brands
and wider portfolio116
. This makes small and medium companies more vulnerable and
exposed to a bigger impact from unfair competition.
In the online survey of 2018117
, respondents were divided about the future development
of these costs under the baseline: manufacturers and national contact points expected a
small increase in cost, while testing and certification bodies, market surveillance
authorities and end-user organisations expected a small decrease.
However, taking into account the most likely continuing malfunctioning of the
standardisation process and therefore deteriorating conditions for the internal market for
construction products, over time rising costs for all stakeholders are expected (i.e. higher
cost for manufacturers relying on the EOTA route or more national requirements
introduced). This would imply higher costs for construction with less product
choice/more national requirements.
Social impact
The current CPR is following a performance-based approach, meaning that no product
requirements for construction products are established within the regulatory framework.
Consequently, no particular impact on product safety can be identified. Inherent product
safety will continue to be dealt with in an inconsistent manner by Member States and
potentially in contrast to the objective of removing technical barriers.
This has been confirmed by the 2018 online survey, where under the baseline all
stakeholder groups expect either no (28%) or a small positive impact (26%) on health
and safety118
.
Environmental impact
As explained in the problems section, harmonisation provided by the current CPR falls
short of covering completely the Basic Work Requirements relevant for environmental
impact or sustainability, therefore the construction products are not subject to mandatory
assessment and verification of the constancy of performance in these areas. Therefore, at
best only a slightly positive environmental impact would be expected from the CPR.
In view of the political priorities of the EGD and linked initiatives, this may create an
obstacle for the sector to contribute and to benefit from the green transition, while also
impeding the national authorities from setting measures towards use of greener
construction products and greening of construction works. As possible solution, these
aspects could be addressed, if needed, under the SPI. This however, may result in
unnecessary additional administrative burden, with different aspects of the same product
116
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, p. 28.
117
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, pp. 56-57.
118
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p.60.
42
being regulated under different acts and through separate procedures. This could also put
at risk the coherence between safety and sustainability aspects which is crucial
considering the role of construction products in construction works.
Stakeholders’ views
Feedback received during the public consultation and the company survey reflects a
broad preference for the baseline (Option A) across most stakeholder groups119
. At the
same time, many of these stakeholders also wished for action to be taken to resolve the
issues linked to the implementation of the CPR120
– such action would require a solution
closer to Option B or D.
During the survey on the Refined indicative options paper, in general, participants have
shown concerns about the economic consequences that changes to the CPR (the options
apart from option A) would mean for the construction products industry. Participants
which were in favour of option A, feared that changes would delay the application of the
CPR and create difficulties on the market121
. In a similar line, stakeholders outlined that
changes in the CPR would result in the need for economic operators to mobilise further
resources at a time when most of them are weakened by the Covid-19 crisis and that most
companies in the sector were micro or small sized and changes were costly for them122
.
7.2. Option B - Repairing the CPR
Economic impact
Option B addresses all the issues identified in the evaluation as shortcomings in the
implementation of the CPR. It would therefore contribute to improved harmonisation at
the EU level, facilitating the circulation of construction products on the internal market
and benefitting their manufacturers and users. In particular, it is expected that market
access would be facilitated and the harmonisation of the internal market for construction
products would be deepened. At the same time, substantial benefits are expected to come
along with improved market surveillance and enforcement. The possibility of
introducing, by delegated acts, minimum number of checks to be performed by the
market surveillance and the minimum human resources deployed for market surveillance
of construction products is expected to significantly improve the effectiveness. Such
delegated acts will be accompanied by a specific assessment of the resources
implications.
Option B also offers some reduction of administrative burden for manufacturers by
empowering the Member States to exempt certain micro-enterprises from the obligations
119
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report,
p.30.
120
E.g. in the horizontal survey, more than two thirds (68%) of the respondents believe that interpretation
issues require a revision of the CPR either in conjunction with guidance (63%) or without any further
measures (5%). See Annex 2 for more details.
121
European Commission (2020). Review of the Construction Products Regulation (CPR) - Survey on the
Option Paper, April-August 2020 – results, Annex I on option A, pages 2, 13.
122
European Commission (2020). Review of the Construction Products Regulation (CPR) - Survey on the
Option Paper, April-August 2020 – results, Annex I on option A, page 21.
43
under the CPR, by reducing overlap between the CE (new ECP) marking and the
Declaration of Performance; allowing the DoP to be supplied electronically and by
combining the DoP with the Declaration of Conformity (DoC).
The estimates show that a regulatory shift towards Option B would lead to a total
reduction of 160 million EUR in costs annually for construction products manufacturers,
roughly corresponding to a 6% reduction compared to the baseline compliance costs123
.
This impact is driven mainly by a decrease in the administrative burden, substantive
compliance cost and regulatory charges in relation to the CE marking and Declaration of
Performance, and in substantive compliance cost stemming from reduced national
requirements. This may not be overwhelming, but nevertheless a non-negligible expected
reduction in costs.
Relying on digital tools, such as a Construction Products database or system will provide
the information along the distribution chain, increasing the transparency to the benefit of
safety and the environment and save resources of the economic operators, while also
ensuring an interface with the Digital Product Passport, ultimately improving the
system’s efficiency. Overall, Option B is expected to improve the effectiveness,
efficiency and coherence of the regulatory framework.
There appear to be significant benefits that can be reaped from improved market
surveillance, with a potential 2.5 billion EUR annually to be gained in terms of revenue,
equalling more than half the costs (burden) under the baseline. Notwithstanding the
significant uncertainties associated with this estimation due to the small number of
observations that it is based on, this would be a remarkable result. Notably, about half of
this benefit accrues to small companies, where aggregated revenue gains are estimated to
amount to roughly 1.3 billion EUR annually corresponding to 1% of the total revenue for
that group124
.
The above suggests that the improvement in market surveillance would lead to
significant benefits, which together with harmonisation of decision-making of authorities
and Notified Bodies should also enhance the legal certainty as regards the role and
obligations of economic operators and Notified Bodies. This, in turn, could increase the
assurance that compliance with the legal rules and requirements benefits the operators
and enhance the functioning of the internal market.
Social impact
Improving the market integration of construction products would contribute to enhanced
access to these products across different Member States, benefitting the users and
consumers. Thanks to the improved legal clarity of the framework and harmonised
methods for assessing and communicating environmental performance the users would
have access to reliable information on the performance of construction products,
eventually contributing to more conscious and informed choices made, particularly in
terms of construction works to be executed. Better streamlined market surveillance and
123
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report,
p.33.
124
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report,
p.35. See Annex 2 on stakeholders’ consultation.
44
enforcement is also expected to improve the reliability of performance declarations,
increasing the users’ trust.
Moreover, including in the scope of the CPR also prefabricated (small one-family)
houses would allow the creation of an internal market for entire small houses, permitting
economies of scale and increasing competition, thereby favourably influencing the
prices, ultimately fostering their affordability and deployment. Pre-fabricated houses
could also be an important factor when addressing crisis social situations, like in the
aftermath of recent weather-related disasters where citizens were in urgent need of
housing solutions.
Respondents to the public consultation125
(see also Annex 2), who prefer option B,
primarily expect it to lead to an increase in construction product innovation, construction
product safety, and economic actors’ compliance with relevant rules and regulations.
Environmental impact
A harmonised method for assessing and communicating the climate and environmental
performance of construction products would contribute to the green transition of the
sector and to a better built environment, by providing the relevant environmental data
allowing the Member States to assess the climate and environmental performance of
construction works, thereby supporting the implementation of relevant national and EU
legislation (e.g. the Energy Performance of Buildings Directive) and avoid market
fragmentation.
Respondents in the consultation126
who prefer option B primarily expect it to lead to an
increase in the sustainable use of resources for producing construction products and the
quality of the built environment in the EU.
Stakeholders’ views
The only stakeholder group preferring option B overall was EU citizens. However, in
relation to multiple elements, NGOs and public authorities also prefer Option B, this
particularly in terms of improvements on market surveillance and enforcement. Business
associations and companies/business organisations do not prefer option B altogether.
During the survey on the option paper, stakeholders pointed out that they welcomed the
Commission’s initiative to review the CPR with the aim to improve the functioning of
the single market for construction products, but the feared that a revision of the CPR
would require additional resources (manpower and finances) from industry to adapting to
new procedures and processes127
.
125
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report,
p.35.
126
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report,
p.35.
127
European Commission (2020). Review of the Construction Products Regulation (CPR) - Survey on the
Option Paper, April-August 2020 – results, Annex I on option A.
45
7.3. Option C - Focusing the CPR
Option C builds on Option B, to the extent there is compatibility between the two. Option
C includes three additional sub-options, which can be combined. The impacts of this
option can then be considered comparable to those of Option B, where compatible128
(e.g. improvements in area of market surveillance, legal clarity, simplification etc.).
At the same time, sub-option C1 would mean focusing the CPR’s scope on assessment
methods only, with no performance thresholds nor characteristics established at the EU
level. This in the end would not improve the degree of harmonisation at the EU level, nor
would it be the case when focusing the CPR on core areas only (sub-option C2); further
national provisions would emerge, thereby creating possible obstacles to the free
circulation of construction products within the EU.
Economic impact
According to the estimates of the study, option C (the three sub-options combined) would
lead to a small reduction of 23 million EUR annually in costs for manufacturers
associated with the CPR. This corresponds to less than 1% of the baseline costs of
2.6 billion EUR. Benefits (reduction of foregone revenue due to improved market
surveillance) are the same as for option B. However, these estimates should be
considered with caution as they were calculated on the basis of responses of stakeholders
preferring option C and it remains unclear to what extent these respondents reflected on
the risk that there could be more fragmentation of the internal market; hence implying
limitations on the representativeness of the data.
Option C implies limiting the scope of the CPR to assessment methods (sub-option C1)
and to core areas only (sub-option C2). As the harmonisation area covered under the CPR
would be more focused (covering less aspects compared to the baseline), further national
provisions would very likely emerge, thereby creating possible obstacles to free
circulation of construction products within the EU. Consequently, the functioning of the
internal market could be impeded. Moreover, concerns about the effectiveness of this
option might arise since there could be an indirect risk of having access to products with
varying degrees of requirements implemented which could lead to an increased need for
market control.
Under sub-option C3, the common technical language would be voluntary, meaning that
the manufacturers could choose for an alternative route to demonstrate performance
128
See Figure 6.
46
rather than the assessment method prescribed in the harmonised technical
specifications129
(if offered by the respective Member States). Manufacturers would most
likely choose this alternative route if the regulation would be lighter and if they only
would target the respective market. On the one hand this could have positive impact on
SMEs. However, on the other hand the level of protection of human safety or of the
environment could be lowered and it might disrupt the internal market.
Social impact
Due to the fact that, under sub-option C3, the Member States would be allowed to
regulate an alternative path to market access, a risk exists that users could be negatively
affected by diverging requirements followed by manufacturers who choose not to rely on
the harmonised standards. This risk would stem from allowing test methods which are
less stringent than the ones foreseen at EU level or by refraining from minimum
threshold levels, which might lead to endangering the safety of construction products and
having a negative impact on end-users health.
Due to differences in national legislations, it is expected that users will not have access to
products of the same level of performance on the market.
With respect to sub-option C3 (making common technical language optional), the online
survey results show that all stakeholder groups considered this policy option would result
in negative impacts on health and safety (39%)130
. Such negative effects would lead to a
risk of more grave accidents, with associated negative social consequences.
Environmental impact
As this approach would deprive the Commission and the Member States of the
possibility to react, in a harmonised manner, to new regulatory needs in relation to
environmental or safety needs for construction products, the risk exists that progress on
these sub-options will differ among the Member States – due to emerging national
requirements – and that the progress towards green and safe construction products will be
overall hindered.
With respect to sub-option C3 (making common technical language optional), the online
survey results show that all stakeholder groups thought this policy option would result in
a negative impact on the environment (35%)131
.
Among the feedback received on the Refined indicative options paper132
, some
stakeholders have voiced negative views on this option by stating that the advantage and
the relevance of this option for the environment or for citizens in terms of safety and
market relevance and the practical meaning of limiting the scope of the CPR is not
obvious.
129
Either by harmonised standards or by Commission acts containing technical specifications
130
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p. 83.
131
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p. 83.
132
see Annex 12
47
Overall, this option will at most only be able to partially address the goals stemming
from the European Green Deal, the Circular Economy Action Plan and other linked
initiatives, as regards to construction products. Therefore, it would have to be
complemented by the SPI covering also construction products.
Stakeholders’ views
In the 2020 survey on the Refined indicative options paper, only 11% of respondents,
including business representatives, companies, technical bodies, NGOs, and public
authorities fully or partly supported sub-option C1, 9% sub-option C2 and 9% sub-option
C3133
. In the 2020 company survey, option C was the least preferred revision option, with
the share of respondents stating their preferred option was option C varying between
6 and 11%134
. In the 2020 public consultation, option C likewise was the least preferred
revision option, with the share of respondents stating their preferred option was option C
varying between 3 and 11%.
Concerning sub-option C3, the company phone survey results showed that this approach
could potentially result in very small (<1,000 EUR per annum) per manufacturer cost
savings in all size groups and across the sector as a whole: potentially a total cost saving
of between EUR 8.5 million annually and EUR 9.5 million annually, a negligibly small
amount considering the size of the sector135
.
In addition, regarding sub-option C3, the general perception of this option was well
summarised by a market surveillance authority who stated that “making the common
technical language voluntary would not cure the conceptual defects of the CPR, but it
would increase uncertainty and create chaos”136
. In the 2020 survey, where a broad
selection of the stakeholder groups took part, the participants noted that “if the
harmonised standards become the preferred but non-exclusive means of proof, thus
making CE marking optional (not compulsory by regulation), a two-speed system would
create confusion for all stakeholders in construction”137
.
It is clear that the sub-options of this option could create, in fact, new barriers to trade
within the European internal market since there might be significant divergence in
Member States’ requirements. Among the feedback received on the Refined indicative
options paper, many stakeholders expressed that “It is not obvious what the practical
added value would be of limiting the scope of the revised regulation” and notably that
“All three options outlined by the Commission for so-called ‘focussing’ of the CPR
(option C) would significantly impact the existing internal market. Construction products
already harmonized (product categories) would be de-harmonised again. This was
133
https://ec.europa.eu/docsroom/documents/43103, questions 30, 31 and 32.
134
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report
2021, Annex 7, questions about preferred variant across the 3 elements considered individually for
option C.
135
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p.80.
136
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p.79.
137
See Results of the Survey on the Refined indicative options paper, April-August 2020, Annex III on
option C, available: https://ec.europa.eu/docsroom/documents/43103
48
considered as unnecessary as it would weaken the internal market and adversely affect all
stakeholders138
.
The overall support for the sub-options of option C is thus very limited as they are
considered to weaken the current regulatory system. The sub-options would even less fit
into a CPR framework which tries to be more ambitious regarding the European Green
Deal goals. In terms of environmental impacts and circularity of construction products,
option C would not be effective in reaching the objective and the CPR would not become
more focused in the meaning of that option.
7.4. Option D - Enhancing the CPR
Option D, building on Option B but distinguished from other options by introducing
product requirements addressing health, safety and the environment, is expected –
according to the companies preferring this option in the public consultation – to have a
positive impact particularly on safety, compliance and quality of the built environment139
.
Pursuing this option would allow a consistent approach for the environmental assessment
of construction products under the CPR and the SPI140
. As the sub-options only differ in
the path to develop the product-specific requirements, the same impact can be expected
for all three.
Economic impact
According to the estimates of the study, option D is expected to lead to an increase of
approx. 200 million EUR in costs among manufacturers associated with the CPR, equal
to approximately 8% of the baseline costs. This is due to an expected increase in costs
associated with preparing the CE marking and the Declaration of Performance. The
benefits (reduction of foregone revenue due to improved market surveillance) are the
same as for option B. However, as the concrete requirements for relevant products
(groups) will be defined only at a later stage, through Commission Acts, a more accurate
estimation of the costs incurred by the manufacturers will only be possible at a later
stage, when developing subsequent legal acts.
138
See Results of the Survey on the Refined indicative options paper, April-August 2020, Annex III on
option C, available: https://ec.europa.eu/docsroom/documents/43103.
139
Copenhagen Economics (CE), Danish Technological Institute (DTI) and Office for Economic Policy
and Regional Development Ltd. (EPRD) (2021). Supporting study for the impact assessment of the CPR
Review, p. 42.
140
This method has not yet been determined at this point in time. However, see in this context e.g.
Commission Recommendation (2013/179/EU) of 9 April 2013 on the use of common methods to
measure and communicate the life cycle environmental performance of products and organisations.
49
As Option D, similarly to Option B, addresses the main shortcomings of the current CPR
framework, including the possibility for the Member States to exclude certain micro-
companies from the CPR obligations, it would potentially enable further cost savings for
micro companies, currently facing the highest compliance burden as a share of their
turnover (estimated at 1.3% of turnover on average)141
.
Social impact
On top of the social impacts described under Option B and relevant also for Option D,
the social impact linked to the introduction of product safety requirements would imply
improving the safety and protection of end-users of construction products. This decrease
in the level of potential risks for users is driven by ensuring that the products are
appropriately assessed before they reach them.
With respect to this positive social impact of policy option D on safety (improving the
safety and protection of end-users), it is important to note that SMEs in the construction
contractors sub-sector employing less than 250 people account for approximately 91% of
all employees142
. This suggests that the majority of benefits in terms of cost savings from
a reduction in risks of accidents accrue to SMEs. This is crucial as in some Member
States, national authorities reported that safety incidents tend to be higher among
SMEs143
. In general, by improving the product safety, thereby contributing to protecting
workers from accidents and health risks, the legislation makes a positive contribution to
improving the human capital basis of the sector144
.
Environmental impact
In response to the European Green Deal objectives Option D is expected to address these
effectively, rendering the revised CPR framework future-proof as the revised CPR will
be able to deliver on broader policy priorities, particularly the green and digital transition.
Environmental impacts of Option B, i.e. offering a harmonised approach for assessing
and communicating the climate and environmental performance of construction products
and providing access to reliable and comprehensive data in terms of environmental
performance (through the Digital Product Passport) contribute to the Circular Economy
Action Plan, Renovation Wave and other linked initiatives, and are relevant also for
Option D. Additionally, Option D would ensure that protection of climate and
environment and safety would be safeguarded, by foreseeing a possibility of introducing
product requirements. It is therefore apt to reflect the framework expected to be
introduced for other products under the SPI (for more details, see Annex 11 on the
interaction between the future CPR and SPI).
As this option is the only one fully suited to effectively address the goals stemming from
the European Green Deal, the Circular Economy Action Plan and other linked initiatives,
141
VVA Europe, the Danish Technological Institute (DTI) & the Netherlands Organisation for applied
scientific research (TNO) (2016). Final Report: Economic Impacts of the Construction Products
Regulation. European Commission, p. 71.
142
RPA(2016) Supporting Study for Fitness Check on the Construction Sector – The Second Phase on EU
Environment, Health and Safety Legislation, p. 163.
143
RPA(2016) Supporting Study for Fitness Check on the Construction Sector – The Second Phase on EU
Environment, Health and Safety Legislation, p. 88.
144
RPA(2016) Supporting Study for Fitness Check on the Construction Sector – The Second Phase on EU
Environment, Health and Safety Legislation, p. 156.
50
in the context of construction products, it can ensure the full support towards circular use
of products and materials and ameliorating the built environment. Option D allows for
synergies with other initiatives, including the SPI, EPBD or transition pathways for the
construction ecosystem.
Stakeholders’ views
In the company survey and the public consultation, Option D gained relatively low
support of 13% and 16% of consulted stakeholders respectively. There was, however, a
variation among different groups of stakeholders, with NGOs preferring Option D (sub-
option D2) as compared to the other options. In both surveys, there was a stronger
preference for introducing construction product requirements via the New Legislative
Framework approach (sub-option D1) than via the Technical Specifications approach
(sub-option D2).145
7.5. Option E – Repealing the CPR
Economic impact
The stakeholders expect a large negative impact due to lacking CPR-based market
surveillance. Repealing the CPR would also imply limited free circulation of construction
products compared to the baseline. The objectives of protection of safety or environment
relevant for construction products could not be pursued in a harmonised manner without
the CPR framework being in place. Correspondingly, the main economic impact of a
repeal of the CPR is expected to be a deterioration of the market surveillance situation. A
substantial majority of respondents consider that repealing the CPR would result in
increased fragmentation of the market and in Member States putting up new or
strengthened barriers146
. The interviewed stakeholders state that insufficient market
surveillance and enforcement prevents benefits in terms of opening up markets and
levelling the playing field for competitors from materialising fully147
. Also, a
deterioration in the market surveillance situation can lead to market distortion and
145
Sub-option D3 was developed after the company survey and the public consultation. Therefore, it is not
included here.
146
Evaluation of Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing of
construction products and repealing Council Directive 89/106/EEC, SWD(2019)1770, p.44.
147
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p. 84.
51
mistrust in the system among economic operators. A lack of trust is one of the many
obstacles that could lead to negative impacts on cross-border trade.
In the 2018 study, this option was assessed negatively with regard to all assessment
parameters. Most stakeholders (companies, technical bodies, public authorities) think it
would produce negative impacts, resulting in compliance cost increases and a reduction
in market opportunities for companies. While the impact on product quality is uncertain,
respondents believe the repeal would be detrimental for product information, surveillance
and enforcements costs148
. Many respondents stated in free text that a repeal of the CPR
would lead to a collapse of the EU Single Market for construction products149
. In the
online survey, one market surveillance authority said that “the fact that mutual
recognition didn't work was the very reason why the CPD was introduced in 1989;
mutual recognition was not strong enough a tool to eliminate barriers to trade.”150
Based on the company phone survey, it is estimated that this option could lead to
negligible cost increases (<1,000 EUR per annum) per manufacturer for manufacturers
across all size groups. For the manufacturing sector, option E could result in cost
increases of between EUR 5.6 million and EUR 6.4 million per annum (not reflecting the
costs of the market fragmentation).151
However, the few respondents who prefer variants
of option E expect it primarily to lead to a small decrease in administrative burden152
.
Social Impact
The results from the online survey confirm that all stakeholder groups consider this
option to produce either very little change (i.e. product quality) or have a negative impact
on health and safety (72%)153
. Negative effects on health and safety would manifest in a
higher number of grave accidents, with associated negative social consequences. Further,
the deterioration in the level of safety might increase the risk of safety hazards for end
users.
148
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p. 99, p.104.
149
Copenhagen Economics (CE), Danish Technological Institute (DTI) and Office for Economic Policy
and Regional Development Ltd. (EPRD) (2021). Supporting study for the impact assessment of the CPR
Review. Annexes: First Findings report, page 143.
150
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Evaluation, p. 94.
151
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p. 98.
152
Copenhagen Economics (CE), Danish Technological Institute (DTI) and Office for Economic Policy
and Regional Development Ltd. (EPRD) (2021). Supporting study for the impact assessment of the CPR
Review. Annexes: First Findings report, page 143.
153
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p. 99.
52
Environmental impact
The results from the online survey confirm that all stakeholder groups consider this
option to produce either very little change (i.e. product quality) or have a negative impact
on the environment (71%)154
.
Ultimately, among the feedback received on the Refined indicative options paper, many
stakeholders, including business representatives, companies, technical bodies, NGOs etc.,
have voiced their negative views such as: “repealing the CPR, in addition to being a
significant step back for the safety of European Citizens, would be a missed opportunity
to raise to the challenges of the European Green Deal”. Therefore, the environmental
sustainability would have to be addressed by the SPI.
Stakeholders’ views
Among all responses received during the public consultation and the company survey,
option E was considered as preferred option by the lowest share of respondents, in all
stakeholder groups and across all sub-options155
. This reflects the adverse consequences
to which repealing the CPR could potentially lead.
Further, stakeholders expected that option E would have limited or no impact on key
parameters except for some expecting a reduction in the administrative burden (although
it should be kept in mind that this is based on replies from respondents preferring option
E). Moreover, it is important to acknowledge that companies who have cross-border
trade would have to comply with the national legislations of each country they trade with,
resulting in an increase in administrative burdens for them. However, while
administrative burdens directly associated with the CPR would disappear, other cost
factors (or even market losses) were considered likely to emerge.
154
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute
(DTI), Global Data Collection Company (2018). Supporting study for the Review of the Construction
Products Regulation: Impact Assessment, p. 99.
155
See Annex 2 on consultation activities.
53
8. HOW DO THE OPTIONS COMPARE?
8.1. Comparison of the options
This chapter provides an overview of the effectiveness and efficiency of the policy
options with regards to the specific objectives that triggered the initiative.
The three key assessment criteria are understood as follows156
:
 Effectiveness: the degree to which the policy options allow achieving the general
and specific objectives;
 Efficiency: the likely costs and benefits of the policy options on different
stakeholders;
 Coherence: the fitting of the goals of other legislations and initiatives.
Table 2 summarises the effectiveness of the policy options in terms of achieving the
specific objectives.
Table 2: Effectiveness of the policy options against the specific objectives
Unblocking
the technical
harmonisation
system
Reducing
national
barriers
to trade
for
products
covered
by the
CPR
Improving
enforcement and
market
surveillance
Improving
simplification,
clarity and
reducing
administrative
burden
Ensure safe
construction
products
Contributing to
the reduction of
the climate and
environmental
impact of
construction
products
Net effect
Option
A
0 0 0 0 0 0 0
Option
B
++ ++ +++ ++ ++ ++ ++
Option
C1
+ 0 ++ + - + +
Option
C2
+ + + + -/+ + +
Option
C3
+ + ++ + -- - +
Option
C1-C3
+ + + + -- - +
Option
D1
++ +++ +++ ++ +++ ++ +++
Option
D2
++ +++ +++ ++ +++ +++ +++
Option
D3
++ +++ +++ ++ +++ +++ +++
Option
E
+++ -- -- -- --- --- --
Legend: 0- almost no impact/no change; + reduced positive impact; ++ positive impact; ++ very
positive impact; - reduced negative impact; -- negative impact; --- very negative impact
156
Better regulation guidelines. https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-
law/better-regulation-why-and-how/better-regulation-guidelines-and-toolbox_en.
54
The following Table 3 presents an overview of the policy options in terms of
effectiveness (how each option achieves the specific objectives), efficiency (cost-benefit
analysis) and coherence with other pieces of the EU law.
Table 3: comparison of the policy options against the Better Regulation criteria
Effectiveness Efficiency Coherence
Option A 0 0 0
Option B ++ ++ ++
Option C1 + + +
Option C2 + + +
Option C3 + 0 0
Option C1-C3 + 0 0
Option D1 +++ ++ +++
Option D2 +++ ++ +++
Option D3 +++ +++ +++
Option E -- --- ---
Legend: 0- almost no impact/no change; + reduced positive impact; ++ positive impact; ++ very
positive impact; - reduced negative impact; -- negative impact; --- very negative impact
Effectiveness
In terms of harmonisation and reduction of national barriers to trade, a fully
operational CPR under Option B will provide better clarification of the scope of
harmonised sphere at the EU level, address the current underperformance of
standardisation system and prevent national requirements. In this sense it outperforms
Option C (where the CPR would cover less aspects than under option B, hence more
national provisions would create obstacles), but is less effective than Option D which, on
top of addressing the current issues also adds product requirements; as such, Option D
will provide an even stronger level of harmonisation, contributing to improved free
circulation of construction products. Option E would eliminate the harmonisation as no
regulatory framework at EU level would be set.
In terms of market surveillance and enforcement, simplification and legal clarity
Options B, C and D have a similar degree of effectiveness, because they build on the
same set of measures as explained previously for Option B. In particular, option D has
the highest degree of effectiveness, followed by option B, and then option C. Option E
would imply repealing of the regulatory framework at the EU level, hence addressing the
above specific objectives is not feasible.
In terms of contributing to the reduction of the climate and environmental impact of
construction products, Option D offers the possibility to create inherent environmental
product requirements, making the regulatory system complete: construction works
related environmental performance aspects can already now be regulated by thresholds,
but not the inherent environmental aspects. Effectiveness of this option in terms of
environment is thus highest, as compared with other options.
Moreover, the impacts in terms of effectiveness of option D in the context of pursuing
the political objectives set by initiatives related to sustainability of products should be
considered as very significant, even against possible costs related to the implementation
of this option. As construction products absorb more than 40% of all raw materials in
55
terms of quantity, the revised CPR will have a systemic impact on the European Green
Deal and Circular Economy Action Plan as such. This not just by a possibility to
determine a minimum quota of recycled materials to be used, but also by many other
fine-tuned, product-specific requirements still to be developed under the future
Commission acts and technical specifications. The uptake of progressive, environment-
friendly regulatory solutions in the CPR is thus crucial for the success of the EGD and
the CEAP.
In contrast, option A can hardly address the sustainability aspects, option C only partly.
Option B is less effective than option D as it does not foresee the possibility of
introducing inherent product requirements. Therefore, options A, B and C would rely on
the SPI taking over – at least partially – to reach the same ambition in a less effective
way.
In terms of ensuring safe construction products, Option D offers the possibility to
create inherent safety product requirements, making the regulatory system complete:
safety performance aspects related to construction works can already now be regulated
by thresholds (e.g. smoke detectors), but not the inherent safety aspects (e.g. need for an
anti-entrapment device in a door). Effectiveness of this option in terms of product safety
is thus highest, as compared with other options.
Efficiency
In terms of costs and benefits, the study supporting the Impact Assessment estimated that
Option B is most efficient. This estimate should be considered with a great degree of
caution as it was based on the feedback from consulted stakeholders and often limited in
terms of representativeness, due to limited number of responses received. Negative
impacts in terms of efficiency of Option D were considered to be driven particularly by
the expected increase of costs incurred due to the regulatory change from baseline to
Option D. However, it needs to be stressed that such concrete costs cannot be estimated
at this stage yet, because concrete product requirements would still need to be developed,
where relevant, at a later stage. A targeted assessment of the costs and benefits will only
be feasible at that point. Furthermore, the study did not take account of the SPI. For
addressing the climate and environmental impact of construction products, option D is
much more efficient than a combination of the other options with the SPI. Therefore,
option D is considered as the most efficient option.
Finally, it needs to be stressed that such concrete costs cannot be estimated at this stage
yet, because concrete product requirements would still need to be developed, where
relevant, at a later stage. A targeted assessment of the costs and benefits will only be
feasible at that point.
Coherence
In terms of coherency with other existing EU legislation, and as explained in the
Problems section (Problem 3), without any intervention, overlaps will continue to exist
and are expected to increase, particularly in relation to the future SPI. In addition, the
CPR framework could hardly address the goals of the EGD. Option B foresees
significant improvements in these respects, by addressing the scope of harmonisation,
providing for clear definitions and collision rules, thereby eliminating overlaps, except
with the SPI, or loopholes. It would also bring the CPR more in line with the EGD.
