European regulations

2.1.1 EC Construction Products Directive (CPD)

Council Directive of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (EC Construction Products Directive – CPD – 89/106/EEC) [5] is aimed at removing trade barriers for construction products in the common market of the European Union and permitting the free movement of goods. This is to be achieved by harmonising the different technical regulations in the Member States. The Construction Products Directive is an instrument of the Treaty establishing the European Community (ECT), which is aimed at harmonising the single European market. In addition to the free movement of goods, the treaty also stipulates that the free trade must take into consideration health and environmental protection, and that a high level of protection is to be striven for based on the principles of precaution and prevention [6]

The Construction Products Directive is a "New Approach" directive [7], i.e. products concerned are only subject to a general objective and the essential requirements. The technical details are specified by CEN and EOTA ¹ in the harmonised standards and technical approvals.

The Directive regulates construction products and defines these as any products that are produced for incorporation in a permanent manner in construction works, including both buildings and civil engineering works. These products may be traded freely in the European Economic Area if they are fit for their intended use. A construction product is classified by the Directive as fit for its intended use if it fulfils the following essential requirements listed in Annex I of the Directive [5]:

1. Mechanical resistance and stability 2. Safety in case of fire

3. Hygiene, health and the environment

1 CEN: Comité Européen de Normalisation / European Committee for Standardisation EOTA: European Organisation for Technical Approvals

4. Safety in use

5. Protection against noise

6. Energy economy and heat retention

The Essential Requirement No. 3 "Hygiene, Health and the Environment" is intended to contribute to protecting the health of occupants and neighbours as well as the immediate environment. Thus the Directive states in Annex I that the construction works must be designed and built in such a way that it will not be a threat to the hygiene or health of the occupants or neighbours, in particular as a result of any of the following [5]:

• the giving-off of toxic gas

• the presence of dangerous particles or gases in the air

• the emission of dangerous radiation

• pollution or poisoning of water or soil

• faulty elimination of waste water, smoke and solid or liquid wastes

• the presence of damp in parts of the works or on surfaces within the works

Spatially, this takes into consideration the construction works and the work's immediate environment, which essentially comprises the indoor air, supply and disposal systems as well as the adjacent soil and groundwater. In terms of time, the requirements of the Directive are limited to the phase of use of the building.

The Construction Products Directive regulates the marketing and use of construction products. Because this is a directive, however, it must be transposed into national law. Due to existing legislative powers, in Germany this transposition falls under the Bauproduktengesetz ('Construction Product Act') for placing products on the market and the Landesbauordnungen ('Building Laws of the Laender') for the use of products.

In order to take account of the different levels of protection in the Member States, the Construction Products Directive allows the incorporation of levels and classes in technical specifications. The Directive defines the term "technical specification" as referring to both standards and technical approvals. In accordance with the Safeguard Clause (Art. 21 CPD), Member States can prohibit the marketing of products if they fail to comply with the harmonised standards or technical approvals, conflict with national laws or present a danger to health and the environment.

The Member States can represent their interests in the "Standing Committee on Construction", which was established on the basis of Art. 19 CPD. This acts in an advisory and regulatory capacity. Two representatives are appointed by each Member State. The voting on proposals presented by the European Commission is by qualified majority².

2.1.2 Interpretative Document No. 3 "Hygiene, Health and the Environment"

The Interpretative Document No. 3 "Hygiene, Health and the Environment" [8] gives concrete form to and interprets the essential requirement according to Art. 3 and 12 of the Construction Products Directive. It stipulates that the harmonised technical specifications for construction products must cover the following characteristics for the period of use of the construction works:

• Release of pollutants to indoor air (e.g. VOC, inorganic and organic particles and radioactive substances)

2 The votes of the Member States are weighted in accordance with the size of their respective population (c.f. Article 205, Paragraph 2, EC Treaty) [6].

• Release of pollutants to outdoor air, soil and water in the immediate environment of the works

The technical specifications must also include information that enables the manufacturer to complete the CE marking of the product in terms of the emission of dangerous substances. If possible, harmonised testing or calculation procedures should be specified that enable the manufacturer to state the emission as a numeric value.

The technical specifications are elaborated using a mandate procedure. The European Commission issues the mandate to CEN or EOTA to elaborate harmonised European standards or guidelines for technical approvals (ETAG³).

