Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing of construction products (EU CPR)

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1 November 2013 Last updated: June 2015 Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing of construction products (EU CPR) Frequently Asked Questions Part IV Preliminary remarks The market surveillance authorities of the Länder ('federal states') and DIBt have established a common FAQ catalogue with regard to individual provisions of the EU CPR. This catalogue contains interpretations and primarily expresses the view of the German market surveillance authorities for the construction sector. Other interpretation aids, such as those of the European Commission, have been taken into account. In accordance with the provisions of the EU Construction Products Regulation (EU CPR) it is, however, up to the manufacturers and the economic operators of equivalent status such as the importers or distributors who are considered to be manufacturers, to determine under their own responsibility whether their product falls within the scope of the EU CPR and whether the requirements for the marketing of harmonised construction products are met. Therefore, the FAQ catalogue does neither absolve the economic operators from their responsibility within the framework of the marketing of construction products nor does it exonerate them from seeking individual legal advice in keeping with their personal responsibility in specific cases. The market surveillance authorities and DIBt point out the fact that none of the questions contained in the catalogue has yet been decided by case law. In fact, the catalogue expresses, in particular with regard to interpretations, the view of the market surveillance authorities. Comments by the users of the FAQ catalogue referring to the questions and answers are welcome. Please send them to baupvo@dibt.de. These comments will be taken into account when the FAQ catalogue is updated. In order to submit your comments, please use exclusively the blank form provided. IV CE MARKING IV/1 (June 2014) Who affixes the CE marking? Affixing the CE marking is one of the obligations of the manufacturer. The CE marking may only be affixed to the construction product by the manufacturer or his authorised representative (see also FAQ IV/5 "May a distributor or importer affix the CE marking?"). (cf. Art. 11(1) and Art. 8(1) EU CPR in conjunction with Art. 30(1) Regulation (EC) No 765/2008) IV/2 (March 2015) Where should the CE marking be affixed? The CE marking needs to be affixed to the construction product or to a label attached to it. Only if this is not possible or not warranted on account of the nature of the construction product, it may be affixed to the packaging or to the accompanying documents. (cf. Art. 9(1) EU CPR) In the opinion of the German market surveillance authorities, the idea of the EU Construction Products Regulation is to ensure the closest proximity possible between the CE marking and the construction product. EU CPR FAQ catalogue, Part IV 1

2 Following this logic, an order of priority is assumed between the two options listed in Art. 9(1) sentence 2 EU CPR, "affixing to the packaging" and "affixing to the accompanying documents", giving preference to affixing the CE marking to the packaging. This also applies to construction products consisting of very small parts marketed loose. If it is not possible to affix the CE marking to such a construction product directly or to a label attached to it, it needs to be affixed to the packaging or to the accompanying documents. If an economic operator removes or changes the packaging when he makes the product available on the market, he needs to ensure that the CE marking is nevertheless passed on to the recipient. IV/3 Does the CE marking need to be followed by the registered address of the manufacturer even if he has appointed an authorised representative? Yes. The CE marking is always followed by the name and the registered address of the manufacturer or the identifying mark allowing identification of the name and address of the manufacturer easily and without any ambiguity. IV/4 Is it relevant for the affixing of the CE marking by the manufacturer where he is established? No. With regard to product responsibility, it does not matter where the construction product has been manufactured. The decisive factor is who has assumed responsibility for the product as its manufacturer by affixing the CE marking and his name to it. (see also FAQ II/4 "Is it relevant, with regard to the classification as a manufacturer under the EU CPR, whether a construction product has been manufactured in a third country?") (cf. third subparagraph of Art. 8(2) EU CPR) IV/5 May a distributor or importer affix the CE marking? Yes. The distributor or importer may or rather has to affix the CE marking if he is considered to be the manufacturer (see also FAQ II/7 "When is a distributor or importer considered to be a manufacturer for the purposes of the EU CPR?"). An importer or distributor is considered to be a manufacturer for the purposes of the EU CPR and is subject to the obligations of a manufacturer where he places a construction product on the market under his name or trademark or modifies a construction product already placed on the market in such a way that conformity with the declaration of performance may be affected. (cf. Art. 15 EU CPR) Affixing the CE marking is one of the obligations of the manufacturer. (cf. first subparagraph of Art. 11(1) EU CPR) EU CPR FAQ catalogue, Part IV 2

3 IV/6 Who needs to be indicated as the manufacturer in the CE marking if it is affixed by the distributor or importer? The CE marking may only be affixed by the distributor or importer if the distributor or importer is considered to be the manufacturer (see also FAQ IV/5 "May a distributor or importer affix the CE marking?"). In this case, the CE marking needs to be followed by the name and the address or the identifying mark of the distributor or importer who is considered to be the manufacturer. IV/7 May an importer affix the CE marking if he places the product on the market under the name of the manufacturer? No, in that case the importer is not allowed to affix the CE marking. IV/8 Does the name of the importer need to be indicated following the CE marking if the manufacturer is established outside the EEA? No. The name following the CE marking is always the name of the manufacturer. However, the importer is required to indicate his name, registered trade name or registered trademark and his contact address on the construction product or, where this is not possible, on the packaging or in the accompanying documents. (cf. Art. 13(3) EU CPR) IV/9 Does the information which follows the CE marking as set out in Art. 9(2) EU CPR need to be indicated in German? No. The EU CPR does not specify which language is to be used for the information following the CE marking in accordance with Art. 9(2) EU CPR. This said, manufacturers may with a view to informing the users opt to provide the information following the CE marking of construction products made available on the German market in German. This said, the Bauproduktengesetz BauPG ('Construction Products Act') stipulates that the declaration of performance is supplied in German. (cf. Art. 7(4) EU CPR in conjunction with Art. 6 BauPG) Further documents need to be provided in a language which "can be easily understood by the (competent national) authority". (cf. Art. 6, second sentence, BauPG) In Germany, this will also generally be German (see also FAQ V/5 "When providing documentation, which requirements are there concerning the language in which the documents need to be drawn up?"). EU CPR FAQ catalogue, Part IV 3