Option D, which builds on the measures foreseen in Option B, responds favourably to the
objectives of the EGD and CEAP, by anticipating, and – where relevant – contributing to
the actions stemming from linked policy initiatives. It becomes more pressing to avoid
overlapping requirements in the context of the SPI, expected to provide for the setting of
56
specific requirements linked to a list of aspects set out in the CEAP. Thus, Option D
offers the most coherent approach for a future-proof CPR. For more details on the CPR-
SPI interface, see Annex 11.
8.2. Preferred option
In light of the analysis in the previous chapters, Option D is considered the preferred
option, in particular in view of the objectives to be achieved. Option D provides the
necessary means to achieve the objectives satisfactorily by addressing the main
shortcomings of the current CPR framework, including standardisation, national barriers
to trade, ineffective market surveillance, lack of clarity and of simplification; while at the
same time, it is the only one fully suited to effectively address the goals stemming from
the European Green Deal, the Circular Economy Action Plan and other linked initiatives,
in the context of construction products.
The very significant benefits and effectiveness of the Option D, as described above,
substantiate its choice as the preferred one. Option D represents the approach with the
highest degree of effectiveness and coherence, even though it may lead to additional
costs for the economic operators. The additional costs would be justified by the positive
impacts on economic operators, consumers and the environment in the long run. These
costs cannot be quantified at this stage but will need to be considered when developing
the technical specifications.
As explained in the previous section, Option D builds on Option B, including the need of
mandatory harmonised standards for assessment of products’ performance. A
complementary element, clearly distinguishing it from option B, is the possibility of
setting mandatory product requirements in the CPR.
Out of the three sub-options D3 is the preferred one as it can be seen as enhancement of
the sub-options D1 and D2. The approach is in practice similar to the one of the EDD and
of the future SPI.
While this preferred option may bring about some additional costs for the manufacturers
(see section 7.4), it is expected that in other areas it will generate costs savings. In
particular, given the expected better performing standardisation process supporting the
CPR framework, potential cost savings in terms of administrative burdens would occur.
The decrease in ambiguity in the provisions should allow cost savings due to reduced
overlaps and duplication of obligations with other EU legislation. A small decrease in
regulatory charges and compliance costs is expected as a result of the clarification and
enhancement of the harmonisation scope at the EU level. Altogether, Option D is
expected to result in a net reduction of administrative burden of approx. 180 million EUR
(for more details, see Annex 3). Finally, due to the anticipated better market surveillance
and enforcement, a reduction of foregone revenue of roughly 2.5 billion EUR for
manufacturers of compliant products is expected.
9. REFIT (SIMPLIFICATION AND IMPROVED EFFICIENCY)
The assessment of the economic impacts demonstrates several cost savings with respect
to the preferred option, namely option D. It is expected that the costs savings would be
57
for manufacturers and would include a decrease of administrative burden, regulatory
charges and compliance costs. Furthermore, for manufacturers falling under the
simplification provisions, costs savings are also expected due to decrease in the level of
ambiguity. These costs savings could potentially balance to some extent the costs which
are expected with this option. This is important for manufacturers in the long run.
Table 4: REFIT Cost Savings – Preferred Option(s)
REFIT Cost Savings – Preferred Option(s)
Description Amount Comments
Well-performing standardisation process
supporting the CPR framework
n/a Cost savings in terms of administrative
burdens expected for the standardisers,
manufacturers and construction ecosystem
Less ambiguity in the provisions and application
of digital tools (e.g. Digital Product Passport)
n/a Cost savings expected particularly for
manufacturers due to reduced overlaps and
duplication of obligations with other EU
legislation , as well as due to application of
digital tools for e.g. products declarations and
access to information
Clarification and enhancement of harmonisation
scope at the EU level would, to a significant
extent, make national requirements redundant
n/a Small cost saving in regulatory charges and
compliance costs expected
Better market surveillance and enforcement 2.5 billion EUR 157
Cost saving (reduction of foregone revenue)
coming from improved market surveillance
Net reduction of administrative burden 180 million EUR Net cost savings, see Annex 3
10. HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED?
Policy monitoring and evaluation going forward related to the revision of the CPR would
be centred around the core issues to be addressed by the revision. The successful
implementation of the revised Construction Product Regulation depends on several
factors. This chapter proposes several indicators to monitor and evaluate the
implementation of the changes. More indicators could be formulated depending on the
contents of the final revision of the CPR, if any.
Monitoring of the implementation of the (revised) CPR would start right after the
adoption of the CPR, focused on its implementation. Table 5 presents suggested key
indicators for monitoring and evaluation.
The starting point for indicators in the area of standardisation is the number of references
of harmonised standards (hENs) cited in the OJEU out of the total number of hENs
submitted to the Commission for citation. This indicator allows to calculate the
percentage of citation and to better monitor and identify the reasons for non-citations or
withholding citation, if any are still present. Also, an improvement of data completeness
will be to add the number (or share) of rejections by the Commission of proposed
157
Estimate by the study supporting this Impact Assessment. This represents a benefit for producers of
compliant products (to the detriment of producers of non-compliant products). While this is a
redistribution, improved market surveillance implies that the products sold are more compliant, hence it
could be considered a real benefit.
58
standards. Moreover, the average length of the process from issuing a standardisation
request by the Commission to delivery of draft standards by CEN is important as it will
allow to assess whether one of the problems identified by stakeholders of the
standardisation process, namely lengthiness of the standardisation process, is
solved/improved. This can also be compared with the work in EOTA using similar
indicators.
Another indicator of success would be data for environmental and product safety
information, and environmental and product safety requirements incorporated in
technical specifications. The number of technical specifications (or product families)
with environmental information and requirements, and their relative importance in terms
of environment is a crucial factor to evaluate the extent to which environmental
consideration has increased as a result of the review of the CPR.
To measure an improved market surveillance the Commission could consult the Member
States. A successful implementation would be supposed to lead first to detecting more
non-compliant construction products and then to a reduction of this number. An indicator
for monitoring could be the level of trust among economic operators, for which an
evaluation after four to five years could provide information through stakeholder
consultations. Relevant stakeholders could be consulted to evaluate the impact of the
revision, in particular with respect to market surveillance.
An expected impact of the preferred option is an improvement of the functioning of the
internal market for construction products. This should have a positive impact on cross-
border trade within the EU. Accordingly, the data on trade values and trade volumes can
be compared to the figures before the review of the CPR and to the production data.
59
Table 5: Suggested key indicators including source and timing of data collection
Area Indicator Unit Source and timing
Standardisation
Number of cited references to hENS
out of number of hENS submitted to
COM for citation
Number and %
Internal Commission data; to
be tracked by Commission
(as is done already)
Timing: bi-annual or annual
Number (or share) of rejections by
the COM of proposed standards
Number and % Same as above
Average length of process from
issuing a standardisation request by
the Commission to delivery of draft
standards by CEN
Months Same as above
Number of cited EADs out of number
of EADs submitted to COM for
citation
Number and % EOTA and Commission data
Market surveillance
and enforcement
Non-compliant construction products
detected (with reference to CPR)158
Number of products/
cases
Data from MS, reported to
Commission
Timing: annual
Production and cross-
border trade of
construction products
Production and cross-border trade of
construction products in/within the EU
(proxy indicator for the extent of trade
barriers)
Volume in EUR
(adjusted for inflation, if
relevant)
Volume in kg could also
be a relevant unit
Dedicated study (external or
internal) could be foreseen,
based on EU trade statistics.
Timing: Baseline (year 0)
and follow-up (year 4, in
connection with evaluation)
Sustainability and
product safety
Environmental and product safety
information incorporated in technical
specifications
E.g. Number and share
of technical
specifications (or
product families) with
environmental or
product safety
information and their
relative importance in
terms of environment
and health and safety
Data from draft/published
standards as tracked by
Commission services
Environmental e.g. on minimum
recycled content) and product safety
requirements (incorporated in
technical specifications
E.g. Number of
technical specifications
(or product families)
with environmental and
product safety
requirements and their
relative importance in
terms of environment
and health and safety
Data from draft/published
technical specifications as
tracked by Commission
services
Evaluation
It is proposed that an evaluation of a revised CPR should take place within 4 to 5 years
after the date of entry into force.
Such an evaluation should, in particular, assess the effectiveness of the revised legislation
– with a special, but not exclusive, focus on the issues covered by the suggested
indicators above - as well as its efficiency, relevance, coherence and EU value added.
Options for further modification, update or enhancement of requirements should be
considered by the evaluation, as is standard for any full-scale evaluation.
158
This indicator would need to be elaborated in more detail after careful consideration of the fact that an
increase in the number of non-compliance cases might indicate a more effective market surveillance and
enforcement, whereas the ultimate goal would be to decrease the number of infractions.
60
ANNEX 1: PROCEDURAL INFORMATION
1. Lead DG, Decide Planning/CWP references
Lead DG: Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs.
Decide Planning reference: PLAN/2017/972
2. Organisation and timing
The European Commission announced in the ‘Clean Energy for All Europeans’
Communication of 30 November 2016 that the then ongoing consultation process with
stakeholders (in particular the technical platforms launched as a follow-up to the CPR
implementation report of 7 July 2015) might possibly lead to revision of the CPR. The
CPR review was initially planned as a back-to-back evaluation and impact assessment
when included in the planning on 29 March 2017.
This approach was presented in the inception impact assessment, published in June 2017.
However, considering the evidence collected through the supporting studies and public
consultation, the Commission decided to decouple the retrospective and prospective
assessments. In fact, the assessment proved to be more complicated than expected. This
was partly due to the complexity of the CPR itself, but also due to the high expectations
expressed by the stakeholders and Member States, in particular the political pressure
caused by a case pending at that time at the European Court of Justice . These combined
factors made clear that it was necessary to establish a clear and comprehensive picture of
the present situation before identifying all of the key horizontal issues and the assessment
of potential options for the future.
The evaluation of the CPR was published on 24 October 2019, together with the Report
on the relevance of the tasks of the European Organisation for Technical Assessment
(EOTA).
Two dedicated meetings with the Member States took place on 4 March159
and
22 September 2020160
. A so-called “Refined indicative options paper”, aimed at
presenting the options for a potential revision of the CPR, was published on 8 April
2020161
(see Annex 12). A survey on it took place between 15 April and 31 August
2020162
. A revised Inception Impact Assessment was published on 17 June 2020163
.
Feedback on this IIA was gathered in the period between 17 June 2020 and 19 August
2020. Dedicated Q&A sessions for stakeholders were organised on 22 June, 6 July and
20 July 2020. A technical stakeholders’ conference on the CPR revision was organised
on 7 September 2020164
. A public consultation followed in the period between
4 September 2020 and 25 December 2020.
159
DocsRoom - European Commission (europa.eu).
160
DocsRoom - European Commission (europa.eu).
161
DocsRoom - European Commission (europa.eu).
162
https://ec.europa.eu/docsroom/documents/43103.
163
Ares(2020)3153709.
164
https://ec.europa.eu/docsroom/documents/43001.
61
An inter-service steering group (ISSG) was set up in September 2019 to follow the
process of developing a study165
launched in support of the Impact Assessment and the
preparation of the Impact Assessment itself. The group included the following services:
Secretariat-General, Legal Service, DG Energy, DG Environment, DG Climate Action,
DG Employment, social affairs and inclusion, DG Competition, DG Justice and
consumers, DG Research and innovation, Joint Research Centre.
The ISSG met on 25 September 2019 (kick-off meeting), 21 November 2019 (inception
report), 19 February 2020 (first progress report), 8 December (second progress report),
5 February 2021 (first findings report), 29 April 2021 (draft final report), 19 May 2021
(draft Impact Assessment), 15 June 2021 (Impact Assessment) and 30 November 2021
(revised IA).
The ISSG was consulted on the consultation strategy (25 June 2020) and on the questions
for the study validation workshop (4 February 2021). The validation workshop took
place on 24 March 2021.
3. Consultation of the RSB
An upstream meeting took place on 17 March 2021.
Feedback from the Regulatory Scrutiny Board (RSB) was sought on the way to construct
and compare the policy options as well as more general issues related to objectives,
impacts and evidence.
The Impact Assessment was discussed at a meeting with the RSB on 22 July 2021.
Following the negative opinion of the RSB from 26 July 2021, changes were made to the
Impact Assessment report in order to reflect the recommendations of the Board. Table 6
below presents an overview of the RSB's comments and how these have been addressed.
The revised Impact Assessment was resubmitted to the RSB on 16 December 2021. The
RSB delivered a positive opinion with reservations on 26 January 2022. Table 7 below
presents an overview of the RSB’s comments and how these have been addressed.
Table 6: RSB recommendations I and how they have been addressed
RSB recommendations Revisions introduced
(B) Summary of findings
(1) The report does not sufficiently analyse and
substantiate with evidence the key problems it aims
to tackle. It is not sufficiently clear to what extent
the Sustainable Product Initiative (SPI) determines
the scope and measures of the initiative and how
this interaction is reflected in the baseline.
The problem analysis has been complemented by
available evidence from studies in section 2. It has
been identified clearly the most important problems
to be addressed. The report has established clear
links between the problems and the drivers.
The links and planned interaction with the SPI
initiative and its interaction with the preferred
option have been better explained in the text and in
Annex 11.
(2) The report does not provide a clear presentation
of the options and how they differ from each other.
The available policy choices are not brought out
clearly enough. The links between the options, the
specific objectives and the problem drivers are not
The following have been added in section 6:
- A clearer presentation of the options has
been provided;
- The narrative of the report has been made
more comprehensible in order to explain to
165
Supporting study for the impact assessment for the CPR Review 738/PP/GRO/IMA/19/1133/11072.
62
well established. the non-expert reader the available policy
options.
- In addition to a much clearer presentation
of the problem drivers and the general and
specific objectives in section 5, Figure 4
(the intervention logic) was strengthened
by linking problems, problem drivers,
objectives and options.
(3) The analysis of impacts on administrative costs,
simplification and SMEs is underdeveloped.
In Section 7, the impacts of the various options on
SMEs have been systematically described and
assessed fully using the available evidence.
An annex on SME-specific impacts (SME test) has
been developed and included in the report (Annex
5).
(4) The comparison of options does not reflect all
available evidence, it is not coherent and its
conclusions are not clearly justified.
The statements and arguments of the report have
been backed-up with further facts and evidence.
Namely, additional information from the following
studies has been added to the various sections and
annexes:
- the 2016 Supporting studies for the Fitness
Check on the construction sector;
- the Commission’s July 2016
implementation report on the CPR;
- the REFIT Platform recommendations;
- several Judgments of the Court of Justice
of the EU;
- the 2021 EP own initiative report on the
implementation of the CPR;
- the 2018 supporting study for the Review
of the Construction Products Regulation;
- the 2016 Report on the Economic Impacts
of the Construction Products Regulation.
(C) What to improve
(1) The report should better explain what the key
problems are and how they inter-relate. It should
better explain what aspects of the Regulation’s
underperformance are within the scope of this
revision and which are not.
The problems with highest priority to be addressed
and their inter-relation have been better explained in
section 2. Also, the explanation of the drivers of the
problems was enhanced in section 2.
The report further elaborated on the links between
the problems and the drivers in section 2.
(2) The report should make better use of the
evidence available in the implementation and
evaluation reports and the support studies. It should
present the key findings upfront, so that the reader
knows from the problem description what the key
design and implementation issues with this
Regulation are. It should substantiate with evidence
the environmental protection and sustainability
problems related to construction products, so that
the need for harmonised environmental
performance methods can be properly assessed. It
should provide clear evidence for the need for
action in the safety area and as regards pre-
fabricated small houses.
The following has been added:
- Further qualitative and quantitative data
and analysis has been added in the section
3.2 and section 7;
- A new Annex 5 (SME test);
- The problems description in section 2 has
been complemented by additional findings
and evidence from various sources (e.g. the
2019 evaluation, the 2018 Evaluation,
supporting study, the REFIT Platform
recommendations);
- Evidence on the environmental protection
and sustainability problems related to
construction products in section 2 and a
new Annex 9 (environmental impacts of
construction products);
- Evidence on the need to act regarding the
safety of construction products, as well as
regards the pre-fabricated small houses;
- In section 2, the report has further
63
underlined new general objectives linked to
the new EU policy initiatives on
environmental sustainability and how they
relate to construction products.
(3) The report should better explain the planned
interaction with the SPI. It should consider possible
options to avoid loopholes and overlaps with the
SPI. It should clarify how the SPI is reflected in a
consistent manner in the baseline scenario and in
the presentation and comparison of options.
The baseline scenario now already presumes the
introduction of the SPI. It is described how all
options interact with the SPI. The coverage of
environmental performance and product
requirements by relevant options is described in
Section 6, while the interface between the future
CPR and the SPI has been explained in details in
Annex 11. Furthermore, in Annex 11, an example,
namely bricks, has been elaborated with the aim to
illustrate in a comprehensive and exhaustive way
the planned interaction with the SPI.
(4) The report should provide a clearer presentation
of options covering the full set of policy choices. It
should clearly explain the difference, and
interdependence, between the options as well as the
measures that would be part of each option. It
should be clear how the policy options each address
the objectives and there should be a clear link
between objectives and problems. It should better
explain how the options incorporate the new EU
sustainability ambitions set out in recent initiatives.
The following have been added in section 6:
- More comprehensive and coherent
overview of the options and their measures,
including where relevant the sustainability
ambitions set out in recent initiatives.
The following have been added in sections 5 and 6:
- Figure 4 (the intervention logic) was
strengthened by linking problems, problem
drivers, objectives and options;
- Figure 6 detailing the clear link between
problems, objectives and options. In
particular, the figure illustrates the
comparison of the options against the
specific objectives;
- In section 7 (impacts of the options), an
explanation whether each option addresses
the new EU sustainability initiative;
- In section 7, in the case when an option
integrates the new initiatives, there is a
description how/to what extent the option
encompasses the new EU sustainability
initiative;
- In section 7, after each sub-section, tables
illustrating and summarizing the negative
and the positive impacts of each option.
In section 8, the following have been added:
- a comparison of the options against the
specific objectives has been introduced, to
show the effectiveness of every option
(Table 2);
- a comparison of the policy options
against the Better Regulation criteria
(Table 3).
(5) The report should analyse more thoroughly the
impacts of the different options in terms of costs,
burden reduction and simplification potential.
Given that SMEs play a particular role in the
construction product sector and that the current
ineffective exemption for SMEs is part of the
problem, the impacts of the various options on them
should be systematically assessed. If sector
competitiveness is considered as a problem to be
tackled, the report should assess the corresponding
impacts of the options. The report needs to present
the costs better and should clearly summarise them
The following elements have been added in
section 7:
- More in depth analysis of the impacts of
the different options in terms of economic,
social and environmental aspect has been
added, including an assessment of the costs
and implications on administrative burden;
- The impacts of the various options on
SMEs have been systematically assessed;
- An annex 5 with the SME test was
developed;
- After each option’s impact, a table clearly
64
in the cost/benefit table in annex, while clarifying
who has to bear the costs.
presenting the benefits and the costs to
different stakeholders;
- The impact of the options on
competitiveness has been taken into
account, wherever relevant;
- Table showing the overall comparison of
the options, including, but not limited to
the comparison of the impact of each
option in terms of effectiveness, efficiency
and coherence;
- In Annex 3, the methodology used to
estimate the direct benefits in terms of
improved market surveillance was
described.
(6) The report should strengthen the comparison of
options and the analysis leading to the choice of the
preferred option. It should use all available
evidence to present a coherent analysis of the
implications of the different options, in comparison
with a dynamic baseline. It should avoid relying
almost exclusively on stakeholder views. The report
should justify how it aggregates scores across the
assessment criteria. The costs and benefits of the
preferred option need to be more clearly identified
and its choice better justified.
The comparison of the options and the analysis
leading to the choice of the preferred option have
been strengthened in section 8 by adding findings
and evidence from various sources (e.g. the 2016
Supporting studies for the Fitness Check on the
construction sector, the 2018 supporting study for
the Review of the Construction Products
Regulation, the 2019 evaluation).
The cost and the benefits of the preferred option
have been clearly identified and presented in table in
section 8.
Section 8 has been elaborated in more detail to
clearly present the analysis of the options against the
criteria of effectiveness, efficiency and coherence
(including Table 2). Separate Table 3 on
effectiveness of the options as compared with the
specific objectives has also been introduced in this
section.
(7) The report should make better use of the
feedback from stakeholders and in particular
illustrate better how different stakeholder groups
view the policy options and the associated costs and
benefits.
In section 7, the analysis of the impacts of the
different options has been improved by
distinguishing between the different stakeholder
groups to the maximum extent of the available
evidence (e.g. manufacturers, users, consumers,
citizens).
65
Table 7: RSB recommendations II and how they have been addressed
RSB recommendations Revisions introduced
(B) Summary of findings
(1) The report is not sufficiently clear about the
problems that the initiative aims to tackle and how
these link to the objectives and options. It is not
clear how the baseline scenario, options and impact
analysis reflect and articulate with the expected
effects of the parallel SPI.
In section 2, the report has established clearly the
problems that the initiative aims to tackle and how
these link to the objectives and the options. In
addition, it has been explained how the baseline
scenario, options and impact analysis reflect and
articulate with the expected effects of the parallel
SPI.
(2) The report is not sufficiently clear whether all of
the options identified can tackle all of the problems,
whether the selection of measures contained in the
preferred option is the best performing combination
and whether all measures are necessary.
In section 8, the analysis has been complemented
by information concerning whether all of the
options identified tackle all the problems. The
report has established whether the selection of
measures contained in the preferred option is the
best performing combination.
(3) The report is not sufficiently clear on the net
benefits, efficiency advantages and justification of
incorporating sustainable product requirements into
the CPR, compared to addressing them in the
horizontal SPI framework as for other products.
A clear presentation of the net benefits, efficiency
advantages and justification of incorporating
sustainable product requirements into the CPR has
been offered in the report.
(4) The summary comparison of options is not
sufficiently clear or robust on the cost and benefit
estimates of the options. Some of the effectiveness
and efficiency scores are not convincingly justified.
The summary comparison of the options in section
8 has been strengthened in order to ensure the
robustness of the cost and benefit estimates of the
options. Moreover, the effectiveness and efficiency
scores have been additionally justified.
(C) What to improve
(1) The problem section should be further improved
to ensure problems and their drivers are clearly
differentiated and that the issues identified are
sufficiently explained. The report should be more
explicit about the safety issue and clarify whether it
is (i) a self-standing problem beyond the functioning
of the internal market and harmonising the way
performance is communicated across Member States
(and therefore to be tackled by the options) or (ii) an
issue already covered by other EU instruments. In
this context, the explanation and evidence related to
the inclusion of 3D printed products as well as
prefabricated small houses should be clearer.
The narrative of the problem section 2 has been
made more comprehensive to ensure that the
problems and their drivers are differentiated
enough.
The narrative provided in the report on the safety
issue has been made more explicit with the aim to
clarify that inherent product safety (safety aspects
not related to the safety of construction works), is
not dealt with in a consistent manner for
construction products and is largely left to the
Member States, despite Article 114 TFEU (the
legal basis for the current CPR) requiring to strive
for a high level of protection of safety and
consumers.
(2) When describing the difficulties with
implementation and enforcement of the current
CPR, the way the problem is described implies that
clearer CPR provisions would solve this. However,
the issue of lack of administrative capacity in
Member States is not addressed. The report should
be clearer about how a revised CPR would address
this core problem, especially if the framework
becomes more complex as proposed, since it would
not only regulate how information on the products is
presented across the EU but also include
sustainability requirements.
The statements and the arguments of the report with
respect to the issue of lack of administrative
capacity have been completed by explaining how
the revised CPR would address this core problem,
i.e. through empowerment for delegated acts on
minimum number of checks to be performed and on
minimum human resources to be deployed for
construction products.
(3) The report should be clearer about the links
between options, problems and objectives. For
instance the report should clarify whether: (i) sub-
option C3 (making the common technical language
The report has established clear links between the
options, problems and the objectives. It has been
clarified whether sub-option C3 would not
undermine the objective related to the functioning
66
voluntary) would not undermine the objective
related to the functioning of the single market, (ii)
sub-option D1 (voluntary standards leading to a
presumption of conformity, while allowing for other
means to prove conformity) would not further lead
to diverging approaches and make it more difficult
for the objective related to market surveillance
authorities to be achieved.
of the single market, and whether sub-option D1
would not further lead to diverging approaches and
thus make it more difficult for the objective related
to market surveillance authorities to be achieved.
(4) While the report provides a better explanation of
the envisaged interaction between the future CPR
and the SPI, it still needs to better explain how the
SPI is reflected in a consistent manner in the
baseline scenario and in the presentation, assessment
and comparison of options.
The explanation of the envisaged interaction
between the future CPR and the SPI has been
strengthened by additional explanations on how the
SPI has been reflected in the baseline scenario and
in the presentation, assessment and comparison of
the options.
(5) The report should clearly explain whether the
options considered are realistic and can effectively
deliver all the objectives of the proposed initiative
(i.e. product safety, sustainability). It should also
explain whether the selection of measures contained
in the preferred option is the best performing
combination and whether all envisaged measures are
necessary. It should identify the hybrid sub-option
D1/D2 upfront and then compare it with the two
stand-alone sub-options, including in terms of
adding legal complexity. It should provide more
detail on the envisaged empowerment of Member
States to exempt micro-enterprises and explain how
this would be in line with the envisaged single
market objectives.
The analysis of the options in section 7 has been
complemented by information whether the options
could effectively deliver all the objectives. The
selection of measures contained in the preferred
option has been further proved with explanations to
be the best performing combination. In section 6,
the hybrid option D1/D2 (now D3) has been
identified upfront and then compared with the two
stand-alone options. Additional information has
been provided on the envisaged empowerment of
Member States to exempt micro-enterprises.
Further explanations how this empowerment would
be in line with the envisaged single market
objectives have been presented in the report.
(6) The report should better explain how the
simplification provisions would be implemented and
enforced compared to the current situation, to ensure
they actually deliver the described benefits. It should
be clearer on the net benefits and efficiency gains of
incorporating sustainable product requirements into
the CPR compared to regulating these issues
exclusively in the horizontal SPI framework as for
other products. It should better explain how
coherence would be ensured and legal complexity
avoided.
The procedure with respect to the way that the
simplification provisions would be implemented
and enforced, compared to the current situation has
been outlined.
Information on the net benefits and efficiency gains
of incorporating sustainable product requirements
into the CPR compared to regulating these issues
exclusively in the horizontal SPI framework as for
other products has been clarified in the report.
Explanation on how coherence would be ensured
has been provided.
(7) While the comparison of options has improved,
the report still needs to better justify and substantiate
the scores presented in the comparison overview
tables. For instance, it is not clear why (i) option D
receives a higher score in contributing to the
reduction of the climate and environmental impact
than option B (in combination with the horizontal
SPI framework) or (ii) option B is considered more
efficient than D given that efficiency arguments are
considered as the main reason for bringing
sustainability requirements under the remit of the
CPR. Overall, the report should provide a clearer
comparison of the costs and benefits of the options,
including quantitative estimates as available to
support the efficiency analysis.
The scores presented in the comparison overview
tables in section 8 has been justified and
substantiated with additional information.
A clearer comparison of the costs and benefits of
the options has been elaborated in section 8.
(8) While the report is transparent about the overall
preference of stakeholders for the baseline scenario,
it should more explicitly discuss the reasons why
The analysis in section 7 has been backed-up with
the reasons, outlined by various stakeholders in the
survey on the options paper, why they did not
67
there is only very limited support for any of the
policy change options (e.g. empowering the
Commission, integrating sustainability
requirements), given the expected significant
benefits.
support the policy change options, given the
expected significant benefits.
4. Evidence, sources and quality
Available report and studies, in particular:
- Copenhagen Economics, Danish Technological Institute and Office for Economic
Policy and Regional Development Ltd. (2021). Study supporting the Impact Assessment
for the CPR revision, Final report. Available at: https://op.europa.eu/en/publication-
detail/-/publication/20f672b4-1503-11ec-b4fe-01aa75ed71a1/language-en
- European Commission (2019b). Commission Staff Working Document
SWD(2019)1770 - Evaluation of Regulation (EU) No 305/2011 laying down harmonised
conditions for the marketing of construction products and repealing Council Directive
89/106/EEC. Available at: https://ec.europa.eu/docsroom/documents/37827.
- European Commission (2019c). COM(2019) 800 Final. Report from the Commission to
the European Parliament and the Council on the outcome of the evaluation of the
relevance of the tasks set out in Article 31(4) that receive Union financing pursuant to
Article 34(2) of Regulation (EO) No 305/2011 of the European Parliament and of the
Council of 9 March 2011 laying down harmonised conditions for the marketing of
construction products and repealing Council Directive 89/106/EEC. Available at:
https://eur-
lex.europa.eu/legalcontent/EN/TXT/?qid=1571917158693&uri=COM:2019:800:FIN.
- European Commission (2020a). Refined indicative options for the review of the
Construction Products Regulation. Available at:
https://ec.europa.eu/docsroom/documents/40762.
- European Commission (2020c). Review of the Construction Products Regulation (CPR)
- Survey on the Option Paper, April-August 2020 – results. Available at:
https://ec.europa.eu/docsroom/documents/43103.
- VVA, JIIP, Danish Technological Institute and GDCC (2018a). Supporting study for
the Review of the Construction Products Regulation: Evaluation. European Commission.
Available at: https://op.europa.eu/en/publication-detail/-/publication/e771a8cf-ed42-
11e8-b690-01aa75ed71a1/language-en.
- VVA, JIIP, Danish Technological Institute and GDCC (2018b). Supporting study for
the Review of the Construction Products Regulation: Impact Assessment. European
Commission. Available at: https://op.europa.eu/en/publication-detail/-
/publication/57fd5ffaed41-11e8-b690-01aa75ed71a1/language-en.
Use was made of expert advice, in particular through the following channels:
- The CPR review technical platforms: six meetings were held between March and
September 2020, with Member State representatives, business associations, companies,
technical bodies and testing bodies. The following topics were addressed:
68
standardisation, simplification, information needs, coexistence of EU and national
systems, environmental requirements and the future of EOTA166
.
- A validation workshop gathered 225 participants on 24 March 2021, including Member
State representatives, business associations, companies, technical bodies and testing
bodies. The workshop presented and validated the draft findings and conclusions from
the study.