To verify the conformity of a product with the technical specifications, conformity attestation procedures are specified by the European Commission. In a series of levels, these allow for initial type testing, product testing and factory production control by means of a simple manufacturer declaration and/or by means of independent, notified testing, control or certification bodies.

If the construction product conforms with a harmonised standard or technical approval and is therefore fit for its intended use, and if the conformity procedure has been conducted, it can be labelled with the CE mark, placed on the EU internal market and traded freely.

2.1.3 Guidance Paper H

Since, in the mandates for producing harmonised technical specifications, there is only a relatively generalised addendum (Annex 4) concerning the release of dangerous substances, in practice it is difficult to transpose the Essential Requirement No. 3 into the technical specifications. Guidance Paper H, "A harmonised approach relating to dangerous substances under the Construction Products Directive", is therefore intended to provide writers of technical specifications with help in transposing the Essential Requirement No. 3 [9]. Although it is not legally binding, the Guidance Paper has a high status. The Commission services also instruct that the Guidance Paper must also be taken into consideration when its requirements go beyond those in the mandates.

Guidance Paper H provides various steps for transposing the Essential Requirement No. 3 into the technical specifications:

1. Identify dangerous substances that are regulated for the products concerned Writers of technical specifications should identify all legal requirements that concern the dangerous substances used in the construction product. A starting point here is the respective product mandate that lists dangerous substances that could be potentially contained in the product (e.g. asbestos, formaldehyde, cadmium) or the database set up by the European Commission for regulated substances (c.f. Section 3.1.1). Further, own expert knowledge is required.

2. Verify, whether the dangerous substance has to be addressed in the technical specification and in the CE marking

The dangerous substances are regulated in three different ways to ensure an adequate level of protection:

• Substances that are regulated at Community level no longer have to form part of the CE marking as the producer always has to satisfy these harmonised requirements.

3 ETAG: European Technical Approval Guideline

• For substances that are regulated at Community level but for which there are national derogations, corresponding information must be included in the CE marking, as there are different levels of requirements.

• For substances that are only regulated nationally, the different requirements must be taken into account in the CE marking. The different test methods must be harmonised.

Regulations that do not fall within the scope of the Construction Products Directive, such as work safety, should be taken into account appropriately as Guidance Paper H welcomes a common approach in this area. This could, for example, be included in the harmonised standard in an informative Annex ZA ⁴, but does not accompany the CE marking.

3. Determine the "state of the art"

Regarding test methods or other methods of determination, writers of technical specifications should determine the current "state of the art" for the dangerous substances concerned. This should also consider descriptive solutions. If there is a lack of suitable methods for determining the release, a pragmatic approach should be taken such as determining the content.

4. Select a harmonised method of determination for each dangerous substance The characteristics of the respective dangerous substance should preferably be expressed in terms of the release of the substance or in terms of radiation. The release of the substance should be treated in the technical specifications like every other performance characteristic of the product (e.g. bending strength, thermal conductivity). That is, it should be subject to a harmonised method of determination, have a prescribed form of declaration to accompany the CE marking and, if necessary, use the "no performance determined" option. If possible, horizontal test methods should be used.

Guidance Paper H refers to the possibility of using descriptive solutions, such as limits on the content of the dangerous substance, where a clear relationship between the content and release exists in end-use conditions and where, because of the lack of methods, it is not possible, or very expensive, to determine the rate of release or emission of the dangerous substance. However, even if no relationship can be established between the content and release, a declaration of the content can be acceptable to accompany the CE marking if it concerns substances that are regulated in Council Directive 76/769/EEC [10]. Another descriptive solution would be to check the constituents of the construction product since it can be assumed that a construction product does not release dangerous substances if all the constituents used have been controlled in this respect. When using descriptive solutions, it is pointed out that these should be used with construction products for which there is sufficient experience.

5. Define levels and classes

The technical specifications must take account of the different levels of protection provided by European and national legislation, e.g. in the form of levels or classes for different emission levels. If necessary, "zero content" or "substance banned" situations should be listed in the specifications.

4 Annex ZA of a harmonised standard identifies the sections of the standard that transpose the mandate of the European Commission. Only these sections form the basis of the CE marking. The other sections have a voluntary character.

6. Specify the information to accompany the CE marking

The technical specifications must specify a means of declaration to accompany the CE marking for identifying and presenting the release of dangerous substances, whereby the "no performance determined" option must also be possible.

2.2 National regulations