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EUROPEAN COMMISSION

ENTERPRISE AND INDUSTRY DIRECTORATE-GENERAL


Chemicals and construction

Construction


Brussels, 16 October 2006

CONSTRUCT 06/761

Commission services position regarding specific provisions of
Council Directive 89/106/EEC (CPD) and related issues

Having examined for some time a number of issues regarding particular provisions of the CPD in more detail from a legal point of view, the Commission services have found some cases of practice which are incompatible with the provisions of the Directive or are not supported by them, and have concluded that some MS and other stakeholders should make changes to the way in which they implement the CPD. This is further developed in this document.


The legal examination of these issues undertaken by the Commission services has always been based on the text of the CPD as being the only authorised reference in this specific field and, where appropriate, on the relevant provisions of the Treaty of the European Community and relevant secondary legislation derived from it. This examination has been thorough and conducted largely in close collaboration with the Commission’s Legal Service, with the results receiving the latter’s explicit agreement.
Some issues have become the subject of infringement proceedings opened by the Commission. To avoid this situation and also cases in which parties acting in good faith go beyond the legally binding provisions, and in order to explain future changes to Commission practice, this document provides the legal rationale with regard to the following issues:

- A-Deviations in harmonised European standards,

- national implementation of the co-existence period for harmonised European standards,

- co-existence period for European Technical Approval Guidelines,

- cumulative Attestation of Conformity.

- manufacturers’ declaration of conformity, and certificate of conformity,


In this context this document also considers the role of Guidance Papers issued in the past.

1. A-Deviations in harmonised European standards


  1. The Commission does not oppose the CEN “Internal Rules” which allow including an
    A-deviation in the European standard, but considers that in such a case this European Standard cannot be accepted as harmonised.

  2. However, following the judgement1 of the Court of Justice of 2 December 1980, in case 815/79 regarding Council Directive 73/23/EEC (Low-voltage Directive), the European Commission has adopted on 15 December 1981 a Communication2 of which the statements concerning A-deviation apply by analogy also to the CPD and read as follows:

    “4.2.1. The bodies notified by the Member States … are responsible for drawing up harmonized standards … . The majority vote procedure adopted unanimously by those bodies meeting … appears to be entirely in accordance with [the specific provision in the Directive], according to which standards must be drawn up by "common agreement".


    4.2.2. The existence of national laws or regulations cannot prevent the drawing up of harmonized standards in accordance with [the specific provision in the Directive]. Nor can such provisions be imposed in addition to, or instead of, the technical specifications contained in the harmonized standards, as they have ceased to be binding.
    There is therefore no longer any point in mentionin
    g such provisions and "A-deviations" in "harmonization documents" or "European standards".”

  3. In accordance with what is stated under point 2, as well as in terms of the CPD, the Commission cannot accept an A-deviation in a harmonised European standard.

    According to Article 6 of the CPD Member States shall not impede the free movement, placing on the market and use in their territory of products which satisfy the provisions of the Directive. As a consequence, the manufacturer using the hEN and having his product CE marked (therefore, satisfying the provisions of the CPD) is allowed to place this product on the market of the entire EEA according to the same conditions and fulfilling the same requirements.

    In the case of an A-deviation for one or more Member States the manufacturer would be obliged to undertake different or additional tests or to fulfil additional requirements or he would be exempted from certain testing required by the standard as indispensable for determining the performance characteristics; all these deviations would be incompatible with Article 4(2) and Article 6(1) of the CPD.


2. national implementation of the co-existence period for harmonised standards (hEN)


  1. According to Article 4 (2) of the CPD “Member States shall presume that products are fit for use if they enable works in which they are employed, provided the latter are properly designed and built, to satisfy the essential requirements of the Directive, where such products bear the CE marking indicating that they satisfy all the provisions of this Directive, including the conformity assessment procedures.”

