European Scrutiny Committee Contents

33 Marketing of construction products




COM(08) 311

+ ADDs 1-2




Draft Regulation laying down harmonised conditions for the marketing of construction products

Commission staff working documents: impact assessment and summary of assessment

Presidency's revised text of a Draft Regulation laying down harmonised conditions for the marketing of construction products

Legal base(b) Article 114 TFEU; co-decision; QMV
DepartmentCommunities and Local Government
Basis of consideration(a) Minister's letter of 29 April 2010

(b) Minister's letter of 3 June and EM of 23 June 2010

Previous Committee Report(a) HC 16-xxv (2007-08), chapter 3 (25 June 2008); HC 19-vii (2008-09), chapter 2 (11 February 2009); and HC 5-xv (2009-10), chapter 1 (24 March 2010)

(b) None

Discussed in Council(b) 25 May 2010
Committee's assessment(Both) Politically important
Committee's decision(Both) Cleared


33.1 In 1989, the Council adopted a Directive ("the Construction Products Directive") which specified conditions for the marketing of products used in the construction of buildings and civil engineering works.[137] The aim was to ensure that reliable information was presented about products and to help establish fair competition in the EU's single market.

33.2 If a product is marked with "CE" (conformité européene) consumers know that it has been assessed against a common European standard. CE marked products should be accepted onto the market anywhere in the European Economic Area. The CE mark indicates the characteristics of the product but does not guarantee that it is suitable for a particular purpose.

Document (a)

33.3 In May 2008, the Commission proposed the repeal of the Construction Products Directive and its replacement by document (a), a Regulation. The Commission considered this necessary for two main reasons. First, the 1989 Directive had not succeeded in creating a single market for construction products partly because of differences in the way in which Member States had transposed the Directive's provisions into national law. For example, some Member States (including the UK) have voluntary CE markings whereas, in others, CE marking is compulsory. Second, the Commission wished to make the requirements for the marketing of construction products easier to apply, more effective and less onerous for manufacturers and especially for small businesses.

33.4 The main differences between the Construction Products Directive and document (a) are as follows:

  • Document (a) is a draft Regulation. It would, therefore, have direct effect. Member States would not need to transpose it. So there would be no room for Member States to apply the requirements differently in their national legislation, creating obstacles to fair competition in a single market for construction products;
  • CE marking would be mandatory;
  • The arrangements for assessing new and innovative products would be simplified and standardised; and
  • For unique products and products produced by "micro-enterprises" (that is, enterprises with fewer than 10 employees and an annual turnover of not more than €2 million) there would a simplified process for the assessment and verification of the products' performance using Standard Technical Documentation.

Previous scrutiny of document (a)

33.5 In June 2008, the previous Committee concluded that the aims of the proposal — simplification and clarification of the requirements for the marketing of construction products and the removal of barriers to the single market — seemed admirable. Our predecessors asked the Government to provide a report on its consultations about the proposal, a copy of the Government's Impact Assessment and progress reports on the negotiations. Meanwhile, document (a) was retained under scrutiny

33.6 In February 2009, the Government provided the information for which the previous Committee had asked and said that, during the negotiations in the Council Working Group, the Government had given broad support to the Commission's draft Regulation subject to some amendments.

33.7 The Impact Assessment took account of the comments the Government had received from the industry and others when it consulted them about a draft. The main findings of the Impact Assessment were as follows:

  • the voluntary take-up of CE marking in the UK was likely to be about 60%;
  • a move to mandatory CE marking would probably impose on UK manufacturers a one-off cost of £40 million and subsequent annual costs of £7 million;
  • it had not been possible to quantify the potential benefits of the draft Regulation; and
  • mandatory CE marking would have a disproportionately adverse effect on the manufacturers (mostly small businesses) of individual products made for a particular project.

33.8 The Government's consultations on the draft Regulation lasted from July 2008 to January 2009. Key points from the responses were:

  • manufacturers who already used CE marking were in favour of or neutral about the proposed move to mandatory marking, whereas those who did not were opposed to the move; and
  • there was strong and widespread opposition to the proposal for a simplified process for the assessment and verification of products made by micro-enterprises on the grounds that the proposals were unclear, could cause confusion and might provide insufficient checks on products which are safety-critical.

