This article was originally published on LexisNexis in September 2022
The European Commission published a proposal to revise the EU Construction Products Regulation (EU) No 305/2011. In this article, we consider why the EU Construction Products Regulation is being revised, what the proposed key changes are, what this revision could mean for manufacturers and the next steps of the legislative process.
Why is the EU Construction Products Regulation being revised?
The EU Construction Products Regulation (EU) No 305/2011 (EU CPR) currently standardises the use of CE (Conformité Européenne) marking and the provision of information about the performance of construction products in the EU.
The European Commission’s proposed revision to the EU CPR (the revised CPR) aims to modernise the existing rules in order to:
- Ensure that the design and manufacture of new construction products promote sustainability, durability and recyclability.
- Assess and communicate the environmental performance of products.
- Improve surveillance and enforcement.
- Improve competition and the free movement of goods in the EU.
The revised CPR identifies areas for reform and addresses them in broad terms. Many specific details are currently unclear, but Article 87 of the revised CPR provides for the European Commission to adopt ‘delegated acts’ (secondary legislation) supplementing or amending the content of the revised CPR.
What are the key changes?
The revised CPR makes significant changes regarding product sustainability, labelling and traceability, with greater oversight by national and European authorities, and an emphasis on digitising relevant information. It affects more types of construction product than the current EU CPR.
A new definition of ‘construction product’
In the EU CPR, this is ‘any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof and the performance of which has an effect on the performance of the construction works with respect to the basic requirements for construction works’.
In the Revised CPR, the term is altered to mean ‘any formed or formless physical item, including its packaging and instructions for use, or a kit or assembly combining such items, that is placed on the market or produced for incorporation in a permanent manner in construction works or parts thereof […] prior to being incorporated in a permanent manner…’, with ‘permanent’ defined to mean ‘for a duration of two years or longer’.
A wider regulatory scope
The revised CPR is broad in its application. Pursuant to Articles 2 and 3, among other things it will expressly regulate (with certain exceptions):
- 3D-printed construction products.
- Reused construction products.
- Components of construction products.
- Prefabricated houses in an assembled condition.
Additional design and manufacturing obligations
Under Article 22(2), manufacturers are subject to additional environmental obligations unless compliance would negatively impact product or building safety, or breach other requirements. They must:
- Design products and packaging to improve environmental sustainability to ‘state of the art’ level, and to facilitate the upgrading, repair, reuse and recycling of products.
- Prioritise the use of recyclable and recycled materials.
- Prevent premature obsolescence of products, using designs and reliable parts to ensure the lifespan does not fall below the average durability of products of that type.
- Make information (including warnings) available regarding the use, repair and recycling of products.
- Make spare parts available for a period of ten years after the product is last placed on the market.
Additional information, markings and labelling
The revised CPR institutes the following important changes:
- Article 13 introduces a new obligation for manufacturers to provide a Declaration of Conformity, confirming that the product meets with specified requirements regarding marking, labelling, etc. Article 9 maintains the EU CPR requirement for a manufacturer to prepare a Declaration of Performance confirming that the product meets the ‘essential characteristics’ such as fire resistance.
- Under Article 17(2)(d) manufacturers are required to generate and add a permalink (a permanent URL address) to pertinent product information.
- Under Article 21, products not intended for consumers or non-professional users must be marked as being ‘only for professional use’.
- Under Article 22(5), ‘traffic light labelling’ will be required regarding a product’s environmental performance.
Increased scrutiny and accountability
The revised CPR provides for:
- Establishment of a complaint portal under Article 68 to facilitate reports of potential non-compliances.
- Each Member State’s market surveillance authority to undertake a minimum number of product checks under Article 73.
- Recovery of document inspection and product testing costs from manufacturers by authorities under Article 75, in addition to penalties imposed by EU Member States for breaches under Article 90.
- Establishment of a national information system for each EU Member State under Article 77, and the prospect of an EU construction products database and Digital Product Passports under Article 78.
What is the practical impact of this revision on manufacturers?
The implications are not yet fully clear, given the relative lack of detail in the revised CPR. Nonetheless, manufacturers can expect to bear a far greater practical, administrative and financial burden than presently, with additional obligations regarding the design, manufacture, declaration, labelling, and repair of a broad range of construction products.
Distributors and retailers are likely to require better transparency around the construction products supplied to them, and manufacturers and their products will face greater scrutiny for the purpose of market surveillance. Manufacturers will bear the costs of inspections, in addition to penalties for non-compliance.
Furthermore, manufacturers will need to upload product and customer information onto EU and national databases. Industry bodies and manufacturers have expressed concerns about the protection of intellectual property rights and the confidentiality of data held on databases owned and controlled by others.
Article 92 of the revised CPR provides for a lengthy transition period and the repeal of the current EU CPR on 1 January 2045. The extended use of parallel systems will add to the regulatory burden for manufacturers, the supply chain and the construction industry across Europe.
Finally, the revised CPR introduces significant divergence between the applicable regimes in the UK and the EU. European manufacturers who supply the UK market, and vice versa, will need to adapt to complying with differing regimes.
It is unclear when the revised CPR and any initial delegated acts will take effect. Given the considerable change in approach envisaged by the revised CPR, it is unlikely to take effect soon.
The EU’s further indications regarding next steps and the timescale are awaited.
- A new regulatory regime and a new regulator: a new era for the regulation of construction products in the UK?
- The building and fire safety regulatory framework: new national construction products regulator