    According to the same article the CE marking shall indicate that products comply with technical specifications as in the first sentence of Article 4(1), one category of which are the relevant national standards transposing the harmonized standards (hEN), references to which have been published in the Official Journal of the European Union.



  2. Moreover, according to Article 6 (1) of the CPD “Member States shall not impede the free movement, placing on the market or use in their territory of products which satisfy the provisions of the Directive”.

  3. Taking into account the strong regulatory consequences of harmonized standards (hEN) established under the CPD it is generally considered necessary that a coexistence period allows authorities and economic actors to prepare themselves for the change.

    The legal base for doing so can be Article 6 (2) of the CPD which provides that “Member States shall allow products not covered by Article 4 (2) [note: i.e. which do not bear the CE marking] to be placed on the market in their territory if they satisfy national provisions consistent with the Treaty until the European technical specifications referred to in Chapters II and III provide otherwise.”


    According to the second sentence of Article 6 (2) the Commission and the Standing Committee on Construction monitor and review the development of the European technical specifications on a regular basis.

  4. However, the European technical specifications referred to in Chapters II, i.e. harmonised standards, do not in practice themselves provide otherwise. This means that without a complementary provision on solid legal grounds, as soon as the Commission has published in the Official Journal of the European Union the reference of a standard established by a European standards organization or from the first day on which the harmonised standard is applicable, products falling under it but not bearing the CE marking would not be allowed to be placed on the market of any Member State territory, even if the product satisfies national provisions consistent with the Treaty.

  5. It is the Commission’s position that, in order to mitigate for harmonised standards not providing otherwise, the above-mentioned second sentence of Article 6 (2) entitles the Commission and the Standing Committee on Construction to establish a complementary provision in relation to a given harmonised standard that Member States shall during a co-existence period allow products which do not bear the CE marking to be placed on the market in their territory if they satisfy national provisions consistent with the Treaty.

  6. The practice jointly developed by the Commission and the Standing Committee on Construction is that this complementary provision is limited in time until the “Date of the end of the co-existence period” indicated together with the reference in the standard in the list published in the Official Journal of the European Union.

  7. In this respect the Commission would like to recall that the dates of the co-existence period for harmonised standards are agreed jointly by the Commission and the Standing Committee on Construction, in application of the second sentence of Article 6 (2). This means that each Member State has the opportunity to comment on the proposed periods at the Standing Committee on Construction.

  8. The references of harmonised standards under the CPD and the co-existence period applicable to them are published in the Official Journal as a formal Commission communication in the framework of the implementation of the CPD.

  9. From points 7. and 8. above the Commission concludes that the transition period published in the Official Journal is the same for all Member States.

  10. During the co-existence period, the manufacturer can choose to apply either existing national specifications or the harmonised European standard in question. After the end of the co-existence period, any manufacturer must apply only the harmonised European standard, and consequently must CE mark his product.
    Bearing this in mind, the Commission wants to emphasise therefore that any change to the dates published by the Commission foreseen by a Member State has a significant impact on manufacturers and the market.

  11. Firstly, in cases when a Member State shortens the co-existence period, CE marking would already be mandatory for the territory of this Member State before the end of the co-existence period indicated in the Official Journal of the European Union. According to the Commission this situation also infringes the CPD, since according to Article 6 (2) quoted above, during the co-existence period indicated in the Official Journal of the European Union, Member States must not prevent products not bearing the CE marking from being placed on the market in their territory if they satisfy national provisions consistent with the Treaty.
    In this case in particular the trade and use of a product not bearing the CE marking would experience barriers and restrictions on the territory of the Member State that shortened the co-existence period since, in application of Community legislation, the product must still be allowed to be placed on the market if satisfying national provisions consistent with the Treaty.

  12. Secondly, in cases when a Member State prolongs the co-existence period, manufacturers on the territory of this Member States are for a certain additional period not required to CE mark although CE marking has become mandatory in application of the CPD. According to the Commission this situation in principle infringes the CPD.3
    Furthermore, during this additional period, this case creates a situation of higher burden for products manufactured for several national markets compared to those manufactured for the territory of the Member State that prolongs the co-existence period.