- Economisti Associati, Milieu and CEPS, with contributions from BPIE and DBRI
(2016) Supporting study for the Fitness Check on the construction sector: EU internal
market and energy efficiency legislation. Available at:
https://ec.europa.eu/docsroom/documents/19343
- RPA(2016). Supporting Study for Fitness Check on the Construction Sector – The
Second Phase on EU Environment, Health and Safety Legislation. Available at:
https://ec.europa.eu/docsroom/documents/19661
- VVA, DTI and TNO (2016). Economic Impacts of the Construction Products
Regulation. Available at: https://ec.europa.eu/docsroom/documents/20903
- Refit platform recommendations. Available at: https://wayback.archive-
it.org/12090/20200221170910/https://ec.europa.eu/info/law/law-making-
process/evaluating-and-improving-existing-laws/refit-making-eu-law-simpler-and-less-
costly/refit-platform/refit-platform-recommendations-and-other-work_en
- BRE, Ecorys, and Vito (2016), Supporting study for the evaluation of the relevance of
EOTA tasks. Available at: https://op.europa.eu/en/publication-detail/-
/publication/62e85006-d313-11e6-ad7c-01aa75ed71a1
- RPA(2015). Analysis of the implementation of the Construction Products Regulation.
Available at: https://op.europa.eu/en/publication-detail/-/publication/d3449aa6-8775-
11e5-b8b7-01aa75ed71a1
- Centre for Industrial Studies (2017). Cross-border trade for construction products.
Available at: https://ec.europa.eu/docsroom/documents/27301
- Centre for Industrial Studies (2020). EADs and ETAs: Added value to the construction
sector. Available at:
https://www.eota.eu/sites/default/files/uploads/EOTA%20positions/2020-csil-eota-
report-0109.pdf
Report from the Commission to the European Parliament and the Council on the
implementation of Regulation (EU) No 305/2011 of the European Parliament and of the
Council of 9 March 2011 laying down harmonised conditions for the marketing of
construction products and repealing Council Directive 89/106/EEC, COM/2016/0445
final, 7.7.2016.
Judgement of 27 October 2016, James Elliot Construction, C-613/14,
ECLI:EU:C:2016:821,
166
Minutes available at: Review of the CPR | Internal Market, Industry, Entrepreneurship and SMEs
(europa.eu).
69
http://curia.europa.eu/juris/document/document.jsf?text=&docid=184891&pageIndex=0
&doclang=en&mode=lst&dir=&occ=first&part=1&cid=5620375.
Judgement of 13 June 1958, Meroni v High Authority, C-10/56, ECLI:EU:C:1958:8,
https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:61956CJ0010&from=EN.
Judgement of 5 September 2012, Parliament v Council, C‑355/10,
ECLI:EU:C:2012:516, paras. 64-82,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=126363&pageIndex=0
&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=935739.
Judgement of 22 January 2014, UK v Council and Parliament, C-270/12,
ECLI:EU:C:2014:18, paras. 41-55,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=146621&pageIndex=0
&doclang=en&mode=lst&dir=&occ=first&part=1&cid=5618770.
Report on the implementation of Regulation (EU) No 305/2011 laying down harmonised
conditions for the marketing of construction products (the Construction Products
Regulation), 2021, https://www.europarl.europa.eu/doceo/document/A-9-2021-
0012_EN.html.
70
ANNEX 2: STAKEHOLDER CONSULTATION
In the context of the impact assessment study on the revision of the Construction
Products Regulation (Regulation (EU) No 305/2011) various consultation activities were
conducted between October 2019 and December 2020. The aim was to assess the
potential areas of revision and the impacts of the suggested policy options on different
stakeholder groups. This Annex presents the results of the consultation activities carried
out.
The consultation activities167
included a horizontal online survey (survey on horizontal
issues), a company survey and a public consultation. The horizontal survey targeted
selected experts and aimed at identifying how to address the various horizontal issues
identified during the evaluation of the CPR in order to collect input to be used for the
further refinement of the draft options. With respect to the company survey, the survey
targeted companies relevant to the construction products market and therefore the
questionnaire was sent out to economic operators in the construction products sector.
Concerning the public consultation, the consultation was publicly accessible, thus also
open to companies, as well as any other types of respondents.
In addition, two ad hoc meeting with Member States’ experts on the Review of the CPR
took place in the year 2020. The goal of the first meeting in March was to discuss this
process and to answer questions about the options paper distributed ahead of the meeting.
In the second meeting, in September, the Commission services aimed at giving the floor
to Member States’ experts to collect their views on the four main agenda topic: Scope
and relationship with other EU law, Harmonised sphere, national law and information
needs, Annex I (basic requirements for construction works), Environmental
requirements.
1. OVERVIEW OF THE PARTICIPANTS
For all consultation activities, the main stakeholder groups addressed were:
 European technical bodies and associations (EOTA and “other” incl. consumer
and standardisation organisations) and other stakeholders involved in
standardisation;
 Companies/manufacturers, importers and distributors;
 Consumer associations;
 European/international organisations (industry associations);
 Market Surveillance Authorities;
 National authorities;
 Notified bodies;
 Others, such as citizens and other NGOs;
167
Copenhagen Economics (CE), Danish Technological Institute (DTI) and Office for Economic Policy
and Regional Development Ltd. (EPRD) (2021). Supporting study for the impact assessment of the CPR
Review.
71
 Workers/professionals’ associations.
217 potential respondents were invited to participate in the horizontal survey on
October 11, 2019. The survey closed on October 31, 2019.
The survey on horizontal issues gave 83 complete answers and thus a response rate of
38%. The largest group of organisations that have participated were the national public
authorities (without Market Surveillance Authorities) (27 %), while Industry
Associations were represented with 24% and Market Surveillance Authorities with 11%.
4% of the total participants were manufacturers (individual economic operators).
The “other” category (12 respondents) varied widely; 7 were individual
consultants/experts, and the rest included 1 research institute, 1 consumer association, 1
crafts association, 1 professional association and 1 European stakeholder association
(type not specified).
Figure 7 below summarise the participation of the different stakeholder groups in the
horizontal survey.
Figure 7: Distribution of respondents by organisation in the survey on horizontal issues
With respect to the geographical distribution of the participants, the largest number of
participants came from Belgium with 30 participants (36%) and Germany with 10
participants (12%). Participation from other countries was between 0 and 4 participants.
It should be noted, however, that among the 30 respondents based in Belgium, 20 were
European/international organisations (industry associations), and another 5 were other
types of European technical bodies and associations (EOTA and “other” incl. consumer
and standardisation organisations).
72
The Company survey was launched on Monday 10 August 2020 and invitations were
distributed to 1,200 companies’ info/main contact email-addresses. The sample of 1,200
firms was selected to correspond to the above target criteria for types of relevant
economic operators and firm sizes (based on number of employees), as well as a country-
representation of respondents from all EU27 Member States, the UK, Norway and
Switzerland. The Company survey was closed on 30 October 2020.
In addition, invitations were shared with 125 national and European business
organisations in mid-September 2020, asking them to circulate the invitation to their
member companies. In addition, the European Commission forwarded invitations to the
companies that had registered for the Online CPR Revision Technical Stakeholder
Conference on 7 September. The last two extensions turned out to be particularly
effective at increasing the number of companies responding to the survey. In total,
12,304 invitations were sent to companies (not including the business organisations and
the outreach facilitated by the Commission) – manufacturers of construction products,
distributors of construction products, construction companies, designers and raw material
suppliers around the EU, the UK, Norway and Switzerland. Thus, the number of
invitations increased tenfold compared to the initial planned outreach to 1,200
companies.
In total, 150 completed questionnaires were received, corresponding to a response rate of
approximately 1.2 per cent. However, out of the 150 respondents, 8 were business
associations and these are subsequently not included in the figures and the analysis.
Furthermore, the results focus on companies from the EU27 Member States, with results
including both EU27 companies and non-EU companies reported separately. Thus, in
total, the central sample consisted of 131 companies from Member States.
Figure 8: Distribution of respondents by type of economic operator in the company
survey
The respondents across types of economic operators were distributed as shown in Figure
8. Besides manufacturers a considerable number economic operators from upstream and
downstream participated.
73
Figure 9: Distribution of respondents by firm size (based on number of employees and
turnover)
With regards to firm size, approximately 48% of the respondents are microenterprises,
small enterprises medium-sized enterprises (SMEs), as shown in Figure 9.
Regarding the geographical spread, Figure 10 reveals that companies from Germany are
the most represented in the sample, with 28% of the respondents. Italy was the country
with the second highest number of respondents, followed by Austria, Belgium, Poland
and Portugal. There were no respondents from Croatia, Cyprus, Czech Republic, Estonia
and Slovakia.
Figure 10: Distribution of respondents by country of headquarters
The Public Consultation was launched on 4 September 2020 and was open until
25 December 2020 (16 weeks). The public consultation was publicly accessible, thus also
open to companies, as well as any other types of respondents.
There were in total 263 respondents, out of which 23 citizens (21 EU individuals and
2 non-EU individuals. Out of those, 9 respondents chose to give their input via the
74
shorter questionnaire, whereas 14 opted for the longer, more detailed questionnaire.
Thus, in total 254 respondents gave their input via the longer questionnaire.
Companies/business organisations were the most represented stakeholder groups
representing 37% of the answers (n=97), followed by business associations with 33%
(n=87), EU citizens with 8% (n=21), public authorities with 7% (n=19), non-
governmental organisations (NGOs) with 3% (n=8), academic/research institutions,
consumer organisations, environmental organisations, non-EU citizens and trade unions
represented between 1-4 respondents each and 7% selected “other” as their type of
respondent(n=19).
With regard to the country of origin of the respondents, 85% (n=223) of the respondents
reported an EU Member State as their country of origin, while 15% (n=40) were from
non-EU countries.
The distribution of respondents by country of origin was as follows: 23% (n=60) of
respondents indicated Germany as their country of origin, 18% (n=48) Belgium, 10%
(n=25) Italy, 7% (n=19) Norway, ~5% (n=14) France, ~5% (n=14) Switzerland and ~5%
(n=13) Spain. These 7 countries represented 73% of the replies. The other 27% were
from Poland (9 respondents), Austria (8 respondents), Czech Republic (7 respondents),
Portugal (7 respondents), Sweden (7 respondents), Netherlands (6 respondents),
Denmark (5 respondents), the United Kingdom (5 respondents), Hungary
(3 respondents), Ireland (3 respondents), Romania (2 respondents), Bulgaria
(1 respondent), Canada (1 respondent), Croatia (1 respondent), Estonia (1 respondent),
Finland (1 respondent), Greece (1 respondent), Liechtenstein (1 respondent) and the
United States (1 respondent).
Concerning the size distribution of responses from companies, 46% (n=45) of the
company respondents have 250 employees or more, 22% (n=21) have 50-249 employees,
18% (n=17) have 1-9 employees, and 14% (n=14) have 10-49 employees. Thus, 54% of
the company respondents were SMEs.
2. SUMMARY OF RESULTS
With respect to the underlying survey methodology for the company survey and public
consultation, the method used was Choice modelling (CM)168
. A fundamental reason for
using choice modelling for providing new insights into economic operators’ preferences
and valuations of the revised policy options is that it enabled, at a minimum, to establish
a ranking of preferences for the options being put forth by the Commission, alongside
estimations of their relative values. This allowed to establish which options are most and
least preferred and, importantly, by how much. The core of the questionnaire was the
same for the two main surveys, namely the paired comparison part, where respondents
were asked to compare the different options.
168
Choice modelling (CM) relates to a set of survey methods that use sets of options, or choices, to obtain
information from respondents. As such, CM is a subset of stated preference methods – the difference being
that preferences are obtained indirectly, as opposed to directly asking for valuations. The big advantage
associated with this method is that it is possible to identify individuals’ valuations for goods and services
for which where there is no market price and individuals find it difficult to directly place a ‘true’ value on
the good’s or service’s worth.
Copenhagen Economics (CE), Danish Technological Institute (DTI) and Office for Economic Policy and
Regional Development Ltd. (EPRD) (2021). Supporting study for the impact assessment of the CPR
Review, Annex VI: Results of the horizontal survey (Inception report), page 116.
75
This report provides a short overview of the consultation activities with regards to the
policy options assessed. A more detailed information is provided in the Supporting study
for the impact assessment of the CPR Review169
.
2.1 The horizontal survey
The evaluation of responses to the horizontal questionnaire yielded strong support for the
CPR’s goal to ensure the free circulation of construction products in the Single Market.
On a scale from 0 to 3, where 0 implies “no importance at all” and 3 implies “absolute
importance”, 75% of respondents selected 3, while another 18% selected 2.
Interestingly, 53% of respondents also deemed it of absolute importance (i.e. a 3 on the
scale) that the CPR should ensure the health and safety of EU citizens, while another
33% selected 2. Lastly, 37% of respondents selected 3, and 36% of respondents selected
2, regarding the importance of the CPR to protect the environment. While these three
policy goals may not always be mutually compatible, the results indicated that at least
73% of respondents found it at least important that the CPR addresses each goal.
Furthermore, an overwhelming majority of experts consulted (80%) expressed support
for the common technical language for assessing the performance of construction
products – i.e. the current approach – in order to achieve the free circulation of
construction products. As only 3% of respondents supported mutual recognition as the
best way to achieve free circulation, an overwhelming majority was against a repeal of
the CPR. At the same time, more than two thirds (68%) of the respondents believed that
interpretation issues170
required a revision of the CPR either in conjunction with
guidance171
(63%) or without any further measures (5%).
2.2 The company survey
The purpose of the Company survey was to assess how the Refined indicative policy
options for the CPR, prepared and developed by the European Commission and informed
inter alia by the horizontal survey among technical stakeholders during the inception
phase of this project, were expected to impact firms in the European construction
products sector.
The variants of the baseline policy option A were the most preferred across all elements
(in element 11 (New business models), “I do not know/Indifferent” was however the
most commonly selected answer). On average, variant A was chosen as the most
preferred variant by 40% of the respondents across all the 13 elements in which it was
available to select. The variants of policy option B were the second most preferred
variants. The variants of policy option D were the third most popular variants. Policy
option C contained three sub-options C1, C2 and C3. Variant C1 was chosen as the most
169
Copenhagen Economics (CE), Danish Technological Institute (DTI) and Office for Economic Policy
and Regional Development Ltd. (EPRD) (2021). Supporting study for the impact assessment of the CPR
Review.
170
Interpretation issues: there are differences in the way Member States, economic operators and Notified
Bodies interpret some of the CPR Articles.
171
Guidance elaborated at EU level exclusively.
76
preferred variant by 3% of the respondents in the element in which it was available to
select. On average, variant C2 was chosen as the most preferred variant by 4% of the
respondents across the 3 elements in which was it available to select. On average, variant
C3 was chosen as the most preferred variant by 2% of the respondents across the
3 elements in which is it available to select. On average, the variants of policy option E
was chosen as the most preferred variant by 2% of the respondents across all the
13 elements where it was available to select. On average, 21% of the respondents
selected “I do not know/Indifferent” across all 13 elements.
Concerning preferences across types of economic operators, manufacturers tended to be
more in favour of the variants of the baseline policy option A, compared to the other
types of operators. Across all elements, 54% of manufacturers selected variants of option
A as their preferred variant, while 26% of other types of operators selected variants of
Option A as their preferred variant. However, variants of option A were still the most
preferred also among other types of operators, save for the very high share (47%) on
average selecting “I do not know/Indifferent”. The second most preferred option among
manufacturers was variants of option B, preferred on average by 25% of manufacturers
(and alternative B1 was preferred by 26% in element 13 (circular economy), compared to
3% preferring alternative B2 in that element.
With respect to preferences across firms of different sizes, Figure 11 summarises the
average preferences of all variants across all policy options, across the different size
classes of companies. It is worth to keep in mind that manufacturers make up 10% of the
microenterprises (including independent professionals/self-employed), 56% of the small
enterprises, 76% of medium-sized enterprises and 84% of the large enterprises, in the
sample.
Figure 11: Average preference ranking across all 13 elements, by different firm sizes
Overall, the survey data suggested that economic operators were broadly in favour of the
current CPR, but they noted that there were issues that needed to be solved. Primarily,
77
this concerned issues related to the standardisation process. If legal revision was needed
to solve the issues, economic operators seemed to prefer that the issues were repaired
without a fundamental change of the underlying principles of the CPR (i.e. a preference
for policy option B if the CPR was to be revised). Compared to the baseline option A,
respondents who preferred variants of option B expected it to bring increases in,
primarily, construction product safety, economic actors’ compliance with relevant rules
and regulations, sustainable use of resources for producing construction products, cross-
border trade in construction products within the EU Single Market and competition
among manufacturers of construction products in the EU.
There was only limited support for enhancing the CPR by introducing EU-wide product
safety requirements (option D), and very limited support for focusing the CPR by means
of limiting the scope of the CPR (option C). However, the respondents who preferred
variants of options D and C typically expected them to lead to larger impacts than those
that preferred option B, compared to the baseline option A. Respondents preferring
variants of option D expected it to increase construction product safety, compliance with
relevant rules and regulations, quality of the built environment in the EU, cross-border
trade of construction products in the EU Single Market and competition among
manufacturers of construction products in the EU.
Respondents who preferred variants of option C (where variants of Option C2 – focusing
the CPR to core areas only – are the most preferred) primarily expected it to lead to an
increase in construction product innovation, competition among manufacturers of
construction products, cross-border trade of construction products in the EU Single
Market, construction product safety, competitiveness of SME manufacturers of
construction products vis-à-vis large manufacturers and compliance with relevant rules
and regulations.
The strongest individual result of the survey was that repealing the CPR was not
preferred by the economic operators. Many respondents stated in free text that a repeal of
the CPR would lead to a collapse of the EU Single Market for construction products.
However, the few respondents who preferred variants of option E expected it to lead to a
decrease in administrative burden for companies and an increase in cross-border trade of
construction products in the EU Single Market. They also expected it to lead to a
decrease in competitiveness of SME manufacturers of construction products vis-à-vis
large manufacturers.
2.3 The public consultation
Generally, the result of the public consultation showed that a large majority of
stakeholders rejected repealing the CPR (i.e. policy option E). Within each stakeholder
group, this variant was the least preferred by at least 76% of the respondents in all
elements. Numerous respondents stated in free text that a repeal of the CPR would lead to
a collapse of the EU Single Market for construction products. Nevertheless, the few
respondents who preferred variants of option E (on average across elements only 0-6% of
the respondents within each stakeholder group) expected it essentially to lead to a small
decrease in administrative burden, and a very small increase in construction product
safety.
Mainly, business associations, manufacturers of construction products, raw material
suppliers and trade unions were in favour of the current CPR (i.e. baseline policy option
A, no revision of the CPR but improvements to the CPR system to be made under the
78
current rules and available mechanisms). It was the most preferred variant for all
elements except element 6 (market surveillance and enforcement). Nevertheless, several
stakeholders preferring option A noted that there were issues that needed to be resolved.
However, these respondents expressed concerns regarding the risks of a lengthy and
complicated revision process.
With regard to the other options, a considerable part of respondents preferred revision of
the CPR (i.e. options B, C and D). Principally, this was the case regarding market
surveillance and enforcement (50% prefer revision), Scope of EU harmonisation (45%),
environmental aspects (45%), CE marking and DoP (44%), and Notified Bodies (43%).
The preference for revision was lowest regarding EOTA and TABs (11%), new business
models (27%) and the Standardisation process (30%).
There was an almost equal preference for enhancing the CPR with EU-wide construction
product requirements (i.e. policy option D) and for repairing the issues without a
fundamental change of the scope and underlying principles of the CPR (i.e. policy option
B). Among those supporting option D, there was a substantially stronger preference for
introducing construction product requirements via the New Legislative Framework
approach (i.e. sub-option D1) than for the Technical Specifications approach (i.e. sub-
option D2).
Option C (limiting its scope to testing methods and/or to core areas, and/or to make the
common technical language optional for manufacturers) was preferred by a lower share
of respondents than the other revision options (D and B).
Figure 12 summarises the average preferences of all variants across all policy options, for
the different types of respondents including also different sub-types of companies.
Variants corresponding to Option E were strongly rejected. No group of respondents had
an average preference for the variants corresponding to Option E above 11%, and most
had a preference of 0-2%.
A majority of business associations, manufacturers of construction products, raw material
suppliers and trade unions tended to prefer variants corresponding to the baseline policy
option A.
A majority of academic/research institutions, consumer, environmental and non-
governmental organisations, construction companies, designers, distributors of
construction products, EU and non-EU citizens, Other, Other types of companies not
related to the construction sector, Other types of companies related to the construction
sector, and public authorities tended to prefer variants corresponding to the three policy
options for revising the CPR, i.e. options B, C and D.
From the responses to the open consultation, four main dividing lines could be derived.
The first dividing line was between respondents wishing to maintain harmonisation
legislation for construction products and those preferring, either expressly or implicitly,
to rely on the principle mutual recognition, which would be the consequence of repealing
the CPR (option E). The vast majority of all stakeholders wished to maintain
harmonisation legislation for construction products; they rejected the repeal option. Many
respondents stated that a repeal of the CPR would lead to a collapse of the EU Single
Market for construction products. However, the few respondents who preferred variants
of option E expected it primarily to lead to a small decrease in administrative burden, and
a very small increase in construction product safety.
79
The second dividing line concerned the development of the harmonised technical
specifications and seemed to be between the preference for the current system based
solely on mandatory harmonised standards and the preference for adding a fall-back path
towards technical specifications by Commission acts (option B and those based on it). A
common characteristic that was observed amongst those who preferred either of the
options A and B was a positive perception of the ‘common technical language approach’
and of the high degree of stakeholder involvement in the development of technical
specifications.
A third dividing line concerned the extent of the harmonisation. While the current
harmonisation for construction products was considered ‘exhaustive’, the different
variants of option C would result in less exhaustive harmonisation. Both options B and D
would seemingly maintain the principle of exhaustive harmonisation. A vast majority of
all respondents seemed to reject the reduction in harmonisation, which would be the
result of option C.
The fourth dividing line was between the pure common technical language approach (no
product requirements, only common methods and criteria) on the one hand and the
product requirement approach on the other, whilst the latter was only deemed to be
complementary in option D.
80
Figure 12: Preferred variants by the different types of respondents across all elements
81
ANNEX 3: WHO IS AFFECTED AND HOW?
1. Practical implications of the initiative
The estimates on costs and benefits of the preferred option (Option D) presented in this
Annex are based on three aproaches:
- Quantitative estimates on direct effects from the accompanying studie172
- Qualitative estimates on indirect benefits building on these and economic analysis
of the Commission
- Calculations based on the available information and the knowledge of the
Commission team responsible for the CPR using the tools from the Commission’s
Better regulation toolbox – November 2021 edition173
.
The study supporting this Impact Assessment expected that option D would lead to an
increase in the costs for manufacturers associated with the CPR. The expected cost
increase is driven by an increase in substantive compliance costs, administrative burden
and regulatory charges in relation to CE marking and Declaration of Performance (DoP),
to a small degree offset by cost reductions related to national requirements and product
safety requirements. It should be noted that the study did not cover relevant changes in
the legal text such as the the declaration of environmental information, circular economy
clauses, the additional provisions for reused products and the new database/system to
register declarations of performance and conformity.
The largest sector-wide impact is expected for medium sized companies, where the
change towards option D is estimated to increase costs, on aggregate, by 211 million
EUR for manufacturers corresponding to 0.19% of the revenue among medium
companies in the sector. The corresponding cost increase among large companies is
estimated to amount to, on aggregate, 48 million EUR, 0.03% of revenue. Meanwhile,
the cost among small companies is estimated to decrease, on aggregate, by 58 million
EUR, 0.05% of revenue. It should be noted that these figures are based on a rather
limited number of replies in the context of the supporting study and should therefore be
considered best available estimates and be considered with appropriate caution as regards
their accuracy.
The expected cost decrease among small companies is somewhat counterintuitive and is
particularly inconsistent with the expectation among medium-sized and large companies
of substantial cost increases. The study supporting this Impact Assessment has provided
no obvious explanation for this, other than perhaps the uncertainties associated with the
projections due to a relatively small number of observations received.
Beyond this, the study expected substantial benefits of potentially 2.5 billion EUR
annually of an improved market surveillance (see table 8).
172
Copenhagen Economics, Danish Technological Institute and Office for Economic Policy and Regional
Development Ltd. (2021). Study supporting the Impact Assessment for the CPR revision, Final report.
173
https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-
and-how/better-regulation-guidelines-and-toolbox_en
82
The revision of the CPR will lead to indirect benefits, which could not be quantified,
notably an increased safety of construction products, an increase in economic actors’
compliance with relevant rules and regulations, more cross-border trade in construction
products within the EU Single Market and more innovation.
After the positive opinion with reservations of the RSB on 26 January 2022 (see
Annex 1) the administrative burden and adjustment costs of all newly introduced,
changed or abolished obligations of the legal draft for the CPR revision were calculated.
For this the Commission’s OIOO (one in one out) online calculator tool based on the EU
standard cost model was used. The estimates were based on Eurostat data, previous
reports developed in the context of the CPR e.g. previous Impact Assessment and EOTA
report174
or in the context of other regulations e.g. Inception Impact Assessment on the
Single Digital Gateway175
and the knowledge of the responsible Commission team as
there were no further data sources available for this exercise.
The calculations add up further direct annual benefits of more than 200 million EUR
annually stemming mainly from the circularity provisions expected to facilitate
consumers’ (building owners or facility management services) interaction with
construction products. Further, the CPR revision will save administrative burden of
around 630 million EUR annually compared with additional administrative burden of
around 450 million EUR. Altogether, there will be an annual net reduction of
administrative burden of companies of around 180 million EUR. On the cost side direct
annual adjustment cost of around 420 million EUR were identified and around 19 million
EUR indirect adjustment costs.
The most relevant introduced/changed or abolished obligations identified during the
OIOO calculations are as regards the administrative burden:
 Additional information to be provided by the manufacturer as regards
environmental performance:
With the update of the harmonised standards under the revised CPR the manufacturers
will have to provide information on the environmental performance of their products. A
pertinent number of companies will be subject to this obligation and will need external
support for the calculation and verification. Assessments are expected to be performed
every 5 years and the cost per company will shrink when using the relevant provisions
for sharing calculations. The administrative burden is estimated at 330 million EUR. As a
few manufacturers have already undertaken these calculations voluntarily, the
administrative burden after business as usual costs is estimated at 310 million EUR.
 Introduction of product requirements and declaration of conformity
For some construction products product requirements linked with a declaration of
conformity will be introduced. The gross burden per product is similar compared to the
environmental performance. However, manufacturers may collect the required
174
EOTA – 2020 Annual Report | EOTA
175
2017_grow_012_single_digital_gateway_en.pdf (europa.eu)
83
information together. Therefore, the administrative burden after business as usual costs is
estimated at 26 million EUR.
 Additional validation of the provisions related to the custom-made non-series
product
The revised CPR will introduce an external assessment of custom-made non-series
products. This action will apply to a limited number of manufacturers, which in many
cases currently already undertake this assessment voluntarily. The additional
administrative burden is estimated at 75 million EUR.
 The introduction of a fall back option for standardisation
In cases where standardisation process fails to deliver, the Commission may step in under
the revised CPR. This will incentivise standard development or replace it if not possible.
Therefore, more products than today will be covered by the CPR and more standards will
be updated. This will increase the competitiveness of the market and replace existing
national requirements by harmonised standards. This is expected to reduce the
administrative burden by 160 million EUR.
 Duplication of information in CE marking and DoP is not required anymore
The current CPR requires the repetition of information in the CE label and in the
declaration of performance (DoP). Under the revised CPR, this will be simplified, the
ECP will contain the permalink to the declarations (DoP & DoC). This will reduce the
administrative burden for all products slightly. This is expected to reduce the
administrative burden by 40 million EUR.
 Availability of declarations in a centralised database or alternative system
As part of the digitalisation efforts under the revised CPR, the introduction of an online
database or information system is foreseen, which will store the DoP, DoC and
instructions for use of all harmonised products. This system will facilitate access to the
declarations reducing the time needed by the users of construction products to find the
right information. This is expected to reduce the administrative burden by 310 million
EUR.
84
2. Summary of costs and benefits
Table 8: Overview of Benefits (total for all provisions) – Preferred Option
I. Overview of Benefits (total for all provisions) – Preferred Option
Description Amount Comments
Direct benefits
Improved market surveillance 2.5 billion EUR annually There appears to be significant benefits that can be
reaped from improved market surveillance, with a
potential 2.5 billion annually176
EUR to be gained in
terms of revenue, equalling more than half the costs
(burden) associated with the CPR.
New obligations for reused
products
17 million EUR annually Provisions on reused products will increase the
business of companies conditioning reused products
(usually SMEs) and potentially save costs as reused
products are less expensive than new ones.
Additional requirements to
online shops
2.5 million EUR annually Additional systems to be implemented for e-
commerce to protect consumers likely to reduce
unjustified cost due to non-compliance or lack of
information.
Product Contact Points
requirements
2.5 million EUR annually Stricter rules for Product Contact Points to deal with
information demands expected to improve market
efficiency.
Circularity provisions expected
to facilitate consumers
interaction with construction
products
190 million EUR annually Reparability, availability of spare parts, extended life
and easy disassembly will reduce the cost related to
reparation and maintenance of installed construction
products.
Indirect benefits
Increased safety of construction
products
No quantification available Benefits would occur thanks to enhanced safety of
construction products, implying better protection
particularly of construction workers and
users/consumers using construction products.
Increase in economic actors’
compliance with relevant rules
and regulations
No quantification available Improved compliance with the regulatory framework
is expected to create benefits in terms of levelling the
playing field for construction products manufacturers
(particularly important for SMEs).
Increased quality of the built
environment in the EU
No quantification available Benefits particularly for the citizens, stemming from
more sustainable and durable built environment
(buildings, urban architecture etc.).
Increase in cross-border trade in
construction products within the
EU Single Market
No quantification available Beneficial for manufacturers, through expected
increase in revenues, as well as to end-users,
allowing improved access to broader range of
construction products.
Increase in construction product
innovation
No quantification available Beneficial for the end-users of construction products,
providing access to innovative products.
Administrative cost savings related to the ‘one in, one out’ approach*
Gross savings 630 million EUR annually See above for explanations
176
Copenhagen Economics (CE), Danish Technological Institute (DTI) and Office for Economic Policy
and Regional Development Ltd. (EPRD) (2021). Supporting study for the impact assessment of the CPR
Review – Final report, Annexes, Annex II: Methodology note (survey design and analysis), page 11.