33.9 In March 2010, the then Parliamentary Under-Secretary of State at the Department of Communities and Local Government (Lord McKenzie of Luton) told the previous Committee that the main difference of opinion between Member States was about whether the CE marking should be compulsory for all products. The Government's position during the negotiations in the Council working group had been that, if CE marking were to become mandatory, the requirement should be linked to national or local building/works regulations, which set out the characteristics that are required for the product to be used in a particular area.

33.10 The Minister also said that many of the European Parliament's first reading amendments were minor and acceptable. But some were not, such as the proposal to require manufacturers to declare whether their product contains a dangerous substance. The Commission and a majority of Member States, including the UK, believe that this would create an undesirable overlap with the REACH Regulation.[138]

33.11 The previous Committee noted that there remained disagreements between Member States on some key points and, most importantly, about whether the CE marking should be compulsory and what special provision should be made for small businesses. Our predecessors decided, therefore, to keep document (a) under scrutiny and welcomed the Minister's intention to write again when the position was clearer.

The Minister's letter of 29 April 2010

33.12 In her letter of 29 April, the then Parliamentary Under-Secretary of State at the Department of Communities and Local Government (Barbara Follett) told us that the Presidency was aiming to take a revised text of the draft Regulation to the meeting of the Competitiveness Council for political agreement towards the end of May. The Committee of Permanent Representatives of the Member States (Coreper) had already considered the revised text of the key Articles. A qualified majority of Member States had indicated support for the Presidency's draft.

33.13 The Minister enclosed with her letter a confidential copy of the Presidency's compromise text. She said that the text was clear and relatively straightforward. Moreover, it established the link between the CE mark and national building regulations and it incorporated a number of other amendments requested by the UK.

Document (b)

33.14 Document (b) is a revised text of the draft Regulation. It was prepared by the Presidency. It does not differ significantly from the compromise text the former Minister sent us on 29 April.

The Government's view on document (b)

33.15 In his letter of 3 June, the Parliamentary Under-Secretary of State at the Department for Communities and Local Government (Andrew Stunell) tells us that on 25 May the Competitiveness Council reached a political agreement on the Presidency's compromise text. The Government voted in favour of the proposal. The Minister says that, in the Government's view:

"it was important to take this opportunity to agree the new Regulation. Council working party negotiations have now been in progress for two years, during which time the UK has secured a number of significant improvements to the text, and successfully argued for deletion of a number of proposals that were viewed unfavourably by either UK industry or regulators. The Presidency also agreed to a number of UK drafting suggestions on the text in the final weeks of negotiations. The political agreement has cemented these changes into the Council text, and while further changes may result from Second Reading negotiations with the European Parliament, there is now a firm Council basis for those discussions.

"The alternative would have been to abstain and maintain our scrutiny reserve. While there is a chance that the Regulation would have achieved a qualified majority regardless, the final weeks of negotiation indicated that the UK held a pivotal position in securing an agreement. If our abstention had broken the qualified majority, then the Regulation could have been abandoned and the potential benefit of replacing the current Directive lost. Longer term, the failure of the Regulation would have raised the risk that infraction proceedings might have been pursued against the UK under the current Construction Products Directive."

The Minister hopes that the Committee will understand why, in these circumstances, he decided to take part in the vote for the Regulation.

33.16 His Explanatory Memorandum of 23 June provides a very detailed comparison of the similarities and differences between documents (a) and (b). It also tells us that the Council is expected to begin negotiation with the European Parliament in the autumn with a view to reaching a Second Reading deal.


33.17 It appears that the Government has been successful in achieving most of its negotiating objectives. In particular, it has succeeded in establishing a firm link between the CE marking and the national regulations of the place where the product is to be used. We are grateful for the Minister's explanation of his reasons for taking part in the Council's agreement of the draft Regulation while it was still under scrutiny. Had we been able to consider document (b) before the Council meeting on 25 May, we would have cleared it. Accordingly, we now clear document (b). We also clear document (a), which has been superseded by document (b).

137   Council Directive 89/106/EEC: OJ No. L 40, 11.2.89, p.12. Back

138   REACH: the Registration, Evaluation, Authorisation and Registration of Chemicals Regulation. Back

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