33 Marketing of construction products |
+ 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
|Department||Communities 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)
|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. 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.
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
- 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
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.
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
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,
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