85
Table 9: Overview of costs – Preferred option
II. Overview of costs – Preferred option
Citizens/Consumers Businesses Administrations
One-off Recurrent One-off Recurrent One-off Recurrent*
Direct
costs
Increase in total costs
an increase of
~200 million EUR
in costs among
manufacturers
associated with the
CPR, equal to
approximately 8%
of the baseline
costs and
corresponding to
0.05% of the
construction
product
manufacturing
sector's total
revenue
Increase in
administrative
costs and
resources to
administration
s in all
Member States
related to the
progressive
adaptation to
the revised
CPR and the
changes it
brings with it.
Increase in substantive
compliance costs in
relation to CE marking
and Declaration of
Performance (DoP)
78 million EUR
Increase in
administrative burden in
relation to CE marking
and Declaration of
Performance (DoP)
70 million EUR
Increase in regulatory
charges in relation to CE
marking and Declaration
of Performance (DoP)
64 million EUR
Costs related to the ‘one in, one out’ approach
Total
Direct adjustment costs
4 million EUR 420 million
EUR
Indirect adjustment
costs
19 million EUR
Administrative costs
(for offsetting)177
450 million
EUR
* The possible future delegated acts introducing a minimum number of checks to be performed
and a minimum human resources needed for market surveillance will be accompanied by a
specific assessment of the resources implications.
177
Offset by the benefits, net saving of 180 million EUR, see table 8
86
ANNEX 4: ANALYTICAL METHODS
This Impact Assessment is supported by a study178
, collecting evidence and
complementing the available evidence in order to analyse potential future options for the
EU legislation on construction products and to assess their possible impacts.
Input from key experts within the field was collected via an initial horizontal survey179
and used by the Commission services to refine and complement the indicative revised
options. The resulting options have been explored in depth to assess preferences and
impacts primarily via a survey among companies and a public consultation,
supplemented with evidence from previous studies carried out in the context of the CPR
review180
and a Survey on future options carried out by the Commission services in 2020.
Finally, the study provides an evidence-based comparison of the various options based
on the broader evidence base, inter alia, including the previous impact assessment
supporting study from 2018, as well as feedback from the validation workshop181
conducted in the concluding phase of this project.
Public consultation
The policy options were mapped around 13 distinct elements, corresponding to the
horizontal issues and main features of the CPR system. Each of the 13 elements were
then attributed various "levels" reflecting the different ways in which the various policy
options would address these (henceforth referred to as variants). The answer option “Do
not know/Indifferent” was also available for respondents to select, in every element. The
mapping of the policy options around 13 elements makes it comprehensible for
respondents to provide informed input about the many different and individually complex
issues and features of the CPR system.
Respondents were asked whether they wished to provide input on each of the
13 elements. Only respondents who replied “Yes” were asked the following questions,
while the other were directed to the next element (or, in the case of the last element, to
the final page of the questionnaire).
The respondents were asked to grade the impact they expect their preferred variant to
have on each type of impact, compared to the baseline variant A according to a 5-grade
178
Copenhagen Economics (CE), Danish Technological Institute (DTI) and Office for Economic Policy
and Regional Development Ltd. (EPRD) (2021). Supporting study for the impact assessment of the CPR
Review – Final report.
179
The survey was a preparatory step focusing on substance and was sent to a limited number of experts in
the field, including members of the Advisory Group on construction products, former participants in one
of the meetings of the Technical platforms on the CPR Review, as well as a few additional stakeholders
that were added in order to cover most relevant stakeholder categories.
180
Particularly VVA, DTI and TNO (2016): Economic Impacts of the Construction Products Regulation,
and VVA, JIIP, DTI and GDCC (2018a): Supporting study for the Review of the Construction Products
Regulation: Evaluation, and (2018b): Supporting study for the Review of the Construction Products
Regulation: Impact Assessment.
181
The validation workshop was carried out online on 24 March 2021. In total, 225 people participated in
the virtual event with a peak attendance of 171. Participants were not registered by category but
represented a broad selection of the stakeholder groups that were also covered by the survey and the
public consultation, particularly industry associations (EU level and national), companies, Member State
authorities’ standardisation organisations, notified bodies.
87
scale encompassing: large decrease, small decrease, no or negligible impact, small
increase and large increase.
Methodology: impacts on costs
The study has mirrored the approach of the previous study supporting the Impact
Assessment for the CPR conducted for the European Commission182
to the extent
possible based on the responses from the company survey. Based on this, we provide the
following two outcomes:
1) Quantification of the impact on costs and benefits of each option as a percent of
revenue183
by company size;
2) Quantification of the sector-wide impact on costs and benefits for companies in the
CPR-related manufacturing sector from a regulatory shift towards different options
relative to the baseline for companies by both company size and aggregated.
It is important to note that the insights to be gained from cost and benefit impact
estimates are less crucial than those that can be obtained from preference rankings for
three primary reasons:
 Firstly, the complexity of the questions related to cost and benefit impacts may
prevent some respondents from being able to answer the question accurately;
 Secondly, the results are sensitive towards a single company’s response since
only few respondents184
provided input on the impacts;
 Thirdly, an inconsistency appears in the company survey responses where
multiple respondents have selected the same option (for example option D) as
both their preferred and least preferred option.
This introduces a substantial amount of uncertainty around the estimates on cost impacts
compared to results on preference rankings.
The methodology for calculating cost impacts was based on four steps:
i. Calculate the baseline costs and foregone revenue of option A;
ii. Estimate the change in the costs and benefits of each option relative to the
baseline;
iii. Calculate the impacts on the costs and benefits of each option;
iv. Estimate the sector-wide impacts on the costs and benefits of each option.
Regarding the first step, the baseline costs and foregone revenue were calculated as the
share of revenue by dividing it with the average reported revenue by company size. In the
second step the average percentage change in costs and foregone revenue of a regulatory
shift towards each option within four elements, four cost categories (except for element 6
182
VVA, JIIP, Danish Technological Institute and GDCC (2018). Supporting study for the Review of the
Construction Products Regulation: Impact Assessment, Annexes to the final report, page 14-15.
183
Revenue is based on respondents reported turnover in 2019 or latest available year.
184
To limit the extent of this issue, two responses where respondents reported extreme values were
disregarded: one small company reported 100,000 EUR in hassle cost, and another reported an increase
of 100,000 pct. from option B.
88
which holds only one cost and foregone revenue category) is estimated and split them by
company size where possible. The reported percentage change in the costs of respondents
preferred and least preferred options for each of the cost categories within each of the
four elements is used. In the third step, calculations of the change in costs or foregone
revenue of a regulatory shift towards each option by multiplying the percentage change
in costs with the reported costs and foregone revenue of the baseline option A are made.
These calculations are made for each of the elements and each of the cost/foregone
revenue categories within each element. Lastly, in the fourth step an estimation of the
sector-wide impact on costs and benefits for companies in the CPR-related
manufacturing sector is made by scaling up the estimated change in the costs and the
benefits as a percent of revenue. As the scalar, an estimate of the sector-wide revenue for
companies in the CPR-related manufacturing sector is used.
The following evaluation grid shows how the various sources contributed to addressing
the impact assessment questions:
Table 10: Sources of evidence
Evaluation questions Sources of evidence
EFFECTIVENESS
What is the problem and why is it a
problem?
 Supporting study for the Review of the
Construction Products Regulation:
Evaluation
 Supporting study for the Fitness Check
on the construction sector: EU internal
market and energy efficiency
legislation
 Study on Analysis of the
implementation of the Construction
Products Regulation
 Study on Economic Impacts of the
Construction Products Regulation.
 Refit platform recommendations
 Survey on horizontal issues
EFFICIENCY
What are the proposed solutions?  Survey on horizontal issues
 Company phone survey
 Public consultation
What are the benefits of each option and
how beneficial are they for the various
stakeholders’ groups?
 Survey on horizontal issues
 Company phone survey
 Public consultation
 Survey on the indicative future options
What are the regulatory and
administrative costs and are they
affordable for the various stakeholders’
groups?
 Survey on horizontal issues
 Company phone survey
 Public consultation
 Survey on the indicative future options
89
RELEVANCE
How do the policy options compare?
To what extent the impacts of each
policy option meet the needs, the
problems and the objective?
 Company phone survey
 Public consultation
What should be the role of the CPR
pivotal actors and their deliverables?
 Survey on horizontal issues
COHERENCE
To what extent is the CPR consistent
with other legislation pieces applying on
the same stakeholders? Are there any
inconsistencies, overlaps or gaps?
 Feedback on the roadmap
 Survey on horizontal issues
 Company phone survey
 Public consultation
 Supporting study for the Fitness Check
on the construction sector: EU internal
market and energy efficiency
legislation
EU added value
Which is the preferred policy option
which will yield highestet benefits?
 Survey on horizontal issues
 Company phone survey
 Public consultation
 Survey on the indicative future options
Could more added value be achieved by
limiting the scope of EU legislation to
most relevant products?
 Survey on horizontal issues
 Survey on the indicative future options
What would be the most likely
consequences of repealing the CPR?
 Company phone survey
 Public consultation
 Survey on the indicative future options
 Supporting study for the Review of the
Construction Products Regulation:
Impact Assessment
ANNEX 5: THE SME TEST – SUMMARY OF RESULTS
(1) Preliminary assessment of businesses likely to be affected
Manufacturers, importers, to a lesser degree distributors and
designers (affected by construction product innovation,
competition).
(See Supporting study for the
impact assessment of the CPR
Review, 2021, Annex First
findings report, page 115)
(2) Consultation with SMEs representatives
The SMEs and representatives of SMEs associations in
construction have provided their feedback during the public
consultation. They were also consulted in a more targeted
manner, during the so-called CPR Technical Platforms. These
were a series of meetings organised as a follow-up to the Report
on the implementation of the CPR adopted on 07.07.2016. The
discussion on the 18 of January 2017 focussed on the limited
uptake of the CPR provisions of Article 5 (derogations from
drawing up a Declaration of Performance - DoP), Article 37
(simplified procedures for micro-enterprises) and Article 38
(simplified procedures for products individually manufactured
or custom-made in a non-series process), the so-called
simplification provisions for the SMEs.
 There was a valuable variety of views in the feedback
received by stakeholders. For instance, some
stakeholders expressed the view that simplification
should benefit all firms, including adaptation to
technological evolution for CE marking, digitalisation or
increased customisation. On the other hand, other
stakeholders expressed shortly that SMEs need
legislative stability.
 Moreover, on the fifth technical platform, which focused
on the future of EOTA, European Organisation for
Technical Assessment, a stakeholder expressed that there
was a need for a national dimension (expertise and
proximity contact for SMEs in their language) and an EU
dimension (coordination).
 Also, with respect to efficiency, during the public
consultation, when stakeholders were asked about the
benefits and the costs in comparison to the situations
before and since the introduction of harmonised
European standards, it was notable that across the totality
of respondents, 36.6% were of the opinion that the
(See Second Technical
Platform, 18.01.2017 on the
topic of Simplification,
including SME-related
provisions,
DocsRoom - European
Commission (europa.eu))
(See Fifth Technical Platform,
04.10.2017 on the topic of the
future of EOTA, European
Organisation for Technical
Assessment,
DocsRoom - European
Commission (europa.eu))
(See public consultation on EU
rules for products used in the
construction of buildings and
infrastructure works, January-
April 2018, page 25,
DocsRoom - European
91
benefits outweighed the costs, while 38.6% of the
responds stated that the costs outweigh the benefits. If
only companies were selected and broken down by size
of enterprise, the highest rate of sceptical respondents
was among the representatives of micro-enterprises
(60.7%). The free text comments further explained the
mixed results of the closed question. A significant
amount of participants stated that the benefits do not
outweigh the costs and that they do not see
advantages of the CPR. As can be expected, these
critical statements came in particular from locally
oriented SMEs.
 Furthermore, in the results of the consultation, a frequent
comment was that SMEs were disproportionally strongly
“hit” by the administrative costs.
 In addition, the view of Small Business Standards,
expressed, as a feedback to the inception impact
assessment, was that the consequences of unavailable or
outdated harmonised product standards increased direct
or indirect costs for the businesses (especially SMEs).
In summary, multiple feedback was provided from stakeholders
via the technical platform and consultations, together with desk-
research, including available evidence already collected through
various reports and studies, as well as through surveys.
Commission (europa.eu))
(See public consultation on EU
rules for products used in the
construction of buildings and
infrastructure works, January-
April 2018, page 33,
DocsRoom - European
Commission (europa.eu))
(See feedback received from:
Small Business Standards185
(SBS) on the Inception impact
assessment, Feedback period:
July-August 2020,
Feedback from: Small Business
Standards (SBS) (europa.eu))
(3) Measurement of the impact on SMEs
The main cost expected for the SMEs remain the
administrative costs.
The 2021 study supporting the Impact Assessment report
concluded that a cost increase of 201 mEUR p.a. was estimated
for the preferred option D, corresponding to 0.05% of the
construction product manufacturing sector's total revenue. This
was mainly driven by an increase in costs for medium-sized
companies of 211 mEUR p.a., corresponding to 0.19% of
revenue, and based on an increase in regulatory, compliance and
administrative costs in relation to CE marking and Declaration
of Performance (DoP).
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
page 69)
185
Small Business Standards (SBS) is a European non-profit association. Its goal is to represent and defend small
and medium-sized enterprises’ (SMEs) interests in the standardisation process at European and international
levels.
92
It also corresponded to a roughly 8% increase compared to the
current baseline costs, likely due to the expectations that the
number of parameters that companies would have to declare
would increase with the introduction of product requirements,
increasing the costs associated with preparing the CE mark and
the DoP.
At the same time, the expected benefit from a revision of the
CPR (option B/C/D) in relation to improved market surveillance
and enforcement were estimated to amount to approx. 2.5 billion
EUR annually (0.6% of the total revenue).
 In particular, looking at the effect on SMEs, the baseline
costs (option A) for SMEs were expected to amount to
2,496 mEUR annually corresponding to 1.1% of
aggregate revenue.
 Notably, looking across all options, the effect on costs
differed for each option. Concerning the expected impact
of option B on SMEs, it was estimated that it would
lead to a decrease of costs, on aggregate, by 151 mEUR
annually for manufacturers corresponding to 0.06 % of
the revenue among SMEs in the sector. Moreover, the
expected benefit from option B in relation to market
surveillance and enforcement was estimated to amount to
approx. 2,500 mEUR annually. More than a half of this
benefit accrued to SMEs, where aggregated revenue
gains were estimated to amount to 2,166 mEUR
annually corresponding to 0.9 % of the total revenue for
that group.
 Alternatively, the impact expected for SMEs under
option C was estimated to decrease costs by a total of
16 mEUR annually for manufacturers, corresponding to
0.01% of the revenue among medium companies in the
sector. As option C could be assimilated to option B in
relation to market surveillance and enforcement, a
revision of the CPR towards option C was expected to
yield the same benefits as described above for option B.
 Conversely, the change towards option D was estimated
to increase costs, on aggregate, by 153 mEUR annually
for manufacturers (SMEs) corresponding to 0.07% of the
revenue among SMEs in the sector. With respect to
benefits, as option D could be assimilated to option B in
relation to market surveillance and enforcement, a
revision of the CPR towards option D was expected to
yield the same benefits as described above for option B.
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
page 70)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Page 27, Table 4, Table 5)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Page 34, Table 9)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Page 35, Table 10)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Page 39, Table 14)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Page 43, Table 18)
93
 Finally, the largest sector-wide impact was expected for
SMEs, where the change towards option E is estimated
to increase costs by, on aggregate, 97 mEUR annually
for manufacturers, corresponding to 0.04% of the
revenue among medium companies in the sector.
Distinctively, respondents answering this question
foresaw a significant loss in terms of foregone revenue
from repealing the CPR (option E) in relation to market
surveillance and enforcement (element 6). The estimated
loss, which was most significant among SMEs, amounts
to 4,803mEUR annually.
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Page 48, Table 22)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Page 49, Table 23)
4) Assess alternative options and mitigating measures
 Across all the options (except option E), there was a
notable positive effect on SMEs with respect to
competitiveness. As revealed by the 33 respondents who
preferred option B compared to the baseline option, the
largest expected impact was an increase in the
competitiveness of SME manufacturers of
construction products vis-à-vis large manufacturers.
 Similarly, of the 5 respondents that selected option C2
(same as option B for the core areas covered by the CPR,
but national requirements fully allowed for construction
products outside the core areas) as preferred, the largest
impacts were expected for SME manufacturers’
competitiveness vis-à-vis larger manufacturers.
 Additionally, among manufacturers, the largest
decrease in the administrative burden was expected
by the 3-5 respondents who selected option C2 as
preferred. In particular, of the 3 respondents that selected
option C3 (where Member States would be allowed to
offer alternative paths to market access not based on the
common technical language), the largest impacts were
expected for safety of construction products,
construction product innovation and competition among
manufacturers of construction products.
 Above all, option D was expected to lead to the largest
increase in competitiveness of SME manufacturers.
Across all option, the expected impacts on SME
competitiveness were lower than the expected impacts
on e.g. construction product safety, innovation,
competition and intra-Single Market cross-border trade.
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, Second Progress
report, page 70)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, Second Progress
report, page 42)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, Second Progress
report, page 42, 86)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, Second Progress
report, page 95)
94
 Furthermore, Option D would allow for the introduction
of mandatory environmental requirements, which would
not only improve the sustainability and durability of
construction products, but would act as a driver for
innovation and improve competition by creating a more
level playing field for low-carbon, alternative
construction products (which may often be developed
by SMEs, thereby improving their competitiveness
vis-à-vis larger manufacturers).
 Looking at the respondents that preferred option D (EU-
wide construction product requirements, and national
requirements only allowed where the EU had not fully
harmonised requirements), 16 out of them, the largest
impacts expected were a higher safety of construction
products, and better compliance with relevant rules and
regulations, more cross-border trade of construction
products in the EU Single Market, as well as the higher
competitiveness of SME manufacturers of
construction products vis-à-vis large manufacturers.
 In the same line, option D was expected to lead to a
very slight decrease in the administrative burden,
among small manufacturers.
 Option D foresaw the possibility for the Member States
to exclude certain microenterprises from the
obligations of the CPR, when they did not trade across
the borders.
 Finally, out of the 3 respondents preferring option E
(market surveillance up to each Member State and
according to national rules and procedures), the largest
expected impact was a decrease in the
competitiveness of SME manufacturers of
construction products vis-à-vis large manufacturers,
as well as a decrease in the administrative burden. On
one hand, out of the 5 respondents preferring option E,
the largest expected impacts were an increase in
competition among manufacturers of construction
products and cross-border trade of construction
products in the EU Single Market. However, they also
expected it to lead to a decrease in economic actors’
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, First findings report,
page 29)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, Second Progress
report, page 25)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, First findings report,
page 29)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, First findings report,
page 43, 44)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, Second Progress
report, page 87)
(See Supporting study for the
impact assessment of the CPR
Review – Final report, 2021,
Annexes, Second Progress
report, pages 54, 61, 67, 87)
95
compliance with relevant rules and regulations,
construction product durability and quality of the built
environment. On the other hand, the 3 respondents
preferring option E (no obligation for Member States to
administer PCPCs), expected decreases in
administrative burden, and SME manufacturer
competitiveness vis-à-vis large manufacturer.
Table 11: Measurement of the impact on SMEs in million EUR per annum
OPTION COSTS BENEFITS
Option A (baseline) 0 (baseline) 0 (baseline)
Option B ↓ by 151 ↑ 2,166 (reduction in foregone
revenue for compliant producers)
Option C ↓ by 16 ↑ 2,166 (reduction in foregone
revenue for compliant producers)
Option D ↑ by 153 ↑ 2,166 (reduction in foregone
revenue for compliant producers)
Option E ↑ by 97 ↓ 4,803 (additional forgone
revenue for compliant producers)
It should be noted that these figures are based on a rather limited number of replies in the context
of the supporting study and should therefore be considered best available estimates and be
considered with appropriate caution as regards their accuracy.
96
ANNEX 6: DESCRIPTION OF THE CPR FRAMEWORK
The overarching objective of EU legislation on construction products is to ‘achieve the proper
functioning of the Internal Market for construction products’ (Recital 58 of the Construction
Products Regulation, CPR).
With respect to the division of powers between the EU and Member States, construction is a
field of clearly identified subsidiarity. Member States have exclusive competence for building
regulations (i.e. the rules on design and construction of buildings and civil works), while EU
legislation is put in place to ensure free circulation in the internal market of the products used in
these buildings and civil works. Member States retain full control of construction design rules in
their respective territories, relating in particular to public safety and security, energy efficiency
and the protection of workers.
The system set up first by the Construction Products Directive (CPD) and then the CPR aims to
put in place conditions for the proper functioning of the internal market for construction
products. In practical terms, this means allowing construction products legally placed on the
market in one Member State (i.e. made available on the EU market for the first time) to be
marketed on the territory of any other Member State.
This does not, however, guarantee that a product bearing the CE marking can systematically be
used (i.e. incorporated in construction works) in every Member State. This is because the
legislation on construction works and civil engineering works remains broadly a competence of
Member States, exercised at national, regional or even local level, in accordance with relevant
secondary EU law186
and Articles 49 and 56 TFEU.
The CPR is different from ‘New Legislative Framework’ (NLF) legislation in that it harmonises
only the assessment methods of product performance, and does not set EU-wide requirements for
construction products. Responsibilities are shared between the EU, which regulates the placing
on the market of these products, and the Member States, which set rules on the products’ use that
can imply performance requirements. To ensure that these requirements are based on the same
assessment methods, the harmonised standards are mandatory, unlike the general situation under
the NLF. The standards’ mandatory use reinforces the necessity for them to be of high quality
and to respond swiftly to the needs of stakeholders and Member States.
Harmonised conditions for the marketing of construction products are established by
harmonising information about the performance of construction products (in relation to Basic
Work Requirements). This differs from the approach under most EU products directives, which
is to harmonise the products themselves or their requirements.
The aim of the common technical language created under the CPR is to enable assessment of the
performance of construction products. This ensures the availability of reliable information on the
performance of construction products (for professionals, public authorities and consumers) and
makes it possible to compare the performance of products from different manufacturers in
different countries.
186
Among others the Services Directive, 2006/123/EC, and its Article 16(2)(f).
97
The common technical language consists of harmonised technical specifications, i.e. harmonised
European standards and European Assessment Documents (EADs), which are the alternative
offered for products not (fully) covered by harmonised standards. The common technical
language enables: (i) regulatory authorities in EU countries to define legal requirements
applicable to construction works; (ii) manufacturers to draw up the declaration of performance
(DoP) as defined in the CPR and to affix the CE marking; and (iii) design engineers and
contractors to ensure compliance with national legal requirements and to meet demands from
their clients.
Harmonised European standards are drafted by CEN and, very exceptionally, Cenelec, on the
basis of standardisation requests/mandates issued by the Commission after consultation of the
Standing Committee on Construction187
. These requests are drawn up by the European
Commission, taking into account the requirements of Member States and the information needs
expressed by the industry and other construction stakeholders. Standards are drafted by the
relevant CEN technical committee and submitted for internal CEN approval procedures. They
are then submitted to the Commission for citation in the Official Journal of the European Union.
Article 17(5) of the CPR provides for the Commission to assess the conformity of the
harmonised standards within the mandates, a provision that did not exist in the CPD; this
obligation was reinforced and extended by the 2012 Standardisation Regulation188
. Once cited,
the standards become the official references for the assessment and declaration of performance
of the essential characteristics covered, and manufacturers are obliged to use them and CE mark
the products covered by harmonised standards.
Products not covered, or not fully covered by harmonised standards can be voluntarily CE
marked. The European Technical Assessment (ETA) is an alternative to standards for such
construction products: the manufacturer may request an ETA from a Technical Assessment Body
(TAB). The ETA is issued on the basis of a European Assessment Document (EAD). If the
product in question is already fully covered by an existing EAD, this will be used as the basis for
the ETA to be issued. When a manufacturer requests an ETA for its product and when no
relevant EAD exists, the TAB which has received the request draws up the work programme for
drafting the EAD, taking into account the essential characteristics relevant for the intended use
(See Figure 13).
Other construction products - those not covered or not fully covered by a harmonised standards
and not voluntarily CE marked - remain under the mutual recognition principle.
Annex I to the CPR lists the seven basic requirements for construction works (BWRs):
1. Mechanical resistance and stability;
2. Safety in case of fire;
3. Hygiene, health and the environment;
4. Safety and accessibility in use;
5. Protection against noise;
187
In accordance with Article 17 of the CPR and with comitology procedures.
188
Article 10(6) of Regulation (EU) 1025/2012.
98
6. Energy economy and heat retention;
7. Sustainable use of natural resources.
The seven Basic Work Requirements categorise the requirements that Member States may lay
down for construction works on their territory; they also circumscribe the sphere of
harmonisation for CPR purposes when defining essential characteristics of construction products.
The declaration of performance (DoP) is required for every construction product covered by a
European harmonised standard or for which an ETA has been issued. The DoP specifies the
product and the standard (or the EAD and the ETA) and contains information about the product’s
performance in relation to the essential characteristics set out in the applicable harmonised
technical specification (harmonised standard or EAD). A DoP should be supplied in the
language(s) of each Member State where the product is marketed — or another language decided
by that Member State.
Each construction product covered by a European harmonised standard, or for which an ETA has
been issued, must be CE marked. This marking indicates that the product is in conformity with
its declared performance, and that either it has been assessed according to a harmonised
European standard or an ETA has been issued for it.
The Member States are obliged to allow the marketing of CE-marked construction products
without requiring any additional marks, certificates or testing. Member States can, however, set
requirements on the use of such products in buildings and other construction works, using for
this purpose only the harmonised structure created by means of the CPR. This means that
Member States can specify for a particular use a certain performance value based on a
harmonised standard. However, they cannot request that it be tested by means other than those
set out under the standard or add any additional elements not covered by the standard.
Products covered by a harmonised standard may be exempted from the requirement to draw up a
DoP and affix the CE marking if: (i) they are individually manufactured/custom-made for a
given use; (ii) they are manufactured on the construction site; or (iii) the manufacturing is
required to maintain traditional processes for the conservation of officially protected works, as
outlined in Article 5 of the CPR.
The assessment and verification of constancy of performance (AVCP) system sets out how to
assess the performance of construction products and how to certify the constancy of the
performance. Based on Article 28 of the CPR, the Commission establishes by means of
delegated acts the system applicable to a given product or family of products. Five different
systems are in place for construction products, ranging from self-declaration and monitoring by
the manufacturer to large-scale third-party involvement by notified bodies189
. All AVCP systems
require that the manufacturer establish factory production control190
. The Commission is
required to choose the least onerous system or systems consistent with the fulfilment of all basic
requirements for construction works.
189
The different systems are designated 1+, 1, 2+, 3, and 4.
190
According to Article 2(26) of the CPR, ‘factory production control means the documented, permanent and
internal control of production in a factory, in accordance with the relevant harmonised technical specification.
99
The AVCP system may require that an NB carry out some of the tasks. Notified bodies are the
bodies authorised and notified by Member States to carry out third party AVCP under the CPR
(Article 39). The requirements, obligations and other aspects relating to the operation of notified
bodies are set out in detail in Articles 43-55 of the CPR.
Article 27 of the CPR permits the Commission to adopt Delegated Acts to set threshold levels
and classes of performance in relation to the essential characteristics of construction products191
.
It also provides the basis for adopting delegated acts to establish the conditions under which a
construction product is deemed to satisfy a certain level or class of performance without testing
or without further testing.
The CPR aims to contribute to EU SME policy, the objective of which is to level the playing
field for SMEs, especially micro-enterprises.
- Article 37 specifically aims to provide micro-enterprises with an option to use simplified
procedures when carrying out the AVCP.
- Article 36 enables any manufacturer to replace the type-testing or type-calculation stage of the
assessment process with ‘Appropriate Technical Documentation’, if tests have been carried out
for corresponding products or systems of components (test sharing and cascading).
- Article 38 allows manufacturers to replace performance assessment with ‘Specific Technical
Documentation’ for construction products that are individually manufactured or custom-made in
a non-series process.
- Article 10 requires Member States to designate Product Contact Points for Construction
(PCPCs) to act as information sources for companies, in particular for SMEs. Member States
‘shall ensure that the product contact points for construction provide information, using
transparent and easily understandable terms, on the provisions within its territory aimed at
fulfilling basic requirements for construction works applicable for the intended use of each
construction product’.
191
Member States’ requirements can then only be presented using the classes established; when thresholds are
established, Member States can set more stringent demands but not lower the threshold.
100
Figure 13: How the CPR works
101
ANNEX 7: THE EUROPEAN TECHNICAL ASSESSMENT (ETA)
SYSTEM (THE EOTA ROUTE)
The European technical assessment (ETA) system grants manufacturers the possibility to CE-
mark their products in cases when these are not covered by a harmonised standard.
If the product is not covered by a harmonised European standard, the manufacturer can decide to
request a European Technical Assessment (ETA) from a Technical Assessment Body (TAB) in
order to affix the CE marking on the product. When an ETA is requested, the TAB contacted
first checks whether there is already a European Assessment Document (EAD) covering the
product. If the product in question is already fully covered by an existing EAD, this will be used
as the basis for the ETA to be issued. In cases where an EAD does not already exist,
development of the EAD is the responsibility of this TAB and EOTA. The preparation of draft
EADs and the issuing of ETAs are entrusted to TABs. EOTA coordinates the work and adopts
the EAD.
The preparation of draft EADs and the issuing of ETAs are entrusted to TABs. Article 29(1) of
the CPR allows Member States to designate TABs within their territory, according to their
national procedures for the designation of such bodies. However, strict requirements are set out
in Article 30 and Annex IV (Table 2) of the CPR.
While it is voluntary for a manufacturer to apply for an ETA, once the ETA has been issued, the
manufacturer is obliged to draw up a DoP and CE-mark the product concerned. Indeed, the
declaration of performance (DoP) is required for every construction product covered by a
European harmonised standard or for which an ETA has been issued. Also, each construction
product covered by a European harmonised standard, or for which an ETA has been issued, must
be CE marked.
The uptake of the ETA option has been significant. As of 31 December 2020, EOTA’s Technical
Assessment Bodies had issued 8,900 European Technical Assessments (ETAs) for manufacturers
from 72 countries around the globe192
, among them 6,900 since the adoption of the CPR.
192
EOTA – 2020 Annual Report, https://www.eota.eu/news/eota-2020-annual-report
102
Figure 14: Number of ETAs based on ETAGs and on EADs since the adoption of the CPR
Source: EOTA
The ETA system, is generally, perceived as a positive aspect of the CPR by the manufacturers
using it. Among the feedback received from stakeholders during the fifth Technical Platform
meeting193
, stakeholders expressed the view that “in the presence of gaps in the mainstream
route, EOTA provides an adequate answer for niche sectors, and particularly for many SMEs for
which time to market makes the difference” and also, that “in the CPR system, the EOTA route
provides the only freedom to produce non-standardised products and it has to be maintained as
such”.
