Amendment of the model building code

National requirements for construction productsin building regulations

Incompleteness of harmonized standards

Many of the harmonized product standards do not contain the complete range of methods and the degree of detail necessary to draw conclusions in respect of all essential characteristics required to prove compliance with basic requirements for construction works in all EU member states.

This means that even a CE mark combined with the related declaration of performance will not cover the full range of information necessary to verify that basic requirements for construction works are met because many statements regarding structural integrity, fire safety etc. can only be made when considering certain characteristics of construction products.

For instance, any building or structure must by its very nature be structurally stable. The required stability verification essentially involves a calculation method that should ultimately be based on parameters (such as compressive and tensile strength values) of construction products (including components and assemblies). If the harmonized standard specifies no method to determine compressive strength, it is impossible to analyze and verify structural integrity merely on the basis of the harmonized standard and the CE mark and declaration of performance.

Previous national supplement

Previously, Germany had adopted the solution of considering any harmonization that was “incomplete” with respect to national requirements to be a “partial harmonization” of the product. This approach enabled national supplements to be added to the standard, particularly by granting national technical approvals or issuing general test certificates pertaining to the “unregulated” area, which, in turn, was primarily determined by the List of Building Regulations (Bauregelliste) B, Part 1.

ECJ judgment

In its judgment of 16 October 2014 (Case 100/13), the European Court of Justice held that such supplementary national requirements were not permissible. Member states may no longer impose direct requirements on (harmonized) construction products. Any harmonized standard is basically assumed to be “complete” by its very nature. At any rate, deficiencies identified in such standards may not be compensated by national regulations. Rather, the EU Construction Products Regulation (CPR) constitutes a “closed system”, which means that standards can be complemented only by the European Commission issuing a mandate and CEN agreeing on the required supplementary specifications.

However, any such endeavor is a very time-consuming process, and thus not practicable. The same applies to any application for a European Technical Assessment (ETA) pursuant to the EU CPR submitted by the manufacturer.

Consequently, the national safety concept, which also pertains to requirements for construction products, must be modified.

The Conference of Building Ministers has thus proposed an amendment to the model building code that waives national requirements and verifications, particularly in the form of national technical approvals granted to harmonized construction products by the DIBt. However, it remains unclear how transitional regulations should be worded.

Ensuring compliance with regulatory requirements

Yet this situation does not at all change the fact that member states may still propose requirements for construction works, monitor compliance with such requirements, and have such compliance verified. Corresponding provisions may be incorporated in national legislation.

For this reason, it is in the interest not only of regulatory authorities but also of all other parties involved to be able to verify regulatory compliance.

If the client/principal is then under the obligation to verify the structural integrity of the building, they must be able to draw reliable conclusions regarding the characteristics of construction products. In turn, the designer and (construction) contractor commissioned with erecting the building or structure must provide this information to the client/principal as part of their contractually agreed duties. This is why they will usually request this information from the individual manufacturers.

Market participants are thus interested in obtaining this information outside the regulatory environment.

Previously, market participants were also able to revert to national technical approvals and related Ü marks for this purpose. If such a mark was affixed, all parties involved knew that construction products were suitable to construct a building or structure in compliance with regulatory requirements. It will no longer be possible to rely on this “service” previously provided by the national regulatory institution (i.e. the DIBt).

This is why alternative solutions must be identified from the point of view of market participants, but it will be virtually impossible to apply for an ETA (Art. 26 CPR) because this approach would be excessively time-consuming and thus impracticable.

Solution

Any solution must start from the following requirements:

The system must be in conformity with the EU CPR, which means it must not be based on government regulations.

The system must not prevent market entry; no monopolies may be created.

The system must be open and transparent for all competitors.

Requirements must be non-discriminatory.

The system must provide the parties involved with the opportunity to reliably prepare the required verifications.