  13. However, in the case of an amendment of a harmonised European standard but with the exception of cases for which the opinion of the Standing Committee on Construction would be explicitly contrary, Member States should allow the placing on the market on their territory for a well-defined limited time, of stock that has been manufactured and CE marked in application of the non-amended harmonised European standard before the end of the co-existence period regarding the amendment concerned.
    This practice must not be applied to any construction product which had been CE marked in application of a non-amended standard that has in the meanwhile been withdrawn from the list of harmonised standards published in the Official Journal of the European Union. In this specific case the Commission Decision concerning the withdrawal of the standard from the list of harmonised standards should include an appropriate provision regarding this issue.

3. co-existence period for European Technical Approval Guidelines


  1. As developed under 2 above, the legal base for introducing a co-existence period is Article 6 (2) of the CPD, which refers in this respect to “products not covered by Article 4 (2)”, i.e. to products which bear the CE marking, as well as to “European technical specifications referred to in Chapters II and III”, i.e. harmonised standards and European technical approval. This means that the provision of Article 6 (2) is in practical terms to be read as follows: Member States shall allow products which do not bear the CE marking to be placed on the market in their territory if they satisfy national provisions consistent with the Treaty until a harmonised standard or European technical approval provides otherwise.

  2. Consequently, only a harmonised standard or European technical approval can provide for a co-existence period or, in the absence of such a provision in a harmonised standard or European technical approval, a complementary provision can perform the same function, established by the Commission and the Standing Committee on Construction, in relation to a given harmonised standard or European technical approval, as explained in point 5. under 2 above.

  3. However, the first sentence of Article 4 (1) of the CPD does not count guidelines for European technical approvals established in application of Article 11 of the CPD among the ‘technical specifications’ to be referred to for the purposes of the Directive. Consequently, Article 4 (2) does not mention that CE marking could indicate that products comply with such a guideline without a European technical approval having been delivered.

  4. From this follows that there is no legal basis in the CPD that could be used for providing for a co-existence period in or in relation to guidelines for European technical approvals. As a consequence, the Commission will from now on disseminate information relating to these guidelines without any indication regarding a co-existence period.

  5. Furthermore, since guidelines for European technical approvals are not technical specifications in the sense of the first sentence of Article 4 (1) of the CPD, their existence or any provision in them cannot be taken as justification for not allowing non-CE marked products to be placed on the market if they satisfy national provisions consistent with the Treaty. As long as harmonised standards do not apply, only European technical approval can provide otherwise.

  6. However, while according to Article 9 (1) of the CPD Approval Bodies must ensure that the examinations, tests and assessment for granting a European technical approval are carried out on the basis of guidelines as soon as these exist, none of the provisions of the CPD permits the conclusion that the existence of such guidelines obliges a manufacturer to make a request for a European technical approval if he does not want to do so.

4. CUMULATIVE ATTESTATION OF CONFORMITY (AoC) SYSTEMS
1. According to Article 13 of the CPD the manufacturer (or his agent established in the Community) is responsible for the attestation that the construction products are in conformity with the requirements of a technical specification. Products that are the subject of an attestation of conformity benefit from the presumption of conformity with technical specification.

2. The choice of the applicable level of attestation of conformity for a given product or family of products is specified by the relevant Commission Decisions. Among other things this is done according to:

(a) the importance of the part played by the product with respect to the essential requirements, in particular those relating to health and safety;

(b) the nature of the product.

3. Specifically, but not exclusively, implied by the above-mentioned points (a) and (b), is that the envisaged intended use of a construction product may require the provision for different levels of attestation of conformity according to the performance characteristic concerned, and for combining them.

This level of AoC which is different from that specified for the generic use of the product is generally referred to as "cumulative" attestation of conformity.