The uptake of the European assessment document (EAD) option has been growing rapidly, with
6,240 ETAs issued, indicating that the manufacturers concerned assess the ETA option as
attractive (i.e. effective) even though some stakeholders think that the process is too slow194
.
Furthermore, the feedback received during the fifth Technical Platform195
points out the
necessity to improve this route by strengthening EOTA through stronger involvement from
stakeholders and also, strengthening EOTA vis à vis TABs, through taking more of a leading
role in the development of EADs. It was also noted that “the process should be made more
transparent.”
A potential drawback is that whereas the EAD route was proposed in order to allow the market
entry of innovative products, the vast majority of the ETAs do not concern innovative
products196
.
193
Summary of the fifth Technical Platform, 04.10.2017, The future of EOTA, European Organisation for Technical
Assessment, https://ec.europa.eu/docsroom/documents/26204/attachments/5/translations/
194
BRE, Ecorys, and Vito (2016), Supporting study for the evaluation of the relevance of EOTA tasks
195
Summary of the fifth Technical Platform, 04.10.2017, The future of EOTA, European Organisation for Technical
Assessment, https://ec.europa.eu/docsroom/documents/26204/attachments/5/translations/
196 BRE, Ecorys, and Vito (2016), Supporting study for the evaluation of the relevance of EOTA tasks
103
In addition, about half of all cited EADs have been developed in four product areas only: (i)
fixings; (ii) thermal insulation products - composite insulating kits/systems; (iii) structural
metallic products and ancillaries; and (iv) structural timber products/elements and ancillaries197
.
This may indicate a potential need for a standardisation request rather than for EADs/ETAs.
Indeed, it may be that the high number of ETAs is a result of the failure of standardisation.
Lastly, it is worth mentioning that EOTA plays an important role in ensuring the objectives of
the CPR are realised. Its role changed significantly, with greater emphasis on the coordination of
the development of test procedures and dissemination of best practices as new key tasks198
. In
this line, for the functioning of TABs and EOTA, finance is a key issue, as these organisations
bear most of the cost of developing EADs. Although, in 2014, EOTA received 360,000 EUR
from the Commission, it has been noted by EOTA that the administrative burden on their
organisation has increased (allegedly due to delays caused by the Commission and the
requirement for EOTA to provide translations) and that insufficient funds are available for them
to carry out their tasks.199
197 Evaluation of Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing of
construction products and repealing Council Directive 89/106/EEC, SWD(2019)1770, p.31,
https://ec.europa.eu/docsroom/documents/37827
198
BRE, Ecorys, and Vito (2016), Supporting study for the evaluation of the relevance of EOTA tasks
199
RPA(2015) Analysis of the implementation of the Construction Product Regulation, p.30
104
ANNEX 8: SIMPLIFICATION PROVISIONS UNDER THE CURRENT
CPR
A specific key objective of replacing the CPD with the CPR was to achieve simplification, with a
particular view to levelling the playing field for SMEs and micro-enterprises. The CPR therefore
provides derogations from the obligation to draw up a DoP and simplified procedures for placing
construction products on the market. Specifically:
Article 5 provides derogations from the obligation to draw up a DoP when the construction
product is individually manufactured or custom-made in a non-series process in response to
a specific order and installed by the manufacturer; or is manufactured on the construction site; or
manufactured in a traditional manner or in a manner appropriate to heritage conservation.
Article 36 aims to avoid the unnecessary testing of construction products for which performance
has already been demonstrated. It enables any manufacturer to replace the type-testing or type-
calculation part of the assessment of performance with Appropriate Technical Documentation, if
the product by nature is deemed to obtain a certain level or class of performance (conventionally
accepted performance), in case tests have been carried out for corresponding products (shared
ITT200
), and for assembled systems of components, when testing has been carried out for the
same system (cascading ITT).
Article 37 provides micro-enterprises with the option to use simplified procedures when
carrying out the AVCP. It allows micro-enterprises to use different methods from those
contained in the applicable hEN for products covered by Systems 3 and 4, and to resort to
System 4 for products for which System 3 would be required. It is up to the manufacturer to
demonstrate compliance of the product with the applicable requirements by means of a Specific
Technical Documentation and to demonstrate equivalence of the procedures used with those laid
down in the harmonised standard.
Article 38 allows manufacturers to replace performance assessment with Specific Technical
Documentation for construction products that are individually manufactured or custom-made in a
non-series process.
Previous studies201
have shown that the uptake of these provisions is very limited, with the
exception of sharing and cascading (Article 36), which is reported to be widely applied, but none
of these studies were able to quantify the uptake or associated cost savings.
These studies conclude that the reasons for the very low uptake (except for Article 36) include,
on the one hand, low awareness of the derogations and simplified procedures and, on the other, a
lack of clarity and risk of different interpretations by national authorities of the relevant articles
of the CPR. Interviewees (industry associations, standardisation bodies, NBs, TABs, and Public
Authorities) pointed to a lack of awareness among enterprises of the simplified procedures and
several interviewees called for improved guidance and communication about the provisions and
how to use them. Moreover, the lack of clarity causes legal uncertainty. In particular, with
200
Initial Type Testing.
201
Economisti Associati, Milieu & CEPS (2016). Supporting study for the Fitness Check on the construction sector:
EU internal market and energy efficiency legislation; RPA (2015). Analysis of the implementation of the
Construction Products Regulation.
105
respect to the lack of clarity of the provisions, there is unclarity to what actually constitutes
“equivalent” documentation. Specific mention was made by several interviewees of the notion of
“equivalence” of the used procedures to the procedures laid down in the harmonised standards,
which is not explained. Thus, the conditions for practical implementation of the simplified
procedures remain unclear, with small enterprises and other actors, including Member State
authorities, struggling to understand the rules202
.
In the 2018 study, criticism about the ambiguity of the derogations was expressed by a majority
of the interviewed stakeholders (representatives of European associations of construction
products manufacturers from different sectors)203
.
Lastly, another issue which came out strongly in the 2018 study was a questioning of the
justification of the simplified procedures aimed at micro-enterprises. The point was repeatedly
made that if one of the aims of the CPR is to allow for Member States to regulate buildings and
thereby ensure the protection of users and consumers, it is difficult to justify relaxing the
requirements for technical documentation in order to benefit smaller companies. Related to this,
several interviewees pointed out that the degree of confidence in the product needs to be the
same for all products, regardless of whether these products have been put on the market by
micro-enterprises, SMEs or large companies204
.
202
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute (DTI),
Global Data Collection Company (2018). Supporting study for the Review of the Construction Products
Regulation: Evaluation, p. 44.
203
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute (DTI),
Global Data Collection Company (2018). Supporting study for the Review of the Construction Products
Regulation: Evaluation, p. 44.
204
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute (DTI),
Global Data Collection Company (2018). Supporting study for the Review of the Construction Products
Regulation: Evaluation, p. 45.
106
ANNEX 9: THE ENVIRONMENTAL AND CLIMATE IMPACT OF
CONSTRUCTION PRODUCTS
Aggregates and other materials such as bricks, gypsum, lime and copper, buildings alone use
some 1.6 billion tonnes of materials per year. Producing these materials, in turn, results in about
250 million tonnes (Mt) of CO2 emissions annually. Cement, steel, aluminium and plastics
account for almost 80% of those emissions205
. Half of the steel produced today is used in
construction and infrastructure. At the same time, the steel industry releases some 230 CO2 Mt
per year, while cement emits more than 110 Mt CO2 per year206
. In a 2018 study, the findings
show that more material-efficient products can cut emissions by 56 Mt CO2 per year.207
Construction and demolition (including infrastructure) generate 25–30% of total waste
volumes208
, far more than any other sector.
The way of using construction has significant impact for reaching future climate targets. By
2050, just the cement, steel, aluminium and plastic used for construction will result in emissions
of 230 Mt CO2 in a baseline scenario where they are made with today’s production processes209
.
Demand-side measures210
could reduce this by more than half, or 123 Mt CO2, by the second
half of this century. Of this, 80 Mt CO2 per year would be available by 2050, making a major
contribution to EU mid-century climate targets211
. A 2018 study shows that material use for
buildings can decrease by 30% as they are used more efficiently212
. As a major contributor to
global greenhouse gas (GHG) emissions, buildings and infrastructure must rapidly decarbonise
before 2050 in order to meet global GHG reduction goals213
. The built environment is
responsible for generating approximately 40% of energy-related global GHG emissions, and
11% is generated by the manufacturing of materials214
.
Concerning the CPR, while many stakeholders have noted that sustainability considerations are
reinforced in the CPR (in particular through BWR 7), and that this is a progression relative to the
situation under the CPD, the majority of stakeholders were of the view that the CPR has not yet
translated into an actual improvement in terms of sustainability because the processes and
procedures needed to implement BWR 7 have not yet been established.215
The 2011 CPR
205
Material Economics, ‘Circular Economy – A Powerful Force for Climate Mitigation’, 2018, p.142.
https://materialeconomics.com/publications/the-circular-economy-a-powerful-force-for-climate-mitigation-1.
206
Material Economics, ‘Circular Economy – A Powerful Force for Climate Mitigation’, 2018, p.20.
207
Material Economics, ‘Circular Economy – A Powerful Force for Climate Mitigation’, 2018, p.28.
208
European Commission (2016). Construction and demolition waste,
http://ec.europa.eu/environment/waste/construction_demolition.htm.
209
Material Economics, ‘Circular Economy – A Powerful Force for Climate Mitigation’, 2018, p.140.
210
E.g. one demand-side option is to substitute from high-carbon to low-carbon materials. Material Economics,
‘Circular Economy – A Powerful Force for Climate Mitigation’, 2018, p.154.
211
Material Economics, ‘Circular Economy – A Powerful Force for Climate Mitigation’, 2018, p.140.
212
Material Economics, ‘Circular Economy – A Powerful Force for Climate Mitigation’, 2018, p. 43.
213
IPCC. (2018). Summary for policymakers—Global warming of 1.5°C. 2018. Intergovernmental Panel on Climate
Change (IPCC), https://www.ipcc.ch/sr15/chapter/summary-for-policy-makers/.
214
IEA. (2019). Global status report for buildings and construction 2019. International Energy Agency (IEA). DOI:
https://doi.org/10.1038/s41370-017-0014-9.
215
RPA(2015) Analysis of the implementation of the Construction Product Regulation, p. 134
107
provision are not yet producing any effect and have not triggered an improvement in the
sustainability of the sector.216
Furthermore, the ambition of strengthening the climate and sustainability aspects in the context
of the future revised CPR was highlighted by the CEAP and the Renovation Wave objectives.
Accordingly, to contribute to reducing the overall climate and environmental impact of
construction products is a specific objective of the revision of the CPR.
216
Economisti Associati, Milieu and CEPS, with contributions from BPIE and DBRI (2016). Supporting study for
the Fitness Check on the construction sector: EU internal market and energy efficiency legislation, p. 48.
108
ANNEX 10: ARTICULATION WITH OTHER EXISTING EU
LEGISLATION AND OTHER INITIATIVES
The CPR is not the only European legislation that applies to the construction products. The co-
existence of many pieces of legislation that apply to the construction sector may be the reason
for potential overlaps in terms of procedures and requirements, notwithstanding the fact that they
pursue similar and complementary objectives217
. With respect to external coherence with other
European legislations, there are a number of areas where the legislation overlap and/or are in
conflict with each other, including the Ecodesign Directive (EDD)218
and several other
product/technical directives219
. Thus, there are potential overlaps between the CPR and the EDD
with respect to the procedures established for construction products, in particular to parallel
routes for CE marking.
The supporting study for the fitness check220
carried out an analysis of the coherence between
selected EU acts applying to the construction sector. More specifically, the study considered the
legal overlaps between the CPR and the EDD (2009) and the Energy Labelling Directive221
(ELD, 2010), which may also apply to construction products and found that:
 Inconsistencies in definitions, lack of cross-references between the three pieces of
legislation: Negligible cost impact;
 Overlap of the CPR and the (current) EDD/ELD:
o Limited costs for the whole sector, but increasing if and when the scope of the EDD
is extended to other construction products;
o High costs for manufacturers of specific products covered by both hEN and the EDD.
The costs of these legal overlaps could not be quantified but may be significant for
manufacturers of those specific products.
Furthermore, the 2016 study222
found that “existing overlaps between the EDD and CPR for
specific product categories currently relate to five product categories, namely solid fuel boilers,
(solid fuel) local space heaters and space/water heaters, as regulated by recently adopted
Commission Regulations (EU) 2015/1185223
, 2015/1188224
, 2015/1189225
, 813/2013226
, and
217
Centre for Industrial Studies (2020). EADs and ETAs: Added value to the construction sector, p. 56.
218
Directive 2009/125/EC.
219
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute (DTI),
Global Data Collection Company (2018). Supporting study for the Review of the Construction Products
Regulation: Evaluation, p.115.
220
Economisti Associati, Milieu & CEPS (2016). Supporting study for the Fitness Check on the construction sector:
EU internal market and energy efficiency legislation.
221
Directive 2010/30/EU.
222
Economisti Associati, Milieu & CEPS (2016). Supporting study for the Fitness Check on the construction sector:
EU internal market and energy efficiency legislation.
223
Commission Regulation (EU) 2015/1185 of 24 April 2015 implementing Directive 2009/125/EC of the European
Parliament and of the Council with regard to Ecodesign requirements for solid fuel local space heaters,
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2015.193.01.0001.01.ENG.
109
814/2013227
. Hence, potential impacts are very limited when compared to the whole market for
construction products”.
The study concluded that the objectives of the CPR, the ELD and the EDD are clearly distinct
and are mostly considered complementary and coherent.
Also, the same study228
considered the relationship between the CPR and the Energy
Performance of Buildings Directive229
(EPBD, 2010), noting that there is a link between the
EPBD and the CPR, as the latter establishes harmonised rules for the marketing of construction
products, hereby allowing the comparison of the energy-related performance of products from
different manufacturers. As the EPBD takes a system approach while the CPR acts at product
level, it was concluded that the two pieces of legislation do not overlap and that the adoption of a
new standard on sustainability or energy economy under the CPR could contribute to achieving
the objectives of the EPBD. There is thus an opportunity to achieve synergies between the CPR
and the EPBD through a coordinated approach.
Besides, there is a conflict between the CPR and the Standardisation Regulation since the use
of harmonised standards is mandatory under the CPR but voluntary under the Standardisation
Regulation230
. A key problem relates to the CPR adding additional regulatory complexity (and
time) to the standardisation process compared to voluntary standards.
Furthermore, the CPR does not align with other Internal Market (New Approach231
)
directives, since the basic function and meaning of the CE marking is different.
224
Commission Regulation (EU) 2015/1188 of 28 April 2015 implementing Directive 2009/125/EC of the European
Parliament and of the Council with regard to Ecodesign requirements for local space heaters, https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2015.193.01.0076.01.ENG.
225
Commission Regulation (EU) 2015/1189 of 28 April 2015 implementing Directive 2009/125/EC of the European
Parliament and of the Council with regard to Ecodesign requirements for solid fuel boilers, https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2015.193.01.0100.01.ENG&toc=OJ:L:2015:193:TOC.
226
Commission Regulation (EU) No 813/2013 of 2 August 2013 implementing Directive 2009/125/EC of the
European Parliament and of the Council with regard to Ecodesign requirements for space heaters and
combination heaters, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32013R0813.
227
Commission Regulation (EU) No 814/2013 of 2 August 2013 implementing Directive 2009/125/EC of the
European Parliament and of the Council with regard to Ecodesign requirements for water heaters and hot water
storage tanks, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32013R0814.
228
Economisti Associati, Milieu & CEPS (2016). Supporting study for the Fitness Check on the construction sector:
EU internal market and energy efficiency legislation.
229
Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance
of buildings.
230
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute (DTI),
Global Data Collection Company (2018). Supporting study for the Review of the Construction Products
Regulation: Evaluation, p.116.
231
Under the CPR, the basic function and meaning of the CE marking is different from those under most internal
market (new approach) directives, focusing on assessment of performance instead of product conformity. This is
due to the combination of two important specific factors: the nature of such intermediate products and the fact
that construction works are a competence of the Member States. As noted by the Supporting study for the fitness
check of the construction sector, “While a New Approach Directive on e.g. the safety of certain products would
state the minimum safety level that a manufacturer needs to guarantee to place a product on the Single Market,
the CPR ‘only’ sets a common methodology for measuring the performance of construction products over their
essential characteristics”.
110
Furthermore, interlinks between the revised CPR and upcoming legislation exist, particularly the
Sustainable Products Initiative. Therefore, there is a need to define interfaces between
horizontal legislation, namely the SPI, and vertical legislation, in view of avoiding negative
interferences and duplications. The links with the SPI are presented and analysed in Annex 11.
In the 2018 supporting study232
, respondents to the public consultation provide quite a large
number of examples of specific pieces of legislation that overlap or contradict the CPR. The
pieces of legislation that were mentioned multiple times were the following: public procurement
rules at national and/or local level as well as EU “green public procurement” rules, Ecodesign
Directive, Drinking Water Directive, REACH, Waste Framework Directive, Marine Equipment
Directive, Classification, Labelling and Packaging Regulation, Energy Performance of Buildings
Directive, Product Liability Directive, Machinery Directive.
Moreover, with respect to EADs, in a survey233
conducted in 2020, when analysing
manufacturers’ responses by the product areas they deal with, for the vast majority of product
areas, the EADs are neither overlapping nor conflicting with EU legislation other than the
CPR234
. Only in a few cases, manufacturers indicated a problem of overlapping, but not
conflicting EU legislation.
In this view, it is important to note that, with respect to the policy options outlined in this Impact
Assessment; Options B to D would include a clarification of the relationship of the CPR with
current rules and introduce clear collision rules for potential future overlap. Coherence with
existing EU legislation would be ensured by making explicit the CPR’s relationship to
overlapping rules (e.g. REACH or the Waste Framework Directive). Certain construction
products would be excluded to prevent overlap with other EU legislation (e.g. in relation to the
Drinking Water Directive).
The Climate Law requires that any new legislative proposal is aligned with the objective of
ensuring the 2050 climate neutrality objective, in a socially fair and cost-efficient manner. The
Commission has to assess that the proposal ensures climate adaptation.235
While the climate
resilience of buildings is largely dependent on local conditions and is regulated in national,
regional or local building codes, under the revised CPR manufacturers could provide product
information allowing construction works to be better adapted to future climate conditions.
Finally, some of the legislation overlapping with the CPR also entails potential for synergies, if
sufficient coordination is applied, including that the procedures and approaches involved could
remain sufficiently similar. The potential for synergies was already mentioned above for the
EPBD, but could also apply to other pieces of legislation such as the EDD and the ELD.
In sum, several pieces of European legislation apply to construction products, and this could
pose overlap and conflict with the CPR. Actual and potential overlaps exist with Ecodesign
Directive and may also materialise for Energy Labelling Directive and its future delegated acts.
232
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute (DTI),
Global Data Collection Company (2018). Supporting study for the Review of the Construction Products
Regulation: Impact Assessment, Annex VIII, pp.162-163.
233
Centre for Industrial Studies (2020). EADs and ETAs: Added value to the construction sector. 2020-csil-eota-
report-0109.pdf.
234
Centre for Industrial Studies (2020). EADs and ETAs: Added value to the construction sector, p. 58.
235
Regulation (EU) 2021/1119, Article 6(4).
111
Such overlaps are expected to become more and more frequent but also entail potential for
synergies through coordination. Indisputably, all economic actors would benefit from increasing
the cost-effectiveness through reduction of overlaps, hence one of the goals of the CPR revision.
112
ANNEX 11: INTERACTION BETWEEN THE FUTURE CPR AND THE
SPI
The actions announced in in the CEAP include ‘addressing the sustainability performance of
construction products in the context of the revision of the Construction Product Regulation
(CPR), including the possible introduction of recycled content requirements for certain
construction products, taking into account their safety and functionality.’ At the same time, with
regard to the Sustainable Products Initiative (SPI), the CEAP announced that ‘the core of this
legislative initiative will be to widen the Ecodesign Directive (EDD) beyond energy-related
products so as to make the Ecodesign framework applicable to the broadest possible range of
products and make it deliver on circularity.’
The SPI will aim to improve products’ sustainability, to give access to sustainability information
along the supply chain and to incentivise more sustainable products and business models – of all
products. In terms of the prioritisation, the product categories such as energy related products
(including means of transport), textiles, furniture, high impact intermediary products and
chemicals would be expected to be tackled first. Therefore, the SPI will intend to broaden the
current empowerments of the Ecodesign framework to set new kinds of requirements (e.g. on
minimum recycled content, on the declaration of the environmental footprint, on the
remanufacturing of components or on due diligence requirements in relation to specific social or
human rights risks along the value chain of products) in relation to those products.
Hence, the question arises how the CPR and the SPI should articulate.
Only when overcoming the standardisation deadlock, option A could partially address climate
and environmental sustainability already foreseen under the current CPR. But it would not reach
the same ambition as the SPI and would not be able to mirror the same level of empowerments.
Therefore, under option A as well as under option E the SPI would have to apply to and to
prioritise construction products to address their sustainability. However, it would take a long
time for the SPI to cover a considerable number of construction products owing to their
diversity. Under A, this would lead to overlapping requirements, as construction product be
covered by two legislation (SPI and CPR) with high risks of unjustified administrative burdens,
inconsistency and suboptimal results in terms of trade-off between environmental performances
and CPR ‘traditional’ ones (e.g. safety). In contrast, Option E would avoid this problem, as there
would be no CPR anymore. However, this would be from the CPR point of view the least
optimal option.
Under option B, which foresees a harmonised framework to assess, communicate and access of
the environmental performances of construction products and the promotion of the reuse of
construction products, most of the SPI’s aims could be addressed in the CPR framework.
However, only with option D, which additionally foresees the possibility to set inherent product
requirements (e.g. durability, reparability, availability of spare parts) as is expected under the
expected requirements of the SPI, the SPI’s aims could be fully addressed within the CPR
framework. For option B these product requirements would have to developed under the SPI.
Sub-option C1 would relate to the SPI similar as option B but even more environmental
requirements would need to be dealt under the SPI considering the refocus of the CPR only on
test methods (i.e. no classes no thresholds). However, under sub-options C2 and C3 a
considerable number of construction products would not or only partially be regulated by the
113
CPR. Therefore, the SPI’s aims would have to be addressed by the SPI directly, the CPR would
cover less products than today, national regulations would cover more with some overlap under
option C3 and mutual recognition would be relevant for more products. The result would be a
complex regulatory structure for construction products.
Thus, only option D of the CPR revision, as the preferred option, can provide a consistent
framework for construction products and align with the SPI’s aims. In this case the CPR would
include empowerments to address the climate and environmental sustainability aspects of
construction products. Under all other options the SPI would have to prioritise construction
products.
1. Four fundamental principles of the interaction between the preferred option and the SPI
Four fundamental principles guided the development of a solution on how the two instruments
shall articulate:
o The situation that products are assessed both under the SPI and the CPR should be avoided
to the extent possible, not least to avoid double burden.
o Further, the two legal frameworks need to be complementary, as e.g. the SPI will cover
intermediate products (such as steel, glass or chemicals) that are used in manufacturing of
construction products;
o Construction products shall be subject to the same level of sustainability requirements as
the other products covered by the SPI. This principle will have many concrete practical
consequences, see e.g. below for the empowerments needed to enable measures similar to
and as stringent as those adopted under the SPI.
o The CPR system has the longstanding practice to balance intended requirements on
construction products with construction work aspects. The SPI intends to set specific
minimum sustainability requirements and information requirements for products, taking
into account safety aspects where relevant. In so far as either instrument covers construction
products, it should be noted that environmental and safety aspects of construction works
will remain the competency of Member States and therefore will not be regulated at the EU
level by any of these pieces of legislation. Environmental and safety aspects of construction
works should nevertheless be taken into account where relevant when setting requirements
on products to supporting Member States’ regulatory needs. The CPR system is a priori
better suited to do so for construction products, i.e. to identify and arbiter in a fine-tuned
way the possible trade-offs between different safety and environmental aspects236
.
236
E.g. it can foresee, by relating to its load bearing performance classes, low minimum recycling quota for concrete
intended to be used for high-rises and high minimum recycling quota for the big majority of concrete intended to
be used for other purposes, thus avoiding that for safety reasons only a low minimum recycling quota can be
established for all concrete.
114
2. The architecture envisaged
In view of these principles, the following architecture is envisaged:
o For construction products, the CEAP and SPI goals shall be mainly realised by means of the
CPR.
o The CPR shall be able to mirror all obligations and requirements able to be set through the
SPI that are relevant for construction products. Hence, it must have extensive
empowerments, both for setting environmental product requirements as foreseen in relevant
policy option for the revision of the CPR and for information requirements on
environmental performance.
o It shall aim at a high level of climate and environmental sustainability at product level
without endangering safety or sustainability of the construction work.
o The CPR method for the assessment and communication of environmental performances
shall to the extent possible follow the corresponding method used by the SPI, as many
suppliers provide components or materials both to the construction products industry and to
other industries.
o To be able to close possible gaps in regulation between CPR and SPI, the SPI should be
empowered to step in.
The architecture can be resumed as follows: Construction product will be formally covered by
the SPI. However, the environmental requirements for construction products, will be regulated
via the CPR and not via Commission acts based on the SPI. The SPI can step in case of
regulatory gaps.
3. Technical fine-tuning
A few elements of fine-tuning will be needed:
o It should be determined precisely under which conditions the SPI can intervene where
requirements established within the CPR system fall without justification below the level of
stringency needed to realise the goals set for SPI, or where the objectives and schedule
pursued by CPR on sustainability aspects are not met. A set of criteria and a process for
joint assessment could be incorporated into the SPI or both the SPI and the CPR to
determine precisely under which conditions the CPR has realised in a satisfactory way the
goals set for the SPI. In case of conflicting views of both sides, the final decision on
whether the CPR has realised the SPI goals in a satisfactory way is incumbent on the SPI
(administrative) system.
o The SPI can cover intermediate products (steel, glass etc.) regardless of what happens under
CPR. The only exception is cement that has no other use than construction.
115
o For most of the products covered by the current EDD237
, they would be primarily regulated
by the SPI in continuation of the EDD, while respecting/taking into account safety aspects.
The CPR would only regulate these products in a complementary way where there is a
noteworthy need to do so, also taking account of other legislation on products such as on
gas appliances, low voltage, and machinery. The rationale for this particular rule is that the
current eco-design aspects are the dominant aspect to be regulated for these products whilst
this will not change with the extension of the current EDD to the future SPI.
As the borderline between these products and ordinary construction products might not be
always clear, both legal instruments shall obtain the empowerment to adopt Commission
acts determining whether a given product falls under one instrument or the other. The
committees involved in the adoption of those acts under CPR and SPI shall deliberate
jointly238
.
o Potential loopholes or overlaps (e.g. products or components with different possible uses)
will be addressed by coordination between the two (administrative) systems. There are
manifold situations that could in theory emerge and that cannot be anticipated other than by
establishing comprehensive empowerments in both legal instruments.
4. Example: Bricks
Modern fired clay bricks are formed and then burned in a kiln to make them durable. Normally,
bricks contain the following ingredients:
- Silica (sand) – 50% to 60% by weight
- Alumina (clay) – 20% to 30% by weight
- Lime – 2 to 5% by weight
- Iron oxide – ≤ 7% by weight
- Magnesia – less than 1% by weight239
Additives can be added in order to improve certain behaviours of the product (e.g. calcium
carbonate).
Under the current CPR, the producer would e.g. declare the following characteristics for a certain
brick (according to the hEN EN771-1:2011+A1:2015):
237
This concerns in particular products and systems in the field of heating, ventilation, cooling and lighting. A
detailed analysis between the involved services currently taking place might come to the result that in particular
certain products formally falling under the current Eco-Design Directive, but for which no effective requirements
have been set up, namely due to technical difficulties to integrate construction works’ aspects, might better go
into the basket of the CPR.
238
A merger of the two committees is unlikely to be legally possible. Conflicting decisions can, however, be
avoided as the Commission has to adopt the acts, not the committees. The Committees would thus informally
deliberate together, but give their opinion formally separately. The Commission will have to adopt the act(s) and
arbiter in case of diverging opinions.
239
See https://en.wikipedia.org/wiki/Brick#cite_note-punmia-17
116
Table 12: Example for a DoP of a certain brick
Source: Ketley Brick
Under the new CPR (preferred option, after the citation of the updated standard), the producer
could inform about the following additional characteristics as in Table 12 below. Blue
highlighted are the new elements introduced in the revised CPR. Most but not all of them also
address the needs of the SPI (marked with YES in the fourth column).
The manufacturer will have to comply with all future product requirements. Regarding the
essential characteristics, the revised CPR will foresee that at least one of these has to be declared.
Additionally, the CPR could make the declaration of certain environmental related indicators
mandatory (probably “Climate change – total a Global Warming Potential total (GWP-total)”).
By means of Commission Acts, the declaration of further indicators could be made mandatory.
The Member States, which are responsible for the safety of construction works, can require
certain performances of essential requirements of the product for certain uses of it.
117
Table 13: Example for a possible future DoP of a certain brick240
Essential characteristics Performance hTS
Related to
SPI
targets?
Dimensional tolerances Tolerance class T2
Range Class R1
EN 771-1: 20XX NO
Configuration Solid Unit Figure 3a EN 771-1: 20XX NO
Compressive strength In Excess of 125 N/mm2 EN 771-1: 20XX NO
Dimensional stability NPD EN 771-1: 20XX NO
Bond strength , flexural bond strength 0.15 N/mm2 EN 771-1: 20XX NO
Active soluble salts content Class S2 EN 771-1: 20XX NO
Reaction to fire Class A1 EN 771-1: 20XX NO
Water absorption <4.5% EN 771-1: 20XX NO
Water Vapour permeability NPD EN 771-1: 20XX NO
Dangerous substances NPD EN 771-1: 20XX potentially
Direct airborne sound insulation Net dry density 2200
kg/m3
EN 771-1: 20XX NO
Thermal resistance NPD EN 771-1: 20XX NO
Durability against freeze thaw F2 EN 771-1: 20XX NO
Climate change – total a Global Warming
Potential total (GWP-total) XXXXX kg CO2
eq EN 15804: 20XX YES
Climate change - fossil Global Warming
Potential fossil fuels (GWP-fossil)
XXXXX kg CO2
eq EN 15804: 20XX YES
Climate change - biogenic Global
Warming Potential biogenic (GWP-
biogenic)
XXXXX kg CO2
eq EN 15804: 20XX YES
Climate change - land use and land use
change b Global Warming Potential land
use and land use change (GWP-luluc)
XXXXX kg CO2
eq EN 15804: 20XX YES
Depletion of abiotic resources - minerals
and metals c d Abiotic depletion potential
for non-fossil resources
(ADPminerals&metals) kg Sb e
NPD EN 15804: 20XX YES
Depletion of abiotic resources - fossil
fuels c Abiotic depletion for fossil
resources potential (ADP-fossil)
XXXXX MJ, net calorific
value
EN 15804: 20XX YES
Water (user) deprivation potential,
deprivation-weighted water consumption
(WDP)
XXXXX m3
world eq.
deprived
EN 15804: 20XX YES
240
Blue highlighted are the new elements introduced in the revised CPR. Most of them also address the needs of
the SPI.
