Work on legislation to achieve the objectives of the Green Deal and the EU Circular Economy Action Plan continues to accelerate in the EU, particularly in the area of construction products. In 2022, the Commission put forward a proposal for a new Construction Products Regulation and the Council of Ministers recently adopted its negotiating mandate on the proposal. The Regulation establishes new harmonised rules for construction products placed on the market and is expected to have a major impact on operators active in the construction industry. In this article, Advokatfirman Lindahl reports on the major changes compared to the current regulation and describes how operators can best prepare for the upcoming legislation.
INTRODUCTION
At present, harmonised standards for construction products are regulated in the Construction Products Regulation (EU 305/011) established by the EU. The Regulation applies to manufacturers, importers and distributors and establishes requirements on these operators to ensure that products placed on the market meet the requirements of the Regulation in terms of, for example, bearing the CE mark and including declarations of performance. Requirements are also imposed for particular documentation in the form of instructions for use and safety information. However, some shortcomings in the Regulation have been identified and there is therefore a need for it to be revised. In view of this, and as part of the EU’s Circular Economy and Green Deal package, on 31 March 2022, the European Commission put forward a proposal for a new Construction Products Regulation (COM/2022/144).
The proposed Regulation aims to facilitate the free movement of construction products and achieve the Union’s climate objectives. In order to achieve the climate objectives, operators will have greater responsibility for providing information on the construction products’ impact on the environment and the environmental risks associated with their use. Furthermore, the Regulation has been adapted to the principles of a circular economy by extending the sustainability of the products, making them easier to repair and enabling them to be recycled. The scope of applicability has also been widened by changing the definition of “construction product” to mean construction products incorporated in a construction work for two years, as opposed to the previous definition, which required products to be permanently incorporated into a construction work. Measures have also been adopted to enable more extensive reuse of construction products. The Commission has also been given greater powers to adopt delegated acts relating to additional standards and material requirements for construction products. The proposed Regulation will replace the current Regulation. It is proposed that the Regulation apply one month from its entry into force. However, it contains some transitional provisions and the current Construction Products Regulation is not scheduled to expire until 1 January 2045. The fact that the transition period extends up to 2045 has been criticised in the subsequent legislative work.
COMMENTS ON THE COMMISSION’S PROPOSAL
The European Economic and Social Committee (“EESC”) takes a favourable view of the work on European regulations on construction products that are integrated into the standardisation system. The Committee considers that the regulations can meet the needs of the industry, benefit society as a whole and help bring about the Green Deal and a circular economy. However, some criticism is aimed at the proposal put forward by the Commission.
The criticism is aimed, among other things, at the fact that provisions on evaluation methods, classification and criteria will be applied to all operators. The Committee is of the opinion that the Commission has underestimated the assessment of whether it is justified and proportionate considering the burden it places on enterprises. The EESC also considers that environmental, health and safety aspects for workers have not been sufficiently taken into consideration. This is because, among other things, the Commission has failed to take on board the recommendations, primarily regarding health and safety aspects, put forward by the European Agency for Safety and Health at Work in its evaluation of the proposal. Furthermore, the Committee considers that the provisions on reuse and remanufacturing of construction products should be clarified in order not to delay, impede or stop companies’ work to achieve circularity. Finally, the EESC considers that the Commission has failed to present any short-term solutions and also expresses concern at the fact that the proposed transitional period of twenty years is excessively long.
THE COUNCIL’S NEGOTIATING MANDATE
The Council presented its negotiating mandate on 30 June 2023. The Council broadly supports the general objectives of the proposed Regulation, but has made some changes. The changes mainly relate to the introduction of harmonisation of construction products that are already established on the market on the basis of a “case-by-case assessment” and extension of the scope of applicability of the Regulation to include used and remanufactured products. The Council also clarifies the harmonisation procedure and proposes that, as a starting point, the procedure should be managed by the European Committee for Standardisation (“CEN”), which will receives a request from the Commission and then organise the Member States’ national standardisation organisations. In cases where CEN issues no standardisation, the Commission has been authorised to adopt implementing acts.
In addition, the Commission is authorised to establish mandatory environmental requirements for public procurement or incentives for acquisition of construction products. In the negotiating mandate, the Council has also specified the design and functions of the European database for construction products in some detail in order to facilitate use of it by relevant operators for reporting and updating contents and documentation. With regard to the proposed transitional period, it is proposed that only a few articles should be included in the 20-year period and that the moment of application be postponed to 24 months after the entry into force of the Regulation.
PARLIAMENT’S NEGOTIATING MANDATE
The European Parliament initially appointed a committee to be responsible for the work on the proposed Regulation. In June 2023, the Committee put forward a draft negotiating mandate for Parliament containing some changes and additions. The changes proposed by the Committee include clarification of the contents of the Regulation and the removal of provisions that risk overlapping with legislation aimed at facilitating the applicability of the Regulation. Furthermore, it is proposed that the current Construction Products Regulation be replaced when the new Regulation enters into force, with the exception of certain parts that are only replaced ten years after the entry into force.
On 11 July 2023, Parliament voted in favour of the proposal put forward by the committee and referred the matter back to the interinstitutional negotiating committee. Interinstitutional negotiations take place through so-called tripartite negotiations involving Parliament, the Council and the Commission. The procedure is informal and aims to reach a provisional agreement among the parties. The fact that the procedure is informal means that a provisional agreement is not binding and each institution must vote to pass the proposed Regulation before it can be formally adopted.
HOW WILL OPERATORS BE AFFECTED BY THE PROPOSAL?
Work on the new Construction Products Regulation is in progress and a new Regulation is expected to be in place in the near future. The proposed Construction Products Regulation affects multiple operators in the construction industry by establishing an increasing number of requirements on construction products consisting of both material product requirements and more extensive requirements on the production and supply of information. Manufacturers need to ensure that the construction products meet the requirements of the Regulation and building contractors also need to be aware of the contents of the Regulation to enable them to determine the suitability of construction products in a construction work. The operators need to adapt to the new requirements and the transition could be costly purely in administrative and economic terms as well as in terms of time. However, those who take action to adapt to the new requirements in good time can enjoy tremendous advantages over those who wait until an adopted Regulation is in place.
Taking into consideration the legislative work and the current status of the proposal for a Construction Products Regulation, it can be stated that the new Regulation establishes more extensive requirements for information on the environmental impact of construction products and the environmental risks associated with the use of those products. It is therefore important to start producing more information about the products now so that the work of compiling, documenting and distributing relevant information will have been adapted at an early stage before the Regulation enters into force. The substantive requirements imposed by the Regulation should also be taken into consideration so that operators have the opportunity to adapt their work processes in good time in the event that certain construction products fail to meet the requirements. The Regulation also makes reuse and remanufacturing of construction products possible, which may be a business opportunity worth considering. We therefore recommend that relevant operators begin the transition now in order to be ready when the new Construction Products Regulation enters into force.
WHAT HAPPENS NEXT?
Negotiations between the Council and Parliament are expected to take place before a decision on adopting the Regulation is made. Both the Council and Parliament have presented their position in advance of the forthcoming negotiations through the Council’s negotiating mandate and Parliament’s adoption of the Committee’s proposals. Time will tell how the negotiations between the institutions turn out, but we are likely to have an adopted Construction Products Regulation by early 2024. The transitional arrangements will determine when the new Regulation is fully implemented. In view of Parliament’s position, it is proposed that much of the Regulation should apply from its entry into force and that a transitional period of ten years should only apply to certain parts. It remains to be seen whether Parliament’s changes will be adopted. However, it is likely that the new Construction Products Regulation will begin to apply within at least two years of its entry into force.
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