4. When a construction product in addition to its generic intended use in a work can also be used in situations subjected to fire regulations (safety issue), the cumulative attestation of conformity requires that the attestation of conformity level established by Commission Decision for its generic intended use is "cumulated" with the level established for the specific characteristic (e.g. reaction to fire) relevant for respect of the Essential Requirement (usually system level 1 or 3 or 4).

It must be noted that the situation described above cannot be understood as a general upgrade of the level of attestation of conformity established for the generic intended use of the construction product.

While the established generic level will remain unchanged, the provisions deriving from the cumulated level of attestation of conformity applicable only to the performance characteristic(s) concerned are just added to those envisaged under the former.

5. Therefore, if the cumulative attestation of conformity is of level 1, the certification body issues a certificate of conformity only regarding the specific performance characteristic(s) concerned and not regarding the entire product, i.e. not the other performance characteristics.

If the cumulative attestation of conformity is of level 3, the notified laboratory will carry out only the relevant fire test for Initial Type Testing (ITT) and not the entire ITT set of test, which remain under the attestation of conformity level established for the generic intended use of the product.

This principle also applies when the cumulative attestation of conformity is of level 4.



5. manufacturers’ declaration of conformity,
and certificate of conformity

1. In combination with Article 13 (3), Article 14 and Annex III point 4 of the CPD constitute the legal basis for this issue.

2. According to Article 14 (1) the attestation of conformity “shall lead:

(a) …, to the production of a declaration of conformity for a product by the manufacturer, …; or

(b) …, to the issue by an approved certification body of a certificate of conformity for a system of production control or for the product itself.”

This distinction is rooted in Article 13 (3) which provides that “the attestation of conformity of a product is dependent on:

(a) the manufacturer having a factory production control system to ensure that production conforms to the relevant technical specifications; or

(b) for particular products indicated in the relevant technical specifications, in addition to a factory production control system, an approved certification body being involved in assessment and surveillance of the production control or of the product itself.”

The distinction is taken up again and confirmed in Article 14 (2) which provides that “the manufacturer’s declaration of conformity or the certificate of conformity shall entitle the manufacturer, …, to affix the corresponding CE marking …”.

A first conclusion to be drawn from this is that legally speaking under the CPD, for any given product, there can only be either a declaration of conformity or the certificate of conformity but not both together.

3. The issue is to determine in which cases it is a declaration of conformity and in which a certificate of conformity that entitles the manufacturer to affix the corresponding CE marking. This determination is made difficult by the fact that a declaration of conformity is only foreseen for a product while a certificate of conformity is possible for a system of production control or for the product itself.

4. It is the position of the Commission services that for the purpose of affixing CE marking to a construction product the determining factor is what has been produced or issued in relation to the product as a whole. While Factory Production Control (FPC) in itself is an element of equal importance for the conformity of the product as Initial Type Testing (ITT), it remains only one of the two principle elements required for attestation of conformity of the product.

5. Consequently, Annex III (2) of the CPD limits Certification of the conformity of the product to what has in the meanwhile been named systems 1+ and 1. To all other systems this Annex attributes a Declaration of the conformity of the product. However, a certain vagueness originates from the fact that in Annex III (2) the term “certification” is used, not “certificate” as in Article 14 and Annex III (4), dealing with CE marking among other things. Despite being aware that the former is an action and the latter the result of this action in the form of a document, it is nevertheless the position of the Commission services that “Certification of the conformity of the product” according to Annex III (2) (i) is to be understood as limitative and conditional to the “Certificate of conformity” referred to in Article 14 (2) and in Annex III (4), in particular with regard to CE marking.

6. In clear terms this means that by “(EC) certificate of conformity” referred to in Article 14 (2) and in Annex III paragraph 4.1 and 4.2 must be understood only the “certificate of conformity … for the product itself” as provided for as the second of the two types of certificate referred to in Article 14 (2) letter (a), this as the result of system 1+ or 1 of Attestation of Conformity (AoC) of the product as specified in Annex III (2) (i).