118
REQUIREMENTS ENSURING THE APPROPRIATE FUNCTIONING AND PERFORMANCE
Related to
SPI
targets?
Dimensions for units intended to be used in elements subject to structural
requirements (coming from old E.R.)
NO
The content in calcium carbonate is within 3% NO
The colour is within the range foreseen at the end of the firing process. NO
The bricks are to be installed with the following mortar types: type XXX, type YYY (compatible
with the full de-installation from the wall to foster the reuse and the re-manufacturing of the
bricks.)
YES
INHERENT PRODUCT REQUIREMENTS Related to
SPI
targets?
The bricks are transported in packaging of at most 1.000 kg in weight NO
The GWP-Total for a cubic metre of bricks is at most 50 kg CO2 eq. YES
The calcium carbonate content derives only from a recovery process of the CO2 emitted in
the production of the bricks (in particular in the grinding and firing process). YES
The thermal energy required for the drying process of clay bricks is ensured only by the heat
recovery of the firing process. YES
The minimum durability of the product performances is 100 years YES
The minimum recycled quota of clay is 50%
YES
The packaging of bricks with paper-derived materials. YES
INFORMATION REQUIREMENTS Related to
SPI
targets?
The packaging informs which type of mortars can be used to install the bricks (compatible
with the full de-installation from the wall to foster the reuse and the re-manufacturing of the
bricks.)
YES
The bricks shall display on the largest surfaces the type of mortars that can be used; YES
The packaging shall inform on how the products have to be stocked YES
Using the digital product passport (DPP) the producer of the bricks would need to receive data
from its raw material supplier concerning e.g. Global Warming Potential total ideally provided
under the SPI. The producer would provide all data regarding its bricks via the DPP to its
customers. This information could then be inserted in the digital building passport of a building
where the bricks are installed.
119
ANNEX 12: REFINED INDICATIVE OPTIONS PAPER, APRIL 2020
REFINED INDICATIVE OPTIONS FOR THE REVIEW OF THE
CONSTRUCTION PRODUCTS REGULATION, VERSION 2 - 08.04.2020
The purpose of this document is to present the options regarding the potential revision of the
Construction Product Regulation (CPR). At the same time, this document is deemed to become
the basis for discussion with all interested parties in the course of 2020 and to inform the two
legislators on the many choices and sub-choices to be made.
To reach these goals, the options need to be concrete, whilst remaining as open as possible as
neither the Commission nor the legislators have expressed any views with regard to the elements
contained in these options.
Therefore, this document follows two approaches:
 It describes different ways how the various elements of the options could materialise;
 Where the presentation of different ways of materialisation becomes too complex, the most
far-reaching materialisation has been presented. This is meant to open the space between the
current state and the far-reaching, radical way of materialisation, whilst not favouring any of
these ways.
Accordingly, this text is not deemed to express any views in terms of how the future CPR should
look like, but rather to trigger an open debate.
----------------------------------------------------------------------------------------------------------
Table of contents:
Overview of the options................................................................... 2
Detailed presentation of the options ................................................ 4
Option A – Baseline scenario .......................................................... 4
Option B – Repairing the CPR ........................................................ 6
Option C – Focusing the CPR........................................................ 20
Option D – Enhancing the CPR..................................................... 23
Option E – Repealing the CPR ...................................................... 27
Annex I – Harmonising decision-making under Option B............ 28
Annex II – Enforcement measures under Option B....................... 31
Annex III – HTSs under Options A and B..................................... 34
120
OVERVIEW OF THE INDICATIVE REFINED OPTIONS
The following graph presents the reformulated options and the logical relationship between
them. A detailed description of each option is provided in the next section.
1 “NLF“ stands for „New Legislative Framework“ as laid down in Decision 768/2008/EC. The predecessor to the NLF is the so-
called “New Approach”.
2 “Technical specifications” or “Common technical specifications” are technical provisions adopted by the European Commission
as Delegated or Implementing Acts. This approach is sometimes also called “Old Approach”.
3 These would contain concretions of the Essential Product Requirements, as foreseen in the New Legislative Framework laid
down in Decision 768/2008/EC.
There is a range of links between the different options:
 “Repairing the CPR” (Option B) is a stand-alone option especially based on the issues
highlighted in the implementation report.
 However, it would be absurd to be in favour of focusing (Option C) or enhancing the CPR
(Option D) without at the same time trying to solve the issues identified in the
implementation report (i.e. “Repairing the CPR”). This aspect has been reflected in the
decision tree graph above.
 A combination of focusing (Option C) and enhancing (Option D) is only possible for
Element 2 of Option C (limiting scope to core areas), which could also be combined with
both Options D1 (NLF) or D2 (technical specifications approach).
 It would not make sense to combine Element 1 of Option C (limiting scope to assessment
methods”) with the enhancement by product requirements of Options D1 or D2, as the
121
enhancement of product requirements is only possible where technical specifications are
complete.
 Likewise, there is a logical contradiction between the goal of Options D1 and D2 to establish
mandatory product requirements and making the common technical language optional for
manufacturers (Element 3 of Option C)
122
DETAILED PRESENTATION OF THE INDICATIVE REFINED OPTIONS
OPTION A - BASELINE SCENARIO
No legislative change, but improving implementation through guidance / soft law by the
European Commission.
The Commission would pursue its efforts at implementation level to:
 Streamline the standardisation work, to the (limited) extent that it is in the hands of the
European Commission241
, e.g.:
 following initiatives like the Joint Initiative for Standardisation;
 inviting CEN to ensure clarity of the scope of harmonised standards;
 inviting CEN to front-load242
acceptability criteria to be applied by the European
Commission;
 inviting CEN to ensure internal quality control;
 inviting CEN to speed up the revision of CPD-era standards with high market relevance
or relevance for the safety of citizens;
 inviting CEN to ensure fair and equitable representation of various categories of
stakeholders;
 ensuring that the rules in Articles 3(3) and 27 CPR on classes or thresholds are used and
respected;
 issuing, where needed and promising, new standardisation requests which respond to
current legal requirements, Member States’ regulatory needs and market needs.
 Go against national marks, ex ante processes and verifications, by using informal
dialogue and the formal tools provided by primary or secondary EU law (pending Court
judgement on German case T-229/17), namely by infringement procedures and support for
economic operators acting against infringements at national courts;
 Enhance market surveillance and enforcement (e.g. by recommending highly effective
default/standard market surveillance controls243
), and this clearly in the context of Regulation
(EU) 2019/1020 on market surveillance244
;
 Improve the functioning of EOTA and Technical Assessment Bodies, Notified Bodies,
national authorities, PCPCs245, to the extent that the functioning can be influenced by the
European Commission;
 Increase, to the limited extent possible under the current CPR, the legal sustainability of
the EAD route to CE marking, namely by formal Commission Decisions on the citation of
EADs in the Official Journal;
 Promote the uptake of simplification provisions by clarification / guidance / information,
to the extent possible246
(incl. Art. 5, 9(2), 37, and 38 CPR);
241
The elements listed below have indeed already been pursued by the European Commission services, though with
limited success.
242
This would mean that the acceptability criteria become quality goals for the development of the respective
standards during the entire process of development.
243
E.g., it is very efficient to control formal compliance because in most of the cases of formal non-compliance, the
manufacturers are also non-compliant for requirements of substance, e.g. regarding performance. Hence, a
program could be set-up to list elements of formal non-compliance which can be easily verified.
244
OJ L 169, 25.6.2019, p. 1–44.
245
Product Contact Points for Construction.
123
 Promote the understanding of the CPR in general and in particular with regard to the CE
marking and the Declaration of Performance, and this with special focus on SME and
microenterprises and including the “Your-Europe-Portal” and possibly the “Single Digital
Gateway”;
 Apply the existing empowerments for delegated and implementing acts, as well as the
formal objections procedure, also to complement, correct, overrule or delist deficient
standards. The empowerments to correct or overrule deficient standards are uncertain and
content-wise limited. Thus only a small part of the deficiencies of harmonised standards can,
if any at all, be remedied.
246
The extent is limited because the European Commission cannot disseminate an authoritative interpretation where
different interpretations are equally possible due to an unclear wording of the CPR. Only the European Court of
Justice can provide for authoritative interpretations in such situations.
124
OPTION B – REPAIRING THE CPR
This option would not so much invest into the implementation of the current CPR, but
focus on the repair of the CPR by its revision. Option B might include legislative
amendments to realise the following aims (the envisaged amendments are outlined
below)247:
1) Scope and objectives
 Clarifying and streamlining the scope of the CPR
 Ensuring coherence with other EU legislation
 Addressing environmental aspects of construction products (BWR7)
 Promoting circularity of construction products
2) Harmonisation
 Empowering the Commission to act against partial system failures
 Ensuring the comprehensiveness of the CPR’s Common Technical Language
 Allowing manufacturers to obtain preliminary CE marking
 Reducing the administrative burden for manufacturers
 Improving access to Harmonised Technical Specifications
3) Improving effectiveness
 Improving the use of the CPR’s non-conformity procedures
 Enhancing market surveillance
 Improving the efficacy of Notified Bodies
 Supplementing Notified Bodies with special bodies in charge of BWR7
 Evaluating the role of PCPCs
 Better covering information needs
 Allowing for true claims or no claims
 Better coverage of Member States’ needs by determining the “harmonised zone”
 Improving legal certainty
4) Transition
 Ensuring a smooth phasing in of the revised CPR
1) Scope and objectives
Clarifying and streamlining the scope of the CPR
The future CPR would dispel confusion by specifying application to certain products or
product categories, as well as prevent future confusion by anticipating future developments
and allowing the Commission to modify the CPR’s scope in light of such developments.
This would include the explicit exclusion of certain product categories, in particular to
avoid overlap with other EU legislation (e.g. Drinking Water Directive).
247
It follows from the preliminary remarks of this document that, while any of the elements might find its way into
the final revised CPR, it is extremely unlikely that all the elements will be taken up by the legislator.
125
In order to dispel confusion about the scope of the regulation as much as possible, a revised CPR
would make explicit its application to possibly confusing products or product categories. It
would exclude some products for which there are little regulatory needs from Member States,
little intra-EU trade and little safety or environmental aspects to be covered as well as explicitly
include others for which currently there is uncertainty (e.g. construction products manufactured
for immediate incorporation by their manufacturer in construction works248
). In addition, a
revised CPR would provide clearer definitions of modules, kits and assemblies and specify in
what circumstances they can be considered construction products, as well as stipulate under what
circumstances used construction products newly made available on the market come under its
scope.
To prevent future confusion about the CPR’s scope, a revision would also anticipate new
business models. In anticipation of the increased use of 3Dprinting, a revised CPR would bring
the placing on the market materials and datasets used for the decentralised 3Dprinting of
construction products by other operators than those responsible for the materials and datasets
within its scope249
. It would assign to operators of 3Dprintshops the responsibilities of
distributors under the current CPR. In addition, it would bring prefabricated one-family-houses
of less than 150 m2
exterior ground surface with one floor or of less than 80 m2
with two floors
within its scope (probably without the fundament, the roof coverage and façade coverage to
permit adaptation to Member States’ construction codes). This could be reached by letting them
become a construction product altogether or by qualifying them as a kit.
In terms of clarification, lastly, a revised CPR would allow the Commission to modify the CPR’s
scope, by Delegated Act, to exclude specific products or to close regulatory loopholes, in
particular where this is necessary to clarify the CPR’s application to emerging new business
models. The control mechanisms foreseen for the adoption of Delegated Acts would guarantee
the involvement of Member States and the European Parliament.
Overall, the scope of the future CPR would remain rather broad. However, as today, the
harmonised sphere (i.e. the sphere covered by technical specifications) will be not as large as the
scope of the CPR. The broad scope of the CPR thus has the function to give room for technical
specifications to be developed in accordance with the needs of today and tomorrow.
Ensuring coherence with other EU legislation
In order to ensure coherence with other EU legislation, a revision of the CPR would clarify
its relationship with current rules as well as introduce clear collision rules for potential
future overlap.
Coherence with existing EU legislation would be ensured by making explicit the CPR’s
relationship to overlapping rules (e.g. REACH250
or the Waste Framework Directive251
).
Additionally, a revised CPR would exclude certain construction products to prevent overlap (e.g.
248
Regarding this issue: see also the possibility for Member States to exempt certain economic operators on a
national basis.
249
Regarding the regulatory issues raised by decentralised 3D-printing, see
https://www.howtoregulate.org/decentralized-3d-printing-a-regulatory-challenge/#more-23.
250
OJ L 396, 30.12.2006, p. 1–849 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008D0768).
251
OJ L 312, 22.11.2008, p. 3–30 (https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1576749547065&uri
=CELEX:32008L0098).
126
in relation to the Drinking Water Directive252
). For other legislation (e.g. the Energy Labelling
Directive253
and the Ecodesign implementing regulations254
), coherence would be ensured at the
level of tailor-made Harmonised Technical Specifications that cover all aspects amongst those
that are not governed by the other legal instrument (“Harmonised Technical Specifications” in
this document shall be understood as harmonised standards cited in the Official Journal, or
Implementing or Delegated Acts that contain technical specifications).
In anticipation of the expected increase in energy efficiency, environment, health and consumer
protection rules, a revised CPR would also include provisions governing the CPR relationship
with such future rules.
Addressing environmental aspects of construction products (BWR7)
A revised CPR would speed up the operationalisation of environmental aspects by
introducing a harmonised method for assessing and communicating construction products’
environmental performance.
Amid increasing environmental concern, Member States are likely to increasingly implement
national legislation on how to assess the environmental footprint of construction works and thus
implicitly also construction products. As a result, diverging approaches could weaken the
internal market. A revised CPR would therefore provide a harmonised method for assessing and
communicating the environmental performance of construction products. This would take place
in full coherence with the horizontal approach regarding the environmental assessment of
products, currently under development at EU level. First, Annex I would be amended to include
all relevant environmental aspects in Basic Work Requirement 7255
. Second, the CPR would
prescribe the general principles of a harmonised method for assessing and communicating
construction products’ performance in relation to those aspects; the method itself would be laid
down more precisely in a Commission act. The harmonised method would be based on an
existing Life Cycle Assessment method, such as the Commission’s Product Environmental
Footprint256
or EN 15804, and provide for the development of harmonised Product Category
Rules and the use of common datasets in order to ensure fairness and comparability. Importantly,
a revised CPR would ensure that the resulting environmental data can be used in the assessment
of the environmental performances of buildings257
.
The supervision of the application of these very specific systems could be based on the current
Notified Bodies system which would ensure minimisation of burden. However, in view of
harmonising the assessment of environmental footprints across all product sectors and to
optimise assessment methods, there could also be a separate designation and supervision process
(see below under Supplementing Notified Bodies with special bodies in charge of BWR7).
252
OJ L 330, 5.12.1998, p. 32–54 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31998L0083).
253
OJ L 198, 28.7.2017, p. 1–23 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32017R1369).
254
OJ L 285, 31.10.2009, p. 10–35 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0125), a
list of implementing regulations can be found here: https://ec.europa.eu/growth/single-market/european-
standards/harmonised-standards/ecodesign_en.
255
One might regard some environmental aspects as nowadays being covered in BWR 3 and 6 instead of 7. This
makes the regulatory management difficult.
256
Accessible at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013H0179&from=EN (for
proposed updates see https://eplca.jrc.ec.europa.eu/permalink/PEF_method.pdf).
257
Council of the European Union, Conclusions on Circular Economy in the Construction Sector, 28 November
2019, Doc. 14653/19, n9.
127
Measures directly supporting the reduction of environmental impacts of construction, such as
funding the research and development of more sustainable construction products or the creation
of incentives to limit the surplus of construction products, as suggested by Member States258
, are
beyond the remit of the CPR. As mentioned below, the CPR could contribute indirectly through
facilitation of the use of certain recycled or used construction products by allowing them to be
CE marked. It will also contribute to the transparency of the market by facilitating the
comparability of construction products based on their environmental impacts.
Promoting circularity of construction products
In order to promote the circular economy, the CPR would support the placing on the
market of certain used or used and remanufactured construction products. However,
several aspects of the CPR would need to be adapted. In addition, the issue of trans-
generational availability of product data needs to be tackled. Finally, the CPR might
contain a series of provisions reflecting the Circular Economy Action Plan and the
European Green Deal.
The revised CPR might cover certain construction products which were used and remanufactured
or just used but newly made available on the market, allowing such products to obtain CE
marking and gain access to the European market. We speak here of “remanufacturing” to cover
processes like cleaning, cutting-off of damaged parts and new coating because the term
“recycling” in the meaning of the Waste Framework Directive is limited to items which have
become waste in the first place, whilst the regulatory approach of the CPR would be different,
aiming at used construction products to undergo a process before they become waste259
. The
purpose would be to promote re-use, in particular to reduce construction products’ climate and
other environmental impacts. These goals cannot be pursued without limiting obligations for the
relevant economic operators (when compared to the original manufacturer). This could often
lead to a marginal loss in terms of safety when compared to new products. If the legislators
oppose this approach, a revised CPR might only define a gold standard for certain used or
remanufactured construction products permitting free circulation of these (at the end of the day
very few) products and empower Member States to regulate on all other products not fulfilling
the gold standard. Member States would then be empowered and invited to decide on the best
domestic trade-off between two not fully compatible goals: promoting re-use on one hand and
preserving full safety as for new products. They would most likely make different choices,
adapted to their domestic balancing of interests.
Used construction products will have to be treated slightly different in terms of CE marking,
declaration of performance, performance assessment and certain other obligations of economic
operators. Maybe, the original manufacturer should remain responsible to some extent, e.g. with
regard to information that only he can provide, whilst overlapping responsibility fields of
different economic operators have to be avoided.
Given the likely enhanced longevity of construction products, re-use and remanufacturing will
depend to a large extent on the trans-generational availability of product data. The establishment
of a public database is the classic response to such a situation. However, alternatives have to be
258
Ibid., n7.
259
See Article 3(17) of the Waste Framework Directive, OJ L 312, 22.11.2008, p. 3–30 (https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008L0098)
128
investigated. High market value IT companies are likely to be subject to mergers and
acquisitions, but not disappearance. Hence, a multi-generational public tender might be a suitable
alternative to the not always efficient process of setting up a public database. Alternatively, a
tender could be launched every 5 years, with the running contract to be automatically renewed in
case no competitor makes a potentially better offer.
In addition, the recently published Circular Economy Action Plan260
and European Green Deal261
foresee a comprehensive change of our economy. In the next months and years, there will be a
discussion on which measures shall be taken across all sectors. It might not be ideal for
construction products to be covered by horizontal regulation as horizontal regulation can hardly
be fine-tuned to construction products and might trigger overlapping and partly conflicting
obligations. Hence, it is to be considered to which extent the CPR can and should foresee
measures applying the policies of the Circular Economy Action Plan and the European Green
Deal to construction products. Measures to be considered in this context, as applicable to
individual construction products and taking into account safety aspects, might notably include:
 The obligation to take back construction products which, after delivery onto the construction
site, have not been used262
;
 conformity assessment or other procedural privileges for construction products which are
based on recycled materials, typically derived from a previous construction product which
has become waste;
 minimum recycled content quota; or
 the obligation to give preference to recycled materials where possible;
 the obligation to give preference to materials with a low overall environmental footprint,
unless a higher environmental footprint is later overcompensated at the building level;
 the obligation to refrain from premature obsolescence;
 the obligation to reach state-of-the-art durability; and
 the obligation to facilitate repair, re-use, remanufacturing and recycling by appropriate
design, information and, for repair, accessibility of spare parts.
These measures describe only the frame in which the discussion will take place. Not all these
measures will be taken, the more so as hardly any of them is applicable to all construction
products.
Furthermore, a Sustainable Product Policy Initiative has been announced under the umbrella of
the European Green Deal and the Circular Economy Action Plan. The core of this legislative
initiative will be to widen the Ecodesign Directive beyond energy related products so as to make
the Ecodesign Framework applicable to the broadest possible range of products and make it
deliver on circularity. As construction products would potentially fall within the scope of this
future initiative, there could be multiple interactions between the horizontal policy, its concretion
within the CPR and the many other elements of the CPR directly or indirectly aiming to enhance
the sustainability of the construction products. It even cannot be excluded that the listed
260
Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1583933814386&uri=COM:2020:98:FIN.
261
Available at: https://ec.europa.eu/info/sites/info/files/european-green-deal-communication_en.pdf.
262
This could be economically interesting for both sides if the manufacturer reimburses the transportation costs,
capped by his own manufacturing costs, whilst the dumping of the not used construction product would be costly,
due to national law.
129
measures will mostly be laid down in the horizontal framework. In the latter case, defining a
clear interface and avoiding duplications will be paramount.
Finally, measures to promote the use of tools that could facilitate the recycling or reuse of
construction products, as suggested by Member States263
, are, in so far as such tools apply to the
construction work or demolition level, beyond the remit of the CPR. E.g., both economic
operators who remanufacture used construction products and those who manufacture new
products on the basis of recycled (CP) materials need information about the previous use of the
products, at least so as to appropriately inform their own customers. The CPR revision could,
informally or in the form of a European Commission Recommendation, be accompanied by
some prototype national legal provisions that would generate the relevant data. This example
illustrates a general potential, still to be levied, which consists in developing finely imbricated
regulatory approaches both at the EU and the Member States’ level, to jointly pursue the
common goals.
2) Harmonisation
Empowering the Commission to act against partial system failures
The current situation where the Commission is not empowered to act against system
failures should be remedied. Therefore, a revised CPR would introduce a full range of
empowerments for Delegated and Implementing Acts.
E.g., the situation today is that the legislator has empowered CEN and EOTA to adopt
Harmonised Technical Specifications, thus bodies outside the EU law legitimation chain, without
empowering the Commission in the first place. Thereby the CPR deviates crucially from the
standard pattern of EU legislation according to which the Commission is empowered in the first
place and outside bodies only in the second. In the light of the current breakdown of the
standardisation system under the CPR264
, this unfortunate inversion merits revision, the more so
as the ECJ has in the meantime set up severe conditions for delegation of regulatory powers to
bodies not already mentioned in the Treaties.
But this is only an example of the past, whilst more system failures can emerge in the future. To
reduce the likelihood of another system breakdown, comprehensive empowerments to act against
system failures should be foreseen.
Ensuring the comprehensiveness of the CPR’s Common Technical Language
Using its aforementioned empowerments to act against system failures, the Commission
would complement the Common Technical Language where needed. Furthermore, it might
become possible for other bodies than CEN to develop harmonised standards.
At least in cases where no harmonised standards exist or where these are insufficient265
, the
Commission would be empowered to adopt Delegated or Implementing Acts in order to ensure
the availability of complete assessment methods and criteria for essential characteristics related
to the basic requirements for construction works listed in Annex I. Such acts would contain
Harmonised Technical Specifications or, where needed, normative references to existing
263
Council of the European Union, Conclusions on Circular Economy in the Construction Sector, 28 November
2019, Doc. 14653/19, n15 and n16.
264
For analysis and explanation, see the evaluation of the current CPR accessible at https://ec.europa.eu/docsr
oom/documents/37827 (especially pages 28-31).
265
See e.g. the wording of Article 9(1) of Regulation (EU) 2017/745.
130
standards or other documents containing technical specifications (e.g. EADs). When formulating
technical specifications, the Commission would gather information from different actors,
including namely industry, depending on the products and characteristics under consideration
(e.g. CEN, private standardisation consortia, the Joint Research Centre, industry groups,
Technical Assessment Bodies or Regulatory Advancement Bodies266
, Member States or groups
of Member States), and all this in addition to the already now mandatory consultation processes.
The governance mechanisms foreseen for the adoption of Delegated or Implementing Acts
would guarantee the control by Member States.
In addition to the development of technical content for Delegated or Implementing Acts, it is
conceivable that other organisations than CEN would be charged with developing harmonised
standards. Again we could think of private standardisation consortia, industry groups, Technical
Assessment Bodies or their successors, the Regulatory Advancement Bodies, but also Notified
Bodies or combinations of these actors. The harmonised standards’ path would thus be enlarged.
This would lead to a two-tier system of technical specifications, with Delegated or Implementing
Acts on top and harmonised standards below, the first overruling the second if needed.
Allowing manufacturers to obtain preliminary CE marking
Where a harmonised technical specification is in the pipeline, a revised CPR would allow
manufacturers to have their products assessed by a Regulatory Advancement Body in
order to obtain a preliminary right to CE mark their products. This option would replace
the current EOTA/TABs route.
Assuming the Commission is empowered to ensure the completeness of the common technical
language, the current EOTA/TABs route will become less relevant. Moreover, the EOTA/TABs
route raises many systemic issues, the majority of which have been described in the EOTA
report267
. To close the loophole in case of its deletion and to advance the development of new
harmonised technical specifications in particular for innovative products, the following
procedure could be foreseen. The TABs would be replaced by Regulatory Advancement Bodies
with the primary task to investigate the potential for new Harmonised Technical
Specifications268
. Where the Commission assesses a draft Harmonised Technical Specification,
of which the technical content was elaborated by a Regulatory Advancement Body, as likely to
be cited as Harmonised Standard in the Official Journal or to be transformed into a Delegated or
Implementing Act within one year, this and other Regulatory Advancement Bodies would be
allowed to issue certificates confirming the performance and the conformity of a construction
product as requested in that draft Harmonised Technical Specification. The certificate would be
valid until the actual citation269
or publication270
takes effect or, if no citation / publication takes
place, for a maximum of 18 months. Once the certificate has been issued, a manufacturer could
affix the usual marking followed by the letters “(pr)” and the date of expiry to its products.
Member States would be invited to designate Notified Bodies or authorities to fulfil the role of a
Regulatory Advancement Body. The current TABs would become obsolete.
266
Replacing the TABs, see below under ’Allowing manufacturers to obtain preliminary CE marking.’
267
Accessible at https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1571917158693&uri=COM:2019:800:FIN
(COM/2019/800 final, 24.10.2019).
268
To be adopted either as Delegated or Implementing Act or as Harmonised Standard.
269
In case it becomes a harmonised standard.
270
In case of a Commission act.
131
Reducing the administrative burden for manufacturers
The CPR would strive to reduce the burden for manufacturers by offering simplification
measures, empowering Member States to exempt certain micro-enterprises from the scope
of the CPR, reducing overlap between CE marking and the Declaration of Performance,
and establishing empowerments for the Commission to define conditions for reducing or
lifting AVCP obligations in case of coverage by a liability insurance.
In order to promote the uptake of simplification measures, current provisions could be
considered to be redrafted with a view to clarification, though feasibility has not yet been
completely ascertained. For example, a revised CPR might strive for a clearer difference between
Article 5 and 38, clarify the content of Article 37 and 38, notably by defining more clearly what
is understood as a ‘non-series process.’
To further promote simplification, Member States will be offered the possibility to exclude from
the CPR’s scope enterprises, or at least SME or micro enterprises, individually producing
construction products meant for direct final installation under their own responsibility.
Alternatively, Member States could be allowed to exempt such enterprises from certain
conformity assessment obligations. There would be a size-limit: to ensure that such a provision
does not allow bigger manufacturers to circumvent their obligations, it would exclude cases
where individual production is based on materials provided by another economic operator who
manages a network of SMEs or craftsmen, e.g. under a franchising structure.
To reduce the administrative burden for all manufacturers, a revised CPR would aim to eliminate
the current performance information overlap between the CE marking and the Declaration of
Performance. Moreover, all viable possibilities for digitisation will be used.
Finally, a revised CPR might contain an empowerment for the Commission to adopt Delegated
Acts determining conditions under which AVCP obligations can be reduced or lifted provided
that the manufacturer has concluded a liability insurance which is proportionate to the maximum
damages potentially caused by non-compliant or underperforming construction products. In
cases where risks are not minimal, the exemption from AVCP obligations can be made subject to
the application of a risk reduction scheme271
that is established by the insurance or an association
of insurances and verified by agents acting on behalf of the insurance.
Improving access to Harmonised Technical Specifications
The revised CPR would improve access to Technical Specifications by ensuring translation
into all official languages and free availability.
Under the current CPR, accessing the content of harmonised standards is sometimes made
difficult or costly because they are not available in all official languages or because they are
subject to copyright protection. If, under the future CPR, the Commission adopts Harmonised
Technical Specifications by Delegated or Implementing Acts, such acts would have to be
translated into all official languages, as is the case for all Union acts. Moreover, their content
would be included in the Official Journal and would thus be freely available. Where Harmonised
271
Covering both aspects of performance and aspects of inherent product safety.
132
Technical Specifications contain normative references to other documents, the revised CPR
would ensure that the pertinent content of the referenced documents is available in all languages
and free of charge.
3) Improving effectiveness
Improving the use of the CPR’s non-conformity procedures
By redrafting Articles 56 to 59, a revised CPR would aim to dispel interpretative confusion
and facilitate the use of safeguard mechanisms, possibly even by creating a more
streamlined procedural sequence for the different steps to be taken.
In its current form, Article 56(1) requires for the launch of the procedure both the inaccuracy of a
product’s declared performance and a risk to health and safety. This overly restrictive wording
has led to the current situation where Article 56 is hardly used whilst Article 58 is not used at all.
Article 58 deals with construction products that achieve their declared performance but
nevertheless present a risk to health and safety. By removing the cumulative condition of a
product’s inherent safety and the accuracy of declared performance from Article 56(1), a revised
CPR would therefore aim to unlock the use of the procedures defined in both articles.
Enhancing market surveillance
A revised CPR would enhance market surveillance by strengthening enforcement powers
and aligning the performance of different market surveillance authorities. For the fill list of
envisaged measures regarding market surveillance, see Annex II.