In the related discussion, a system of “quality labels” is currently being proposed that relies on the following cornerstones:

Independent (accredited according to the EU accreditation regulation if required) (private-sector) professional bodies

involve market participants (manufacturers, construction industry, designers, clients)

in accordance with market requirements (which by their very nature include verification of compliance with regulatory requirements for buildings determined by some or all of the member states)

to conceive technical specifications for relevant construction products

whose compliance must be proven according to uniformly defined, transparent (measurement) methods as part of pre-agreed procedures to verify conformity.

Construction products that comply with these requirements will be marked accordingly (“quality label”).

Such a “quality label” enables clients/principals to provide the necessary information to regulatory authorities in the relevant member state and, even more importantly, to prove that regulatory requirements for the building are met in each specific case.

Legal assessment of the solution

The above approach is not a government-driven solution. Although it indirectly refers to regulatory requirements, these requirements exclusively pertain to safety regulations for buildings and structures that member states may adopt on the grounds of risk mitigation.

Clients are free to choose how they ensure compliance with these requirements, particularly with regard to the specific construction products selected. However, they are not released from their duty to prove that the building or structure complies with the requirements. The way in which such verification is performed is also left to the client. Since these are “technical parameters”, however, corresponding technical verifications will ultimately be required for the selected construction products and the structural design.

The purchasing party requests required verifications as part of its “purchase”, literally using an “order form”, from the manufacturer whose product is to be chosen because the purchaser is free to determine the characteristics the product has to meet with respect to the building.

Thus, these are “representations under a purchase contract” that the manufacturer makes if so requested by market participants with specific regard to its product. The manufacturer is also free to issue a related declaration on its own initiative. If “standard requirements” are used, cost effectiveness would dictate that the related information also be standardized.

Furthermore, the market will consider information provided by an independent third party to be more reliable than a mere declaration issued by the manufacturer. It is thus in the best interest of market participants to request or provide such a quality label that serves as independent proof of compliance with certain product characteristics.

Example

The purchaser/client is under the obligation to construct a structurally stable building. It is free to determine the type of structural design and the construction products to be used for this purpose. Once related decisions were made, the purchaser must commission a verification of structural stability specifically for the building. The purchaser will request any information required for this purpose from the manufacturers of the selected products. At the same time, the purchaser will demand proof of compliance with these parameters. This proof can be provided specifically by issuing quality labels (alternatively, by a case-by-case verification) if it is not already covered by a declaration of performance pursuant to the EU CPR. If the manufacturer fails to provide a related declaration, it will run the risk that its product is not considered for purchase. In this regard, its product will compete with other products.

Thus, the outcome of this process is a solution under a purchase contract in line with the principles of free and equitable competition.

Furthermore, options for such systems are already incorporated in European law (contract award legislation, services directive) and supported by ECJ case law pertaining to contract awards.

Nor does the EU CPR (obviously) introduce a prohibition for market participants to specify requirements for construction products and/or to agree on related provisions in purchase contracts.

It would merely be impermissible to provide (technical) information on the basis of measurement methods other than those prescribed by a harmonized standard, which would not be in the interest of purchasers either who rightfully expect a reliable comparison method based on this assumption (i.e. uniform assessment methods).

Since quality labels would be issued by independent (certification) bodies that provide their services to all manufacturers across Europe, and because requirements are elaborated in a transparent process whilst involving all market participants, there is no prevention of market entry either, even more so because certification bodies compete with each other as well.

Moreover, quality labels could/should also meet the requirements of various member states, thus going beyond the scope of application within a single member state. Manufacturers would certainly welcome this approach for reasons of cost effectiveness.

It remains to be seen how this will be implemented in the amendment to the model building code.

However, precast producers are beginning to ask themselves if building with precast elements will continue to be covered by the regulations pertaining to concrete, reinforced concrete and prestressed concrete construction, or if precast elements governed by harmonized European standards will exclusively constitute construction products in accordance with the EU CPR. Precast businesses fear market distortion at the expense of the precast industry, particularly in comparison to substitute products (such as cast-in-place concrete or plastics), because the legal situation is much more complex specifically with respect to precast elements, which is why designers and construction contractors might shy away from using such elements due to fear of liability risks. At any rate, manufacturers are not yet fully satisfied with the way in which the draft model building code takes their concerns into account.

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