7. To determine in which cases a declaration of conformity and in which a certificate of conformity results from the Attestation of Conformity of the product and entitles the manufacturer to affix the corresponding CE marking it follows that the certificate of conformity is that issued by an approved certification body for the product itself. This is only the case for products entirely falling under AoC system 1+ or 1, i.e. the certificate covers all essential product characteristics foreseen in Annex ZA.



In all other cases the manufacturer must produce a declaration of conformity that entitles him to affix the corresponding CE marking.

8. The situation in practice is complicated by the fact that

a) AoC system 1+ or 1 might be required for only a part of the performance characteristics (e.g. fire behaviour) of the product, but not for the entire product (see above 4. Cumulative AoC), and

b) certification of FPC is part of AoC system 2+ and 2, resulting in a certificate of conformity for a system of FPC being issued.

However, as stated already under point 6 above as “(EC) certificate of conformity” referred to in Article 14 (2) and in Annex III paragraph 4.1 and 4.2 must be understood only the “certificate of conformity … for the product itself” as provided for as the second of the two types of certificate referred to in Article 14 (2) letter (a).

9. If the certificate in question does not relate to the entire product and all its performance characteristics but to a part of the performance characteristics of the product (e.g. see above 4. Cumulative AoC systems), the number of the certificate of conformity must not be presented as part of additional information accompanying the CE marking or it must be presented differently as if AoC system 1+ or 1 is generically required for the entire product and all its performance characteristics, so that any misleading impression or interpretation is prevented. However, to avoid losing useful information in this case of “partial” certificate of conformity for the product, the Commission services consider it an appropriate solution to mention the number of this certificate in brackets after the additional information on the performance characteristic(s) concerned.

But, if the certificate in question is limited to certifying the conformity for a system of FPC as provided for as the first of the two types of certificate referred to in Article 14 (2) letter (a), i.e. is issued in the framework of AoC system 2+ or 2, and therefore is (even partially) not an EC certificate of conformity of the product, its number must in no form be part of additional information accompanying the CE marking.

10. On the other hand, both in the case of any certificate that relates to a part of the performance characteristics (e.g. fire behaviour) of the product, but not to the entire product and all its performance characteristics, and that of a certificate of conformity for a system of FPC as provided for as the first of the two types of certificate referred to in Article 14 (2) letter (a) and issued in the framework of AoC system 2+ or 2, it is the position of the Commission services that the declaration of conformity according to Annex III paragraph 4.3 of the CPD needs to contain in an appropriate manner the number of such certificate(s) issued by an approved certification body, together with the name and address of this body / these bodies as explicitly provided for in that paragraph.



6. GUIDANCE PAPERs
1. Taking into account that the Guidance Papers with regard to certain issues introduce or trigger interpretation which is not provided for by the CPD, may not be covered by it or may or go beyond its provisions, or may be misused or misunderstood in this sense, the Commission services would like to recall that in each of the Guidance Papers it is stated that these papers are not legal interpretations of the CPD, are not judicially binding and do not modify or amend the CPD in any way.

2. When formulating its official legal position in specific cases or circumstances, the Commission does not consider Guidance Papers as establishing precedence or providing legally relevant reference. Likewise, the Commission does not accept such reference contrary to its officially formulated position.



3. The Commission is examining the possibility of adopting and issuing an official document which will contain necessary interpretations of the various provisions of the CPD.

1 Case 815/79; European Court report 1980, p. 03583.

2 OJ C 059, 09/03/1982 p. 0002-0008.

3In specific exceptional and well-reasoned cases of particularly unfavourable weather or general trade conditions, a Member States might consider it necessary to allow, on a product case-by-case basis, through non-regulatory administrative measures the placing on the market on its territory for a well-defined very limited time, of non-CE marked stock that has been manufactured before the end of the co-existence period but could not yet be placed on the market because of the above-mentioned exceptional reasons.



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