The strengthening of enforcement powers would entail the introduction of appropriate sector-
specific provisions to supplement the horizontal provisions contained in Regulation (EU)
2019/1020 on market surveillance and compliance of products, which are already part of the
Baseline scenario (Option A). Such provisions would include stronger empowerments for market
surveillance authorities related to fact-finding (e.g. the right to confiscate samples or to seize
documents related to presumably non-compliant products) and possible punitive measures (e.g.
the right to impose financial sanctions or to exclude non-compliant operators from public
tenders). Special focus will be put on internet trade. Surveillance would be further enhanced by
allowing manufacturers to sue their competitors and by allowing consumer and environment
organisations to sue non-compliant operators, as well as by setting up a sector-specific EU-wide
whistle blowing portal and a Member State forum to discuss and follow up on external
complaints (using one of the fora provided for by Regulation 2019/1020 if possible272
).
Aligning the performance of different market surveillance authorities would entail the
introduction of absolute273
and parameter-based274
minimum benchmarks for Member State
authorities, for example in terms of the number of full-time equivalents dedicated to CPR-related
surveillance, as well as the introduction of procedures designed to ensure the proper performance
of market surveillance staff. To further improve alignment, appropriate and effective
mechanisms would be set up to allow for communication, coordination and cooperation between
272
See Chapter VIII of Regulation 2019/2011, OJ L 169, 25.6.2019, p. 1–44 (accessible at https://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019R1020&from=EN).
273
Even the smallest Member State should have available three full-time equivalences for the enforcement of the
CPR.
274
Parameters could be the size of the market in terms of €, tonnes or numbers of products sold, inhabitants etc.
Evidently, these parameters can be combined.
133
market surveillance authorities and to make them even mandatory, in particular where this is
necessary to align decision-making practice, see Annex I.
Improving the efficacy of Notified Bodies
A revised CPR would improve the efficacy of Notified Bodies by strengthening the
designation process and introducing control mechanisms for after designation.
In order to moderately strengthen the Notified Bodies’ system, a revised CPR would introduce a
mandatory qualification matrix (matching staff to product groups and technologies), to be used
by Member States when designating Notified Bodies. Member States would also be asked to
provide an accreditation or another assessment report for revision by peers and the European
Commission. It would further grant the Commission the explicit right to block the registration of
a Notified Body in NANDO where there is a lack of evidence of its competence.
Measures to strengthen the work of Notified Bodies towards manufacturers would include:
 Asking Notified Bodies to apply clear pass-fail criteria in their certification practice, thus
avoiding that the Notified Body becomes by repetitive feed-back on non-conformities a
consultant on the way to certification;
 requiring Notified Bodies to change the staff responsible for deciding on certification as
regards products of a given manufacturer every 3 years;
 introducing structured reporting obligations for Notified Bodies to their respective Notifying
Authority;
 making control of subcontracting stricter;
 complementing existing provision to make currently implicit obligations of Notified Bodies
explicit; and
 introducing provisions covering the change of certification from one Notified Body to
another.
Notified Bodies and Notifying Authorities would, together with market surveillance authorities
also be affected by a package of measures enhancing harmonised decision-making, outlined in
Annex I.
Supplementing Notified Bodies with special bodies in charge of BWR7
The current Notified Bodies are not necessarily competent to assess whether the calculation
of environmental impacts by manufacturers is correct or, subject to the AVCP system, to
make such calculations from scratch. The customary notification procedures are not
appropriate to assess these competences either. As these calculations are a science of their
own, it might be necessary to complement the current Notified Bodies’ system by
designating specialised bodies or creating a responsible sub-group.
Today, only very few, namely extremely big, Notified Bodies designated under the CPR would
also be able to obtain the competences for assessing these calculations. These extremely big
Notified Bodies would have a disproportionate, unjustified competitive advantage if the
verification of environmental impact calculations were to be done by the ordinary Notified Body
in charge. Also to keep the small and medium Notified Bodies which are geographically close to
the SME manufacturers alive, it might be useful to split the verification functions for BWR 1 to
6 and the one for BWR 7. In addition, it is questionable whether the current few big Notified
134
Bodies able to calculate environmental aspects suffice, capacity-wise, to cover all (manufacturers
of) construction products. Hence, it might be commendable to integrate other organisations that
have specialised in calculating environmental impacts, hereafter called environmental
verification organisations (EVOs). Such EVOs could either function separately from the current
system or function as a sub-group within the current system, like for example the existing sub-
group of Notified Bodies in charge of fire safety aspects. A possible split of functions could have
another advantage: as some data are relevant both for BWR 3 and 6 on one hand and BWR 7 on
the other, there could be a kind of mutual control between different verification organisations.
EVOs would in particular be called upon to scrutinise whether the methodology applied by the
manufacturer or his suppliers is aligned to best available techniques, to verify samples of
particular calculations, and to assess the plausibility of the overall results or, subject to the
AVCP obligations, to undertake themselves such calculations.
The designation and supervision mechanisms of the EVOs in charge of BWR 7 might differ from
those of the current Notified Bodies because a much closer alignment of practices across
different product sectors must be reached. It cannot be that steel (intended to be) used for cars is
to be evaluated differently from steel (intended to be) used for construction products, and the
same goes for all other materials or intermediate products. To reach this cross-sector alignment
of calculation practices, no designation of an EVO should happen without a methodologically
competent entity (be it the Commission Joint Research Centre or an external, entrusted service
provider) having reviewed the qualification of the candidate EVO. The form of designation
might also vary from that of normal Notified Bodies.
Comparability of environmental impact calculations can only be ensured if there is a more
intense control and alignment in day-to-day decision-making, the more so as the same material
or intermediate product might find its way both into construction and other products. This will
imply the need for some knowledgeable supervisory body, e.g. the Commission Joint Research
Centre, or peer review or both. Where these mechanisms become unsustainable due to a high
number of manufacturers and assessments, a two-level supervisory hierarchy could be envisaged.
The top-level supervisory body would entrust certain experienced and reliable EVOs to become
supervisory bodies for less experienced EVOs.
When developing further concepts on the verification of environmental aspects, it has to be
borne in mind that there is an inherent tension between the goal of alignment of practices across
all product sectors on one side and the goals of minimising the burden specifically for the
construction products industry and adapting to construction products specificities on the other
side. The two sides cannot be fully served at the same time. But many questions must stay open
at this point in time as the development of concepts regarding these questions happens also in
other products sectors or at a cross-sector level. The final proposal for a new CPR cannot create
a construction products island, but must be in harmony275
with concepts used across other
products sectors. Moreover, it cannot be excluded that harmony must be sought for in the light of
the different potential uses of environmental impact calculations. In Member States, these
calculations are starting to play a role in very different contexts, namely in fiscal policy and for
public tenders. Also for manufacturers of construction products it would not be wishful to have
275
„Harmony“ does not necessarily mean full alignment. Full alignment should not be strived for because
construction products need specific environmental read-outs for the environmental assessment of construction
works. These read-outs are not needed in most other product sectors.
135
to calculate the environmental impact in several different ways. Hence, a consensus should be
found which goes beyond the field of product regulation.
Evaluating the role of PCPCs
The Commission will investigate how Product Contact Points for Construction are
currently being used.
In case they are not or hardly used for their main purpose, i.e. providing information about
Member States’ building regulations relevant to the intended use of construction products, a
different purpose could be envisaged. Namely, they could be put in charge of providing
information on the harmonised system created by and under the CPR. To some extent, they do
this already today, we learnt.
Better covering information needs
In order to better cover Member States’ and stakeholders’ information needs, a revised
CPR would allow, in certain specified cases, additional information to be included in the
Declaration of Performance as well as empower the Commission to make mandatory the
declaration of certain characteristics. Manufacturers can declare additional performances
and characteristics.
To better cover information needs of architects and users, a revised CPR would include a
positive list of additional information that manufacturers are allowed to include in their
Declaration of Performance (additional to a product’s performance in relation to the essential
characteristics covered by Harmonised Technical Specifications). Examples might include
information on the presence or absence of certain chemical components276
, the product’s
conformity with Member State regulations, its durability in the meaning of usability endurance
of the product, or a link to instructions for use and installation. The Commission would be
empowered to modify this positive list by means of Delegated Acts in light of information needs
or other developments.
Currently, manufacturers only have to declare performance for one essential characteristic of a
construction product in order to obtain CE marking. While it is not intended to oblige
manufacturers to declare performance related to all product characteristics covered by
Harmonised Technical Specifications, a revised CPR would, similar to its current Article 3(3),
empower the Commission to lay down mandatory characteristics by Delegated or Implementing
Acts where necessary, most frequently in the context of having such a specification cited or
adopted. Thus the revised CPR would start with the current situation where only one of the
characteristics needs to be declared. However, based on a more precise analysis of the respective
product group, regulatory needs, safety and environmental aspects, certain characteristics can be
made gradually mandatory.
True claims or no claims
Wherever a performance or product characteristic is declared, whilst there is not yet any
Harmonised Technical Specification, the manufacturer would be obliged to ensure the
276
In line with, not duplicating REACH (OJ L 396, 30.12.2006, p. 1–849, https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX:32008D0768) and other legislation on chemicals such as Regulation 1272/2008
on classification, labelling and packaging of substances and mixtures (OJ L 353, 31.12.2008, p. 1–1355,
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008R1272).
136
correctness of the declared information by using at least “state of the art” methodology.
This brings standards into play in an additional (third) way.
To avoid misleading claims, the manufacturer should be obliged to assess the performance or the
characteristic in accordance with a methodology that fulfils the quality notion “state of the art” or
“best available technique” (the latter being more severe). The “state of the art” or “best available
technique” is to be determined on a case-by-case basis in the light of available methodological
documents, namely but not exclusively international and EU standards. Thus, in addition to the
incorporation of the content of standards into Commission acts277
(1st
path) and harmonised
standards becoming harmonised technical specifications (2nd
path), there would be a third, more
remote and indirect way of using the valuable content of standards (3rd
path). This third path
would not be subject to the same legal and formal constraints as the other two. It might
resuscitate some of the advantages of the “New Approach” in its initial stage, meaning before
full legal control of harmonised standards became obviously mandatory through Regulation (EU)
1025/2012 on European Standardisation and rulings of the European Court of Justice.
Better coverage of Member States’ needs by determining the “harmonised zone”
Following a given procedural order, Member States would, after a fair standstill period,
become free to establish national requirements where EU provisions do not yet
satisfactorily cover the relevant aspects.
In order to better cover Member States’ regulatory needs, a revised CPR would allow the
Commission to determine by Delegated or Implementing Acts the exact borderlines of the
“harmonised zone”278
, the sphere effectively covered by EU law. This clarification would work
with product lists and lists of aspects covered. This would bring the legal concept of
“exhaustiveness” (hindering Member States to regulate or otherwise interfere) in line with the de
facto degree of “completeness” of the CPR Acquis. It would also reduce a good part of the legal
uncertainty of the current CPR.
The procedure upstream to the determination of the “harmonised zone” together with the
development of technical specifications would give Member States the right and obligation to
communicate needs for technical aspects to be covered. If, after determination of the
“harmonised zone”, Member States discover additional regulatory needs, they have to
communicate them first to the Commission so as to give opportunity to cover them at EU level.
Only after a standstill period of e.g. 4 years Member States would be authorised to establish
additional national requirements, provided there is evidence of the relevant Member State’s
regulatory need and if the claimed needs are legitimate. In order to avoid too the establishment of
protectionist trade hurdles by the back-door, some acceptability criteria for Member States’
needs should be developed – not every need, even when well documented, might be legitimate.
A variant for the above mentioned standstill period could be that, after obtaining a formal279
or
implicit280
validation, any Member State could introduce a national assessment method, to be
used in relation to essential characteristics still lacking a harmonised EU method, for the duration
277
Either by taking over text or by normative reference where, exceptionally, translations into all languages exist.
278
The expression “harmonised zone” has been chosen on purpose because the expression “harmonised sphere”,
referred to in the context of rulings of the European Court of Justice, is broader and also encompasses aspects
that are not covered by harmonised technical specifications in reality.
279
By a decision of the European Commission.
280
No objection by other Member States or the European Commission.
137
of that standstill period. Notified Bodies across the EU could also apply that method and issue
certificates on the basis of it. Other Member States would be obliged to recognise as well the
respective assessment method and certificates.
Improving legal certainty
A revised CPR would improve legal certainty by addressing interpretation issues and
clarifying the validity of Commission acts adopted prior to the application date of a revised
CPR.
Many of the sections above deal also with legal uncertainty. In addition, the revised CPR could
contain the following elements:
Under the current CPR, several ambiguous definitions have led to divergent interpretations. A
revised CPR would seek to address such interpretation issues as far as possible. This would
include making more specific existing definitions (e.g. for ‘construction product’, ‘construction
work’ and ‘placing on the market’) as well as introducing new definitions where necessary (e.g.
for ‘assembly’, ‘module’ and ‘building’).
An internal analysis showed that under the current CPR, substantive legal uncertainty exists
regarding the validity of acts adopted under the CPD, its predecessor, in particular where their
content is not fully in line with the CPR. To prevent this from occurring again, a revised CPR
would lay down clear rules on the validity of Commission acts adopted prior to its application
date. This is evidently also part of the smooth phasing-in of the revised CPR.
4) Transition
Ensuring a smooth phasing-in of the revised CPR
For a variety of legal reasons, only very few of the current Harmonised Technical
Specifications, Commission Delegated and Implementing Acts could be used immediately
and as such under the future CPR. Hence, clear transitional provisions would provide for a
multiannual phase-in period, during which a large part of the CPR Acquis would be
readopted whilst the old CPR remains applicable.
Almost the entirety of the current CPR Acquis has to be rebuilt and readopted. This will not
happen overnight. Given the size of the current Acquis (444 Harmonised Standards and 157
EADs281
), the entire exercise will take at least 5 to 10 years. In the meantime, transitional
provisions would provide, where appropriate and for a limited time, for the continued application
of the current CPR’s Acquis for those product groups not yet covered by Harmonised Technical
Specifications fit for the future CPR. Both regimes would thus exist in parallel for many years to
come. This would trigger the need for authorities and economic operators to distinguish between
products placed on the market under the old CPR and those placed on the market under the new
CPR, possibly even with a distinct marking. A distinct marking would also make sense in so far
as, contrary to other sectors, the CE marking on construction products refers to performance
declaration, not to conformity. To shift to a distinct marking on the occasion of the introduction
of the new CPR could thus kill two birds with one stone.
281
There are 210 in NANDO, but these include superseded ones.
138
To organise this process, transitional provisions would lay down priorities according to which
the development of the future CPR Acquis could be planned. Priority would be given to product
groups that are of high importance to Member States (in view of the safety of buildings), that are
most relevant for the internal market, or that raise problems regarding inherent product safety,
consumer protection, or the environment (see legal basis of Article 114 TFEU).
As it is likely that the harmonised technical specifications adopted under the CPD and the CPR
cannot be transferred to the future CPR, there is a need to adopt a high number of technical
specifications in very short time, that is to say much less than the previously mentioned 5 to 10
years. As the first wave of technical specifications will mainly consist of technical content of the
current Harmonised Technical Specifications, major impacts for economic operators are not to
be expected. Therefore we expect the acts to be adoptable without impact assessments.
Lastly, the transitional provisions would stipulate the continuation of the legal validity of
certificates and other documentation issued under the current CPR or before, or clarify that
certain document types have to be reissued, either by the end of the general transition period or
by the respective ends of the “coexistence” periods between the current and the new CPR
regimes per product family.
139
OPTION C – FOCUSING THE CPR
The CPR would be focused, freeing up capacity to improve the quality and
comprehensiveness of the remaining harmonised sphere. This option builds on the
“Repairing CPR” option, meaning that it would, to the extent that there is compatibility,
include all the elements described in Option B. The three elements presented here could be
combined:
Element 1: Limiting the CPR’s scope to assessment methods
The Common Technical Language would be limited to assessment methods
Harmonised Technical Specifications would include only assessment methods for performance
calculation. No performance threshold levels or classes would be laid down at EU level. No
other requirements or “characteristics” would be established at EU level.
Assessment methods would be developed as set out under Option B
As a primary root, the Commission would adopt Delegated or Implementing Acts containing
Harmonised Technical Specifications indicating which assessment methods apply to certain
identified essential characteristics of a specific product family. In doing so, the Commission
would base itself on the assessment methods included in existing standards. The result would be
a list of assessment methods specifying the range of product families and the essential
characteristics they address, published in the OJEU.
National construction regulation would refer to these harmonised assessment methods
Member States would be obliged to refer to harmonised assessment methods when setting up
product-related requirements in their construction regulation and to list the product families to
which a particular assessment method should be applied. Indirectly, therefore, manufacturers of
products covered by harmonised assessment methods will be obliged to use those methods when
selling on the EU market.
Entire product groups for which no harmonised assessment methods have been provided would
fall outside the harmonised sphere and would be covered freely by national legislation, including
national assessment methods and EU rules on mutual recognition. The Member States would
have the same freedom with regard to the essential characteristics of a certain product group that
have not been covered by a harmonised assessment method.
Element 2: Limiting the CPR’s scope to core areas
Core areas would be identified during the legislative process
The CPR’s scope would be redefined to focus on core areas, and this would be done at the level
of the CPR itself so that the CPR would need to be revised to go beyond the boundaries of that
scope. The core areas would be identified according to three criteria: the coherence of Member
States’ regulatory needs282
, the relevance for the environment or for citizens in terms of safety283
282
Thus excluding areas where Member States’ regulatory expectations and needs differ so much that a harmonised
approach barely makes sense.
283
“Safety” in a broad sense, including e.g. harmful emissions.
140
and market relevance. These criteria are thus not only applied by the Commission when setting
priorities for formulating Harmonised Technical Specifications as described under Option B, but
already by the legislator when determining the overall scope of the CPR.
This approach would permit a better focusing on the regulatory needs of the Member States. It
would give Member States the certainty that the EU cannot quickly extend the harmonised zone
beyond what is laid down as the scope of the CPR. It would also to some extent "legalise" the de
facto market fragmentation that already exists in some areas. On the other hand, it would deprive
the Commission and the Member States to react quickly to new harmonisation, safety or
environmental needs
Outside core areas mutual recognition would apply
For essential characteristics and products outside the resulting core areas, Member States could
lawfully regulate performance assessment and communication (subject to Articles 34-36 TFEU).
National requirements subject to notification under Directive 2015/1535 would be notified
through TRIS (Technical Regulation Information System284
), allowing the Commission to follow
up by initiating amendments to harmonised technical specifications if appropriate. If the
Commission does not, mutual recognition rules would apply (to the limited extent they are
effective in the construction sector285
). For all other aspects, Option B would apply, however
limited to the reduced scope.
Element 3: Making the Common Technical Language optional for manufacturers
Manufacturers could choose whether they use the Common Technical Language
In case manufacturers choose not to use the common technical language to assess and
communicate performance, they would not be allowed to affix CE marking or deliver any
document that could be mistaken for a Declaration of Performance.
Member States would remain obliged to offer market access to manufacturers that choose
to use the Common Technical Language
Member States would continue to be required to offer a path to market access based on national
requirements referring to the Common Technical Language. Manufacturers would thereby have
the certainty of access to the European market if they use the Common Technical Language.
Thus, the free circulation of products, which is the CPR’s main goal, would be ensured for CE
marked products.
Member States would be allowed to regulate for an alternative path to market access not
based on the Common Technical Language
Member States may wish to take into account in their national requirements the possibility of
manufacturers not using the Common Technical Language. Such deviating requirements would
284
The (EU) 2015/1535 procedure aims to stop barriers before they materialize in the internal market. Through
TRIS, Member States notify their legislative projects regarding products and Information Society services to the
Commission which analyses these projects in the light of EU legislation. Member States participate in this
procedure on an equal footing with the Commission and they can also provide their opinions on the notified
drafts.
285
See the analysis of the effectiveness below at the end of Option E (the repeal option).
141
constitute an alternative path to market access, so that manufacturers have a choice. More leeway
would thus be given to the use of national marks, to the extent that these do not hinder market
access based on the Common Technical Language286
.
Evidently, such an alternative national path might lead to higher performance requirements and
subsequent marketing advantages, although free circulation is ensured. Alternatively, an
alternative national path might also lead to lower requirements than in the Common Technical
Language path, e.g. by allowing test methods which are less severe than the ones foreseen at EU
level or by refraining from minimum threshold levels. Therefore, the EU regulation would no
more achieve the goal of establishing minimum environmental or safety requirements.
Accordingly, Element 3 might not be in line with the mandate of Article 114 TFEU to pursue a
high level of protection of these values.
OPTION D – ENHANCING THE CPR
Under this option, a revised CPR would introduce product requirements dealing with
product inherent aspects287 in order to protect health, safety and the environment. It builds
on Option B “Repairing CPR”, which in turn includes the Baseline scenario outlined under
Option A. Such product requirements could follow two different approaches, which are
outlined under D1 and D2. The elements common to both approaches are outlined here:
Product requirements would be gradually introduced into the CPR system
A revised CPR would gradually introduce product requirements for certain specific product
inherent aspects of selected products or products families. Going beyond the provision of a
common technical language for the assessment of performance, such requirements would
prescribe a products’ mandatory minimum requirements.288
The current common technical
language approach would thus be complemented by proper product requirements aimed at
ensuring the health and safety of citizens and protection of the environment. The degree to which
health and safety of citizens and protection of the environment can be improved would determine
priorities.
Tailor-made product requirements would in particular ensure inherent product safety
This option would allow for the introduction of effective product safety requirements and
obligations meant to guarantee inherent product safety into the standards (see D1) or in the
technical specifications (see D2). Inherent product safety should be distinguished from
construction work safety, which is framed by national legislation. Manufacturers of the products
concerned would have to comply with such requirements and obligations even if their products
are not covered by national regulation on construction works, for example in the case of products
sold directly to consumers in DIY (do-it-yourself) shops.289
They would not have the possibility
286
However, unless deliberately decided otherwise by the legislator, ECJ ruling C-227/06 would apply, limiting the
room for national marks.
287
Thus not with aspects that become relevant for health, safety and the environment via the construction works.
288
These requirements can go beyond threshold levels as they might also touch upon non-scalable characteristics,
labelling, and instructions for use etc. They might relate to physical characteristics like (absence) of sharps,
mechanisms or other characteristics protecting users, IT safety, electrical and mechanical safety etc., but also to
environmental characteristics like easy disposability or recyclability.
289
European Commission services took note of the fact that some national regulation on construction works also
covers DIY products. However, they are also aware that this is anything but systematic. Furthermore, the
142
to refrain from CE marking and thereby avoid EU regulation. A similar logic could apply to
environmental product requirements.
The CPR itself would include a first thin layer of horizontal product requirements
A first thin layer of “horizontal” environmental and product safety requirements and obligations
would be laid down in an Annex to the CPR itself. Currently, the European Commission and the
Member States are assessing which types of requirements and obligations are necessary or at
least useful for the vast majority of construction products. In order to avoid repetition in each
individual Harmonised Technical Specification, these requirements and obligations would
already be laid down horizontally. A certain number of these horizontal requirements and
obligations are likely to be identified in particular with regard to instructions for (safe and
environmentally friendly) use and environmental information290
. Some of them might also be of
such fundamental character (e.g. the obligation to disclose chemical components) that it is
legally preferable, if not necessary, to establish them at the level of the CPR itself.
The establishment of such a thin layer of horizontal requirements and obligations would establish
a kind of minimum protection of the three goals prescribed by the CPR’s legal basis (Article 114
of the Treaty on the Functioning of the European Union) besides ensuring the functioning of the
internal market: environmental protection, safety and (in our case: indirectly) consumer
protection. It would have this role wherever Harmonised Technical Specifications are
incomplete. In particular in the first phase of the applicability of the new CPR, it is likely that
some Harmonised Technical Specifications will be incomplete.
Background: One has to distinguish between the safety of construction works and the inherent
safety of construction products as such. Article 114 TFEU, the CPR’s legal basis, requires a
“high level of protection”. The Commission’s proposal therefore must be oriented towards this
goal. The Commission has an obligation to investigate possibilities to enhance citizens’ health
and safety by establishing requirements for the inherent safety of construction products. It
should also be remembered, however, that Option D is only an enhancement option, an add-on.
It builds on the CPR as “repaired” under Option B and still has the Common Technical
Language approach at its core. It is thus an enhancement option and does not propose a radical
system change.
OPTION D1 – NEW LEGISLATIVE FRAMEWORK APPROACH FOR PRODUCT
REQUIREMENTS
Beyond the initial thin layer of horizontal environmental and product safety requirements
and obligations laid down in an Annex of the CPR, Option D1 would formulate product
requirements based on the New Legislative Framework approach. In case the resulting
requirements address certain aspects covered by the CPR’s horizontal requirements in a
more specific manner, these more specific requirements would supersede the relevant
horizontal requirements.
 Essential requirements would be laid down in standardisation requests
application and in particular the market surveillance varies strongly. In view of all this there is a regulatory
loophole.
290
Which could well go beyond the information needed under BWR 3, 6 and 7, namely in view of chemicals
legislation.
143
For the products or product families concerned, essential requirements would be laid down in
standardisation requests addressed to CEN.
 CEN would be requested to develop voluntary standards
CEN would be mandated to develop standards providing technical detail. These voluntary
standards would be harmonised by referencing in the OJEU.
 Compliance with standards would provide presumption of conformity
Following the voluntary standards would lead to the presumption of a product's conformity
with the relevant essential requirements, but other means to prove conformity would remain
possible.
 The Declaration of Performance291 would, depending on the case, be complemented by
a Declaration of Conformity and both would be combined in one document.
OPTION D2 – TECHNICAL SPECIFICATIONS APPROACH FOR PRODUCT
REQUIREMENTS
Beyond the initial thin layer of horizontal environmental and product safety requirements
and obligations laid down in an Annex of the CPR, Option D2 would formulate product
requirements based on the Technical Specifications Approach. In case the resulting
requirements address certain aspects covered by the CPR’s horizontal requirements in a
more specific manner, these more specific requirements would supersede the relevant
horizontal requirements.
 Detailed requirements would be included in Harmonised Technical Specifications
Considering the problems experienced with the quality of the harmonised European
standards at the core of the current CPR system292
, it appears appropriate to envisage the
possibility for reconsidering the Technical Specifications Approach for product requirements
(the “Old Approach”). For the products concerned, the relevant Commission acts would lay
down technically detailed product requirements.
 Requirements would be developed in line with Option B
Like under Option B, the Commission would be empowered to adopt Delegated or
Implementing Acts containing, alongside the technical specifications pertaining to the
Common Technical Language approach, detailed product requirements. When formulating
technical specifications, the Commission would gather information from different actors
depending on the products and characteristics under consideration (e.g. CEN, private
standardisation consortia, the Joint Research Centre, industry groups, Regulatory
Advancement Bodies, Member States or groups of Member States). Such Commission Acts
291
One and the same product may fall under the classic Common Technical Language Approach (triggering the
need for a Declaration of Performance) and the newly introduced product requirements, triggering the need for a
Declaration of Conformity e.g. for inherent aspects of product safety.
292
In most cases, harmonised standards do not cover all the essential characteristics impacting the Basic Work
Requirements listed in Annex I to the CPR; certain draft standards remain blocked by industry representatives to
protect national markets; most harmonised standards offered by CEN for citation in the OJ contain legal and
other formal deficiencies (this is the reason for a high rejection rate by the COM services and cumbersome repair
exercises, all delaying the timely adoption and subsequent OJ listing of harmonised standards); harmonised
standards quite often contain content which aims at the protection of certain major companies and thus turn out to
be SME-unfriendly; finally, EADs are often cast in such a way that they cannot be used for a broad range of
products (hence they cannot always serve as substitutions for missing harmonised standards).
144
would be developed step by step and in accordance with clear priority setting, in particular
by Member States.
 Harmonised standards would continue to play a role
Harmonised European standards would have a new role because the technical specifications
adopted by the Commission would partly refer to such standards, e.g. to the test methods
contained in the standards. Other content of the harmonised European standards could simply
be integrated into Harmonised Technical Specifications.
 The Declaration of Performance293 would, depending on the case, be complemented by
a Declaration of Conformity and both would be combined in one document.
OPTION E – REPEALING THE CPR
1. The CPR would be repealed without any substitute
There would be no harmonisation, i.e. no common technical language, no mandatory harmonised
standards, no voluntary harmonised standards either, no basic work requirements for
construction works, no obligation to draw up a Declaration of Performance or communicate it,
no CE marking, no classes or thresholds, no AVCP systems, and no conditions for classification
determined at EU level.
2. Relying on mutual recognition would likely fragment the construction products market
Based on experience outside the sphere for which requirements are set under the CPR doubts
must be raised as to the effectiveness of the principle of mutual recognition. The main reason for
the supposedly weak effectiveness of the principle is that Member States regulations on
construction works (and thus implicitly the product requirements derived therefrom) differ very
much, as can be proven by the fact that national regulation requires very different performance
levels. Hence, little conclusions294
can be drawn from the acceptance of a certain product with
regard to Criteria list A in Member State X for the Criteria list B in Member State Y, the Criteria
list B reflecting other construction work needs that are easily explained by natural factors. A
manufacturer strategy based on mutual recognition thus becomes particularly risky in the field of
construction products. These elements may explain why, in reality, manufacturers mostly seem
to adapt to the different national requirements in all the different Member States where they wish
to market their products, without relying on mutual recognition. Repealing the CPR is likely to
compel manufacturers of ever more construction products to go down this road.
Equally, the current CPR-imposed criteria on the design of public tenders would cease to apply.
The diversity of requirements established in public tenders would widen even more.
3. The repeal would not contribute to the European Green Deal
It must be noted that a repeal without replacement would not, contrary to a CPR as revised as
outlined in Options B and D, provide a substantial contribution to the European Green Deal (e.g.
by providing harmonised information on construction products’ environmental performance or
introducing environmental product requirements).
293
See footnote 51.
294
Regarding the likelihood of acceptance or matching.
145
ANNEX I [OF REFINED OPTION PAPER] – PACKAGE OF MEASURES AIMED AT
HARMONISING DECISION-MAKING (OPTION B)
In order to harmonise the decision-making of market surveillance authorities (MSAs),
Notified Bodies (NBs), Environmental Verification Organisations (EVOs) and Notifying
Authorities (NAs), a revised CPR would include a package of measures providing for their
structured communication, coordination and cooperation, as well as lay down
requirements for their qualification and performance. The measures described here would
be part of Option B.
Note: The measures described here are unlikely to be selected all or even by majority. The
purpose of this listing is just to describe what might be needed to be considered as possible
means for harmonising decision-making.
Setting up a structured information mechanisms
As a necessary fundament for harmonised decision-making, a revised CPR would set up a
structured mechanism for the exchange of information between the relevant actors. Such a
mechanism would allow for the identification and communication of interpretative
questions, as well as the collection and evaluation of different possible interpretations.
