Market access for and use of construction products, application of construction techniques
Market access for harmonised construction products under the Construction Products Regulation
The Construction Products Regulation (Regulation (EU) No 305/2011) sets out the conditions for placing construction products on the market or making them available on the European internal market. Construction products covered by a harmonised standard under the Construction Products Regulation need to come with a declaration of performance and bear the CE marking when they are placed on the market. The obligation to affix the CE marking and draw up a declaration of performance also extends to construction products for which the manufacturer has voluntarily applied for and obtained a European Technical Assessment (ETA).
Information regarding CE marking
What are my obligations as a manufacturer, distributor or importer of a harmonised construction product with regard to CE marking and drawing up a declaration of performance?
- FAQs on the Construction Products Regulation and Market Surveillance developed by the German market surveillance authorities
- The brochure CE Marking of Construction Products Step by Step (PDF) issued by the European Commission also gives useful advice concerning the affixing of the CE marking..
Harmonised standards for construction products
Harmonised standards (hEN) are developed on the basis of standardisation requests issued by the European Commission to the European Committee for Standardization CEN. The aim is to promote and strengthen the free movement of construction products in the EU internal market by means of a common technical language which is defined in the harmonised standards.
There is one thing to note with harmonised standards under the Construction Products Regulation (CPR): if a construction product is covered by an hEN developed under the CPR, the manufacturer must apply this standard.
Once the reference of the hEN is published in the Official Journal of the European Union, the manufacturer is obliged to (or entitled to, depending on the perspective) draw up a declaration of performance for the product and affix the CE marking when it is placed on the market.
Usually the European Commission also publishes a transitional period called 'coexistence period'. This allows manufacturers to continue to apply the previous standard until this period has expired.
European Assessment Documents (EADs) and European Technical Assessments (ETAs)
European Assessment Documents (EADs) are harmonised technical specifications on the basis of which a European Technical Assessment (ETA) can be issued. This path towards CE marking is open to construction products which are not or not fully covered by a harmonised standard and for which the performance in relation to their essential characteristics cannot be entirely assessed according to an existing harmonised standard. The application of the EAD is voluntary, i.e. an ETA is only issued at the request of the manufacturer.
You will receive an ETA from a Technical Assessment Body (TAB) of your choice. TABs exist in almost all EU Member States and some partner countries. The TABs, such as DIBt in Germany, will provide you with comprehensive information on this topic.
- On the NANDO information page of the European Commission you will find the contact details of all European TABs as well as the product areas for which they are designated.
- Further information on the ETA procedure and contact details of all TABs can be found on the website of the European Organisation for Technical Assessment (EOTA).
An assessment and verification of constancy of performance (AVCP) of construction products needs to be carried out in the context of the CE marking of construction products under the Construction Products Regulation. The use of independent testing laboratories and certification bodies, called notified bodies, is required for certain AVCP systems.
You can find a list of notified bodies that can assist you in the assessment and verification of constancy of performance of your product on the NANDO information page of the European Commission. The notifying authority for testing laboratories and certification bodies based in Germany is DIBt.
Construction products without CE marking under the Construction Products Regulation
For construction products which are not covered by an hEN under the Construction Products Regulation or for which the manufacturer has not requested and obtained an ETA, the national use provisions, incl. verification of fitness for use and conformity procedures, apply. The relevant technical provisions, in particular the Technical Building Rules (see below) for the construction product, must be observed. For construction products which deviate substantially from the Technical Building Rules or for which there are neither Technical Building Rules nor generally recognised technical rules, regulatory verification of fitness for use (e.g. an approval) is required.
The principle of free movement of goods set out in Article 34 of the Treaty on the functioning of the European Union (TFEU) and the principle of mutual recognition apply to products which are not covered by the harmonisation acts of the Union. This also includes construction products which are not covered by Regulation (EU) No 305/2011 (i.e. the Construction Products Regulation).
The principle of mutual recognition applies to construction products which
- are not covered by Union harmonisation (and therefore do not bear the CE marking) and
- have been placed on the market in a Member State of the European Union or the European Economic Area, in Turkey or Switzerland
- in accordance with the applicable national technical provisions.
Such a construction product fulfils the requirements set out in or under the Building Codes of the federal states and may be used if
- the requirements set out in the foreign national technical provisions are met and
- correspond to, i.e. are equivalent to, the requirements set out under the Building Codes of the federal states.
This equivalence extends to the procedural requirements and the conformity assessment bodies.
Planning, design and execution of construction works
The planning, design and execution of construction works, that is the assembly of construction products to form construction works, is regulated by the Member States.
In accordance with the Construction Products Regulation, Member States may neither prohibit nor impede the making available on the market or use of construction products bearing the CE marking when the declared performances correspond to the requirements for such use in that Member State.
In other words, the requirements for the use of construction products in construction works are laid down by the Member States as they are responsible for the safety of construction works.
If there are no conclusive technical rules for the planning, design and execution of construction works, it may be necessary under the Building Codes of the federal states (see below) to regulate aspects of the assembly of construction products to form construction works (construction technique) in addition to the product characteristics. This is the case, for example, when important functions of the construction works result from the interplay between different construction products.
Provisions for the construction of roads and other transport infrastructure
The planning, design and execution of transport infrastructure, such as roads, tunnels, bridges, waterways and railway infrastructure, is subject to specific Technical Building Rules, Technical Terms of Delivery and additional contractual terms.
The German Federal Ministry of Transport and Digital Infrastructure (BMVI) is responsible for the construction of transport infrastructure.
Information about these provisions can be obtained from the competent federal authorities, in particular the Federal Highway Research Institute (Bundesanstalt für Straßenwesen) and the Federal Railway Authority (Eisenbahn-Bundesamt).
Building Codes and Technical Building Rules
For construction products and construction techniques for buildings, the relevant provisions are laid down in the Building Codes of the federal states. These are further specified by the technical rules laid down in the State Administrative Provisions – Technical Building Rules. The 16 German federal states are responsible for the State Building Codes and the downstream administrative provisions.
The Building Codes and the Technical Building Rules are based on a common model.
Which state law applies?
The provisions of the federal state in which the construction project is carried out apply to its planning, design and execution.
For construction products, the applicable provisions are also generally those of the federal state in which the construction product is used, i.e. installed. This includes provisions relating to the production process (e.g. Section 25 Model Building Code) or the manufacturer (e.g. Section 22 Model Building Code).