4 IV/10 What is to be done in case of inconsistencies between the specifications concerning the CE marking in Annex ZA of a harmonised standard and the requirements for the CE marking resulting from the EU CPR? In the case of an inconsistency between Annex ZA and the legal requirements set out in the EU CPR or Regulation (EC) No 765/2008, the legal requirements prevail. Harmonised standards are binding (see also FAQ I/1 "When does a construction product fall within the scope of the EU CPR?", I/4 "Where are the harmonised requirements for a construction product outlined?" and I/7 "What are "coexistence periods"?") but they do not have the rank of a law. The requirements for the CE marking directly result from the legal requirements. (cf. Art. 8(1) EU CPR in conjunction with Art. 30 Regulation (EC) No 765/2008 and Art. 9 EU CPR) IV/11 May the CE marking be followed by information which does not pertain to an essential characteristic determined in the harmonised technical specification for the intended use? No. Art. 9(2) EU CPR stipulates which information follows the CE marking. This information includes inter alia the performance related to the essential characteristics, expressed by level or class, as declared in the declaration of performance. Including information not pertaining to an essential characteristic determined in the harmonised technical specification for the intended use could mislead the users of the construction product. If such information is given outside the CE marking, they must not mislead the users about the meaning of the CE marking. In particular, it must not contradict the information required. (cf. Art. 30(5) Regulation (EC) No 765/2008) IV/12 (March 2015) May the information following the CE marking be given by inserting a reference to the information given in the declaration of performance? The EU CPR does not provide for the possibility of giving the information following the CE marking by inserting a reference to the declaration of performance. However, the German market surveillance authorities accept such a reference if the CE marking is not affixed to the product but to one of the accompanying documents in accordance with the conditions set out in the second sentence of Art. 9(1) EU CPR and it is provided in the same document as the declaration of performance and the information which follows the CE marking is clearly and unmistakably distinguished from the declaration of performance. This possibility does not affect the obligation to affix the CE marking primarily to the product itself, a label attached to it or the packaging. (see also FAQ IV/2 "Where should the CE marking be affixed?") IV/13 Does the CE marking need to be followed by all essential characteristics listed in the declaration of performance or only by those for which the manufacturer has declared a performance (expressed by level or class)? While, in the declaration of performance, all essential characteristics which have been determined in the harmonised technical specification for the intended use need to be listed, the CE marking will only be followed by those essential characteristics for which the manufacturer has declared a performance. This applies to the essential characteristics for which the performance has been declared by level or class. EU CPR FAQ catalogue, Part IV 4

5 The German market surveillance authorities are of the opinion that, by analogy, the performance in relation to an essential characteristic also has to be given if it has been expressed in a description or in any other way in the declaration of performance due to the absence of levels or classes in the harmonised standard. If in the declaration of performance no performance has been declared in relation to a specific essential characteristic and the letters "NPD" have been indicated instead, this essential characteristic will not be included in the CE marking. IV/14 Which year does the phrase "the two last digits of the year in which the CE marking was affixed" refer to? The German market surveillance authorities consider it to be in conformity with the EU CPR if the two last digits of the year in which the product was made available on the market for the first time are indicated. If the performance of the product does not change over the years, the indication of the year behind the CE marking does not need to be changed either. Therefore, the indication of the year may also relate to years prior to 2013, if applicable. IV/15 Does the CE marking need to be followed by the version of the harmonised standard? Yes. The reference to the harmonised technical specification applied needs to be indicated following the CE marking. Since modifications in the essential characteristics and the performances to be declared may occur during the revision of a harmonised standard, the version of the standard used for the CE marking needs to be included when giving the harmonised technical specification applied. IV/16 Does the CE marking need to be affixed to each component of a kit? It is sufficient if the CE marking is affixed to one component of the kit in compliance with Art. 9(1) EU CPR as long as the individual components can be clearly identified as belonging to the kit. One way of ensuring this is to use a single trade name for all components. (see also FAQ I/3 "What is a kit?") IV/17 How do products need to be marked which fall under several harmonisation acts? Each product only bears one CE marking. By affixing the CE marking the manufacturer declares that his product is in conformity with all applicable requirements laid down in the EU harmonisation legislation for the affixing of the marking. (cf. third subparagraph of Art. 8(2) EU CPR) Thus, products which fall under several harmonisation acts need to be marked in a way which complies with all relevant provisions. EU CPR FAQ catalogue, Part IV 5