To achieve this aim, a revised CPR might possibly:
 Set up a single information infrastructure;
 Provide clear rules on when and how relevant actors must report on new interpretative
questions;
 Provide for the possible use of artificial intelligence to detect recurring patterns (e.g. similar
decision types) and deviating decisions (to prevent unjust decisions, any final decision would
be left to a human agent);
 Permit 3rd
parties (citizens and economic operators) to raise interpretative questions (after the
single information infrastructure is up and running).
Ensuring common approach to interpretative questions
A revised CPR would provide for the centralised processing of identified interpretative
questions, with validity for all relevant actors.
In addition to possible informal interpretations or interpretation rules, the Commission would be
empowered to adopt Implementing Acts containing binding interpretations or implementation
rules. This empowerment would be used to address pertinent interpretative questions raised
through the structured information mechanism. The resulting binding interpretations would be
based on careful analysis of the practical, legal and economic impacts of various possible
interpretations (maybe even following a testing period of the chosen interpretation). Moreover,
before adopting a binding interpretation, the Commission would discuss the options and their
effects with the relevant actors and with Member States in virtual fora. Lastly, from the moment
an interpretative question is taken under consideration by the Commission a standstill period
might apply under certain circumstances to avoid a drifting apart of views.
Introducing rules for the qualification of agents
Knowledge gaps may lead to wrong decisions. As most actors decide correctly and wrong
decisions are unlikely to be consistent, knowledge gaps also lead to non-harmonised
146
decision-making. Qualification measures addressed at the relevant agents could close such
gaps.
To close existing knowledge gaps and to prevent the emergence of new knowledge gaps, a
revised CPR would provide for the following measures aimed at ensuring the qualification of the
agents of MSAs, NBs, EVOs and NAs:
 Inserting minimum qualification criteria;
 Introducing mandatory periodic training after qualification;
 Ensuring availability of online training modules or at least visual recordings of training
courses to complement live training courses.
Introducing quantitative minimum requirements
Non-harmonised decision-making often also results from uneven or insufficient human
resources. In technical fields, the lack of laboratory capacities plays a role. To address
these issues, a revised CPR would set up minimum requirements, in terms of output and
input, for relevant actors (in addition to those already mentioned in Option B).
A revised CPR might possibly include two kinds of minimum requirements:
 Input requirements: proportionate, parameter-based minimum resources (for example in
terms of full-time equivalents) to be made available by relevant actors;
 Output requirements: different minimum control measures depending on the relevant actor,
e.g. a minimum number of unannounced verification to be performed by MSAs.
Promoting a common decision-making culture
Promoting a collaborative attitude among the relevant actors can further favour
harmonised decision-making. When relevant agents do not hesitate to inform and ask their
peers about interpretative issues, when such issues are viewed as occasions for common
learning, they are more likely to be settled in a harmonised way.
In order to promote a common decision-making culture, a revised CPR might possibly:
 Establish requirements for periodic trainings that might bring together actors from different
Member States;
 Ensure that such trainings are based on common simulated cases;
 Ensure that such trainings also address cultural aspects (e.g. pace of decisions);
 Create a legal basis for sharing national responsibilities and attribution of shared roles
(depending on the context, roles could be shared according to knowledge and capacities).
Ensuring the involvement of peers
At the level of decision-making itself, a revised CPR could provide for the involvement of
peers where appropriate. The structure of involvement would depend on the context and
relevant actors.
Examples of possible measures might possibly include:
 Reporting obligations on past decision-making practice and discussion thereof;
 Mandatory participation to meetings dealing with decision-making practice;
147
 Reporting obligations on inspection planning (indirectly disclosing intended decision-
making);
 Peers observe each other’s enforcement activities like audits and inspections of economic
operators and publish a report on their performance;
 Allow for joint decision-making of different relevant actors;
 Setting up a formal or informal entity to coordinate decision-making across different relevant
actors, which would also disseminate information and promote alignment of views among
relevant actors.
148
ANNEX II [OF REFINED OPTION PAPER] – PACKAGE OF MEASURES ON
ENHANCED ENFORCEMENT (OPTION B)
A revised CPR would improve enforcement by introducing a series of measures already to
be foreseen in the legal text (which are not or not fully covered by Regulation (EU)
2019/1020 on market surveillance and compliance of products). The measures listed below
are part of Option B.
Note: The measures described here are unlikely to be selected all or even by majority. The
purpose of this listing is just to describe what might be needed to be considered as possible
means for enhancing enforcement.
Rights to sue:
 Give competitors the right to sue non-compliant manufacturers and their distributors (such a
right has been foreseen in EU and Member States’ competition law and some Member States
have extended the right to sue competitors to cases where EU product law is infringed);
 Give consumer organisations the right so sue non-compliant manufacturers and their
distributors (such a right has been foreseen in some pieces of EU environmental law).
Minimum requirements:
 Establish minimum benchmarks for market surveillance, e.g. in terms of qualified full-time
equivalences to be made available or of enforcement measures or actions to be taken;
 Establish procedures and other arrangements for the proper performance of the duties of
market surveillance staff, e.g. a qualification matrix to be used when hiring staff.
Investigative powers:
 Give market surveillance authorities the power to require any public authority, body or
agency within the market surveillance authority's Member State, any natural or legal person
or any economic operator to provide any information, data or document (in any form or
format and irrespective of its storage medium or the place where it is stored) on compliance,
physical aspects, supply chain, distribution network or quantities? (this empowerment goes,
except for economic operators, beyond the empowerments foreseen in Article 14(3) of
Regulation (EU) 2019/20 - letters (a) and (b) thereof only relate to economic operators);
 Give market surveillance authorities the right to request information directly from economic
operators in another Member State;
 Give market surveillance authorities the right to obtain information from internet service
providers on communication and data-exchange of presumably non-compliant operators and
supervising the internet communication or telecommunication (meta-data or even content) in
a personalised or generic way;
 Give market surveillance authorities the right to acquire product samples, including under a
cover identity, to inspect them and to reverse-engineer them in order to detect non-
compliance and obtain evidence;
 Give market surveillance authorities the right to visit and inspect, without prior
announcement, offices, factories, warehouses, wholesaling establishments, retailing
establishments, laboratories, research institutions and other premises or vehicles in which
products are produced or kept (this empowerment is broader than the empowerment foreseen
149
in Article 14(3)(e) of Regulation (EU) 2019/1020 in so far as it is not limited to premises
‘that the economic operator uses’);
 Give market surveillance authorities the right to seize and take possession of all documents,
data and products which might serve as means of proof for stating the non-conformity;
 Give market surveillance authorities the right to confiscate samples of possibly non-
compliant products;
 Give market surveillance authorities the right to seize and take possession of all non-
compliant products, be they in a possession of the person responsible for the infringement or
another person;
 Give market surveillance authorities the right to confiscate non-compliant products or
property used in or in connection with the illegal activity or obtained in return or in
connection with the illegal activity;
 Give market surveillance authorities the right to compel the attendance of witnesses and the
production of evidence by third parties, when there are reasons to believe or first evidence
exist that an infringement is ongoing;
 Give market surveillance authorities the right to acquire data and documents from third
parties, including against payment or providing advantages.
Information exchange:
 Give market surveillance authorities appropriate and effective communication and
cooperation mechanisms with other market surveillance authorities and other relevant
authorities, including customs authorities for the identification and examination of potential
risks related to counterfeit products and withdrawal of such products from the market;
 Give market surveillance authorities the right to communicate or exchange data with third
parties, other authorities, courts, natural or legal persons or other jurisdictions and adopting
agreements in this regard to obtain further evidence on possible non-compliance;
 Give market surveillance authorities the right to use, without any further formal
requirements, evidence produced by a market surveillance authority in one Member State as
part of investigations to verify product compliance.
Sanctioning powers:
 Give market surveillance authorities the possibility to block or to remove content from
internet websites offering products which are not in compliance with requirements applicable
to them (hereafter: “non-compliant products”) or to order the explicit display of a related
warning to end-users when they access the website (this empowerment goes beyond the
empowerment of Article 14(3)(k) of Regulation (EU) 2019/1020 which requires that there is
no other effective means to eliminate a serious risk);
 Give market surveillance authorities the right to recover from non-compliant economic
operators costs for state action triggered by infringements (Article 15 of Regulation (EU)
2019/1020 gives Member States the right to do convey such empowerments to authorities,
but does not itself convey the empowerment);
 Give market surveillance authorities the right to impose other enforcement costs
150
 Give market surveillance authorities the right to decide on penalties, including fines, for non-
compliant natural persons (Article 41 of Regulation (EU) 2019/1020 covers only penalties
against economic operators);
 Give market surveillance authorities the right to impose financial sanctions for non-
compliant legal persons (Article 41 of Regulation (EU) 2019/1020 covers only penalties
against economic operators);
 Give market surveillance authorities the right to enforce financial obligations and financial
sanctions or penalties via confiscation of products, rights or money;
 Give market surveillance authorities the right to ban non-compliant economic operators from
receiving subsidies;
 Give market surveillance authorities the right to exclude non-compliant economic operators
from public tenders;
 Give market surveillance authorities the right to practice public naming and shaming of non-
compliant economic operators and, in particular, to publish any final decisions, final
measures, commitments given by the economic operator or decisions, including the
publication of the identity of the economic operator who was responsible for the non-
compliance and of the identity of the natural persons acting on behalf of these operators;
 Give market surveillance authorities the right to extend sanctions to mother or sister
companies and their agents, at least in cases where a company has been set-up as a shield for
illegal activities;
 Give market surveillance authorities the right to extend sanctions to partner companies and
their agents where they contributed to illegal activities.
151
ANNEX III [OF REFINED OPTION PAPER] – HARMONISED TECHNICAL
SPECIFICATIONS UNDER OPTION A (TODAY) AND UNDER OPTION B (POSSIBLY
TOMORROW)
1. Issues of the current HTS system
As the system of the current HTSs is well-known and described in detail in the Commission
evaluation295
and the EOTA report296
, we focus on highlighting the issues which might be
regarded as necessary to be solved:
a) Both Harmonised Standards and EADs (European Assessment Documents)
 Translations not available in all EU languages, thus potential formal invalidity;
 Infringement of requirements for legal preciseness by imprecise normative references (e.g.
undated or to standards which have been withdrawn or contradicting normative reference
chains);
 De facto little involvement of authorities and stakeholders other than industry;
 Weak or absent democratic legitimation;
 High risk of deviation from legal requirements (e.g. giving leeway to economic operators
not foreseen in law);
 Mixture of requirements that are necessary for the respective regulation and others that are
not (“superfluous” ones);
 Requirements which give privileges to certain manufacturers and keep out of the market
others;
 SME underrepresentation;
 No possibility for authorities to step in when CEN / EOTA do not deliver.
b) Only Harmonised Standards
 Extremely high rejection rate;
 Refusal of CEN to establish internal legal control, which can be explained by:
 CEN’s strategic preference for ISO alignment versus EU regulatory alignment.
c) Only EADs
 No formal validation of EADs by Commission decision297
and no empowerment for such
validation and hence potential formal invalidity in application of ECJ rulings since 1958 (
295
°COM/2019/800°final,°24.10.2019,°accessible°at°https://eur-lex.europa.eu/legal-
content/EN/TXT/?qid=1571917158693&uri=COM:2019:800:FIN ().
296
°COM/2019/800°final,°24.10.2019,°accessible°at°https://eur-lex.europa.eu/legal-
content/EN/TXT/?qid=1571917158693&uri=COM:2019:800:FIN
297
The right of Commission staff to object to the EADs does not constitute a formal decision of the Commission.
152
see the Meroni case298
- for more recent rulings applying Meroni, see for example
Parliament v Council299
and the ESMA case300
);
 EAD proliferation – too many variants;
 EAD proliferation – EADs going beyond the purpose of EADs (“innovation”), becoming
de facto another type of Harmonised Standard;
 Too many stages for EADs, legal uncertainty, which can lead to ETAs being issued
without formally valid EADs.
2. Outline of the HTS / standardisation system under Option B
a) The current system of Harmonised Standards would continue to exist, but for the time
being only as a second best (or “back-up”) solution301
. The range of standardisation
organisations would be enlarged, including a follow-up organisation to EOTA. Some of the
issues listed above can be remedied within the context of the revision of the CPR, but not all.
Others can only be addressed, if at all, by a future revision of the Regulation (EU) 1025/2012
on European Standardisation. Therefore, the current system of Harmonised Standards under
the CPR needs to be complemented. It could become complemented “above” by a thick new
level of Harmonised Technical Specifications adopted by the European Commission (letter
b)) and “below” by a thin layer of indirect references to standards (letter c)).
b) The main pillar of Option B is the re-introduction of the centuries old principle that
regulation is, as default path, formally adopted by public authorities302
, in this case by
the European Commission. This does not imply that the technical content of the HTS is
elaborated by the European Commission or other authorities. Private bodies (CEN, EOTA or
its follow-up organisation, industry associations, private standardisation bodies or consortia,
Notified Bodies, or combinations/consortia of these) and Member States’
authorities/institutes would all be welcome to provide technical content which can be cast
into a harmonised standard format for Harmonised Technical Specifications adopted by the
European Commission. Subject to readiness, available resources and specialisation, one or
the other or a combination of these actors would become entrusted with elaborating the
technical content, whilst the European Commission, together with authorities, would ensure
by supervision that regulatory needs are covered and that legal requirements are fulfilled.
Entrusted actors would be asked to provide for transparency towards other stakeholders and
to invite them to contribute to the development of the technical content. At the level of the
formal adoption by the European Commission, the usual public consultation mechanisms
298
Judgement of 13 June 1958, Meroni v High Authority, C-10/56, ECLI:EU:C:1958:8, https://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61956CJ0010&from=EN
299
Judgement of 5 September 2012, Parliament v Council, C‑355/10, ECLI:EU:C:2012:516, paras. 64-82,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=126363&pageIndex=0&doclang=EN&mode=ls
t&dir=&occ=first&part=1&cid=935739
300
Judgement of 22 January 2014, UK v Council and Parliament, C-270/12, ECLI:EU:C:2014:18, paras. 41-55,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=146621&pageIndex=0&doclang=en&mode=lst
&dir=&occ=first&part=1&cid=5618770
301
In the medium or long term, however, it might become very relevant again, see Section 4. Outlook.
302
This is anything but new, history of regulation has not started with the New Approach. The New Approach is
rather a historic exception to the rule. It is also an exception when we compare the overall number of sectors
covered by the New Approach versus others. Finally, the New Approach is also, in a worldwide perspective, the
exception from the rule.
153
would kick-in. Hence, there would be a double-layer of stakeholder information and
participation.
On an organisational level, neither CEN nor (the follow-up organisation of) EOTA would be
obliged to substantially change its internal organisation. They can provide technical content
on the basis of their current internal organisation or another. But both would be discharged of
formal adoption mechanisms, which will facilitate their task and permits them to focus on
what they are particularly good at: developing technical content.
The integration into Commission acts of technical content can happen in two ways:
 by inserting the content;
 by referencing the content laid down in a document which is publicly available and
translated into all EU languages.
The latter path could in particular be practiced if CEN wished to continue to formally adopt
standards. In this variant, little would change for CEN, except, for the variant of the second
indent, the need to ensure translations into all languages via the national standardisation
bodies303
. In return, the complex administrative process in relation to the European
Commission, namely the standardisation requests and the responses thereto, could be
dropped.
c) On a level “below” the current Harmonised Standards, a thin layer of indirect references to
standards (not necessarily “Harmonised Standards”, i.e. standards covered by a
standardisation request of the European Commission) would be added. To avoid misleading
claims, the manufacturer should be obliged to assess the performance or the characteristics
they claim in accordance with a methodology that fulfils the quality notion “state of the art”
or “best available technique”304
. Although “state of the art” can be interpreted to mean the
best available method305
, this outcome is by no means certain. The severity of this quality
notion will thus depend on the formula chosen (“best available technique” being more
severe). What then constitutes the “state of the art” or “best available technique” is to be
determined on a case-by-case basis in the light of available methodological documents,
namely but not exclusively international and EU standards. De facto, standards would
become the main source for the concretion of these abstract terms, as they are already today
in those Member States that use this regulatory technique. The indirect referencing avoids so
far the need for severe legal scrutiny of the standards. It thereby pursues the intention of the
now already old “New Approach” of using the flexibility of standards without buying-in the
formal burdens of regulation.
303
In case of insertion of CEN technical content into the legal acts adopted by the European Commission, the
translation would be ensured by the European Commission itself.
304
See for example Article 5 of Delegated Regulation (EU) 665/2013 supplementing Directive 2010/13 on the
energy labelling of vacuum cleaners (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:0201
3R0665-20170307&from=NL), which states that ‘the information to be provided […] shall be obtained by
reliable, accurate and reproducible measurement and calculations methods, which take into account the
recognised state-of-the-art measurement and calculation methods’.
305
See for example Opinion of the Advocate General of 26 January 1999, Commission v Germany, C-198/97,
ECLI:EU:C:1999:23, para. 21,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=44378&pageIndex=0&doclang=EN&mode=lst
&dir=&occ=first&part=1&cid=5784189 in which the ‘État optimal de la technologie’ was taken to be equivalent
to ‘state of the art technology’.
154
3. Risks and downsides of the HTS / standardisation system under Option B
a) The subsidiary new element of Option B is the introduction of a thin layer of indirect
references to standards. This regulatory technique has been used with success and for many
decades by some Member States and in particular Germany. It has some downsides at the
level of legal preciseness. However, if courts play the game as they did in Germany, the legal
preciseness increases over time306
. As mentioned above, the interpretative outcome also
depends on how the reference is formulated.
b) The main element of Option B is the re-opening of the classic, centuries old path for adoption
or regulation by authorities. This path has proven to be viable across sectors, across
jurisdictions and across centuries. There is no reason why it should not be viable in the case
of the CPR either.
c) However, we cannot, at this point in time, estimate the speed of delivery of the system. The
speed of delivery depends on a long range of factors such as cooperation and engagement of
industry, of CEN, of (the follow-up organisation of) EOTA, of Member States authorities
and specialised institutes, but also Commission human resources and intra-administrative
obligations / hurdles for the formal adoption of HTSs as Commission acts.
d) Assuming an equivalent engagement of industry, there is no reason to assume that the output
in normal times, once basic mechanisms have been established, would be lower than under
the current standardisation system – even when we disregard that currently virtually no
harmonised standards are newly cited in the Official Journal. As can be seen in many
different sectors, the European Commission is able to produce a high number of regulatory
acts in a given sector307
.
e) However, a precondition is that Member States engage slightly more than currently. They
should engage at the same level as they used to engage – speaking now across all sectors, not
just for the CPR – in standardisation one or two decades ago. One or two decades ago,
Member States were still very active also at the level of Technical Committees of
standardisation bodies, avoiding that standards deviate too much from legal requirements308
.
This level of engagement would need to be re-established to reach a full output of HTSs. Not
more.
f) Without any engagement of Member States and of industry, the European Commission
would, with the help of its consultants, its Joint Research Centre and contractors, still be in a
position to prepare HTSs. However, the overall speed and thus output would be dramatically
reduced, whilst being still higher than the output of the current system in terms of HTSs
really becoming law. Hence, as much as it would be disappointing if there was no
contribution from Member States and from industry, the situation would be much better than
306
See for example the Judgement of 30 September 1996 of the German Federal Administrative Court (http://w
eb.archive.org/web/19991009005152/http://www.vrp.de/archiv/rupdig/mrz97/aktuell/ar387.htm), in which the
“generally recognised state of the art” was defined as those methods that “are tested and proven in practice.”
307
Such regulatory „machines“ exist for instance in the field of pharmaceuticals, automotive industry, transport,
agriculture, food and feed safety, to name but a few.
308
With successive budget cuts, the engagement of Member States in standardisation bodies has dwindled and, in
parallel thereto, the mismatch with regulation has increased.
155
today309
. Accordingly, there does not seem to be an alternative for opening the path of
adoption of technical regulation by the European Commission310
.
4. Outlook
From the current perspective, where the standardisation path is at least as procedurally
cumbersome as the adoption of technical regulation by the European Commission, it might be
questionable why the standardisation path should be kept as an alternative for the CPR.
However, things can change, as they changed in the past. Adopting technical regulation by the
European Commission was easy three or four decades ago, but became increasingly cumbersome
in the last two decades311
. This gave standardisation a tremendous comparative advantage, in
addition to the much less severe legal and formal control. With the Regulation (EU) 1025/2012
on European Standardisation312
and the fall-out of the James Elliott ruling313
in the years after
2016, however, the standardisation path is now equally if not more cumbersome than the
adoption of technical regulation by the European Commission314
. Hence, the adoption of
technical regulation by the European Commission is a – comparatively – more promising path.
Subject to a revision of the Regulation on European Standardisation and of the regulatory
policies for regulation of the European Commission this might change again. Hence, it is
commendable to keep both paths open and to complement both with the thin layer of indirect
references to standards.
In an even broader perspective, having three different regulatory techniques at hand provides a
large range of choices and possibilities for intelligent combinations that can be arranged in a
flexible way in accordance with the concrete situation at a given time. The actual handling of the
three regulatory techniques should be made in view of the concrete situation, namely the
respective product family, the knowledge, performance and willingness of potential cooperation
partners, the specific regulatory needs of authorities and industry, the speed of update to
technical progress needed etc. Our services are confident that, if all parties involved realise the
full potential given by pragmatic tailor-made combinations of these three techniques, the current
debate on whether this or that path “is the right one” will be quickly forgotten.
309
Admittedly, the situation could be hardly worse than today.
310
The detailed reasons for the failure of the current standardisation system in the field of the CPR have been
described in detail in the recently published evaluation, accessible at https://eur-lex.europa.eu/legal-
content/EN/TXT/?qid=1571917158693&uri=COM:2019:800:FIN (COM/2019/800 final, 24.10.2019). Many
efforts have been spent in vain to get the system afloat again.
311
There were many very valid reasons for the establishment of the different procedural steps, from the better
integration of EU policies to a better control by the legislators to more transparency towards trade partners and
stakeholders.
312
OJ L 316, 14.11.2012, p. 12–33, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32012R1025
313
Judgement of 27 October 2016, James Elliot Construction, C-613/14, ECLI:EU:C:2016:821,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=184891&pageIndex=0&doclang=en&mode=lst
&dir=&occ=first&part=1&cid=5620375
314
We exempt cases where an impact assessment is needed.
156
ANNEX 13: OPTIONS AND ELEMENTS DISCARDED
1. Discarded options
During various surveys315
of the years 2018 to 2019, stakeholders and Member States gave their
view on the idea of reverting to voluntary standards under the CPR. Almost unanimously, they
voiced massive concerns against replacing the current mandatory standards by voluntary
standards for the assessment of the construction products’ performance, e.g. in terms of load
bearing capacity or fire resistance. The main argument was that voluntary standards cannot
guarantee that manufacturers assess the performance of their products in the same way so that
the national building codes can rely on the assessed performance. This view coincides with the
Commission services’ view. Accordingly, the return to voluntary standards has been sidelined in
the Refined indicative options paper and thus from the later surveys and the public consultation,
whilst elements of the voluntary standards’ concept could be maintained in Options C and D.
In late 2019, two Member States voiced the view that the CPR revision should focus on “getting
the boat afloat for standardization” in a first round, tackling the remaining issues in a second
legislative procedure. The same view was taken by numerous stakeholders. A deeper analysis of
this suggestion led to the conclusion that the issues of the CPR are so much intertwined that
focusing on standardization cannot even solve the standardization issue. Moreover, political
imperatives, in particular the need to incorporate the goals of the European Green Deal and of
the Circular Economy Action Plan, made it necessary to go for a more comprehensive solution.
Late 2020 and early 2021, business associations presented a concept paper containing a so-called
“Option F”316
. This concept paper was focusing on a new way of elaborating technical
specifications which resembled to the elaboration mode of Option D2 for product requirements.
As a result, there would be only Commission acts with – to the extent possible - mandatory
references to standards, and this also for the performance assessment of essential characteristics.
Besides the fact that this “Option F” could not anymore be integrated into the public
consultation, it was perceived as being too radical, for scrapping completely the use of
harmonised standards as distinct path for the development of technical specifications. Instead of
having at its disposal two elaboration modes for technical specifications, the Commission would
again only have one. Bearing in mind that one elaboration mode can easily fail, as seen today,
the likelihood of a system functioning can only be increased by having two or more elaboration
modes.
315
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute (DTI),
Global Data Collection Company (2018). Supporting study for the Review of the Construction Products
Regulation: Evaluation.
VVA Economics & Policy, Joint Institute for Innovation Policy (JIIP), Danish Technological Institute (DTI),
Global Data Collection Company (2018). Supporting study for the Review of the Construction Products
Regulation: Impact Assessment.
Public consultation on EU rules for products used in the construction of buildings and infrastructure works
(January-April 2018), https://ec.europa.eu/docsroom/documents/32082.
316
See Results of the Survey on the Refined indicative options paper, April-August 2020, Annex II on option B,
available: https://ec.europa.eu/docsroom/documents/43103.
157
2. Discarded elements
In April 2020, Option B was designed as a full package of repair elements that could be
combined in multiple combinations. It had been decided to keep all the debatable elements on
the table as long as possible in order to be transparent towards the stakeholders: only by
presenting all the elements, we made clear how big the playing field of the CPR revision is. This
with the view of allowing them to comment on all the elements which potentially could find its
way into the revision.
The downside of not discarding some of the potential elements of the options at an early stage
was that the options containing these elements were assessed by the stakeholders more critically
than they would have been otherwise. However, the differentiated views with regard to all the
elements permitted identification of the precise interests of the stakeholders and thus correction
of the bias in favour of keeping the current regulatory system.
For several elements the iterative process with stakeholders and deeper analysis has triggered the
need to discard them at a later point in time, just before or even during the drafting of the Impact
Assessment report. This was the case in particular where the feedback was turning out to be very
negative.
In consequence, after the feedback received on the Refined indicative options paper, several
elements initially considered within the context of Option B and presented as such in April 2020,
in the Refined indicative options paper, have been discarded, amongst them namely:
- Preliminary CE marking on the basis of assessments of Regulatory Advancement Bodies
which were to replace the Technical Assessment Bodies (EOTA route): Stakeholders and
authorities feared legal uncertainty, in particular regarding the transition from the preliminary
to the definitive CE marking;
- Establishment of special bodies for the environmental assessments: Stakeholders and
authorities saw no need for these dedicated bodies as the current notified bodies framework
permits specialisation, e.g. on fire safety, and the combination of the involvement of different
notified bodies;
- Improving the efficacy of notified bodies: Deviation from the default provisions established
by the NLF would create different practices amongst different product sectors;
- Streamlining of the procedures in case of non-conformities: Deviation from the default
provisions established by the NLF would create different practices amongst different product
sectors;
- Enhancing market surveillance: Instead of extending the empowerments, some measures
were taken in line with the SPI;
- Reducing or lifting AVCP obligations in case of coverage by liability insurance: This was
felt to be an important further complication of the system with little practical added value;
and
- Better access to harmonised standards by translation into all official languages and free
availability: Budgetary constraints made it necessary to drop this point.
158
ANNEX 14: JAMES ELLIOTT JUDGMENT (C-613/14)317
In the James Elliott judgment,318
the Court gave a preliminary ruling addressing important issues
in relation to the role of the European standard-setting bodies and the harmonised standards
adopted in compliance with New Approach directives. In particular, for the first time, the Court
established its jurisdiction to give preliminary rulings on the interpretation of harmonised
standards, clarifying their position in relation to EU law. For the ground-breaking outcome of the
case and for the institutional implications it entails, the judgment in James Elliott Construction
represents a fundamental step in the evolution of the case law concerning standardisation in its
relation to the EU legal system and to the law in general.
The Court started by recalling its case law according to which it has jurisdiction to interpret not
only “acts of the institutions, bodies, offices or agencies of the Union”, but also other acts which
are “by their nature measures implementing or applying an act of EU law”319
. Thus, in a
teleological reading of Article 267 TFEU, the Court can establish its jurisdiction also over such
acts of other bodies in order to ensure the uniform application of EU law320
. Acknowledging that
the standard-setting bodies cannot be described as “institutions, bodies, offices or agencies of the
Union”, the Court considered whether the standard at issue represents a measure implementing
or applying an act of EU law.
For this purpose, it analysed the provisions of the Construction Products Directive and stressed
the relevance of the essential requirements set out by European legislation321
, as well as the
control exercised by the European Commission in initiating, managing and monitoring the
procedure for the adoption of a harmonized standard322
. In light of this, the Court concluded that
the standard at issue is “a necessary implementing measure” of the Construction Products
Directive323
, and therefore it can be considered as “part of EU law”.324
As such, the harmonised
standard can be subject to interpretation by the Court, which thus establishes its jurisdiction to
give a preliminary ruling. Moreover, the lack of binding effects of harmonised standards does
not preclude the Court from ruling on its interpretation, having regard to the legal effects of the
presumption of conformity to the New Approach directives that the compliance with the standard
entails.
With reference to the third question, the Court clarified that the presumption of fitness for use of
a construction product manufactured in compliance with a harmonised standard must be read in
connection with its purpose of guaranteeing the free circulation of the product within the internal
market and is meaningful only in this context. Therefore, national courts cannot apply it to give
meaning to general clauses of national law, such as the obligation to supply products “of
317
Excerpts from the Common Market Law Review 54: 591–604, 2017.
318
Judgment of 27 October 2016 in case C-613/14 James Elliott Construction Limited v Irish Asphalt Limited,
ECLI:EU:C:2016:821.
319
Judgment, para 34. The ECJ refers to Case C-192/89, S.Z. Sevince v. Staatssecretaris van Justitie,
EU:C:1990:322; Case C-188/91, Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, EU:C:1993:24.
320
Judgment, para 34.
321
Ibid., para 43.
322
Ibid., para 45.
323
Ibid., para 43.
324
Ibid., para 40.
159
merchantable quality” or “fit for purpose”.325
Having replied to the referring court’s question in
the negative, the fourth and fifth questions could be omitted.
Finally, as regards the second question, concerning the application of the CIA Security
International and Unilever case law to the Irish provision on the need to provide products “of
merchantable quality”, the Court considered whether this provision falls within the scope of the
notification duty imposed by Article 8 of Directive 98/34. Since the Irish provision did not fall
within the concepts of “technical specification”, “technical regulation” or “other requirements”
within the meaning of Article 1 of Directive 98/34, the Court concluded that there was no need
to notify such a provision to the European Commission and, therefore, the Irish judge may apply
it in the proceedings before it.
325
Ibid., para 59.