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CE marking responsibilities change for construction products: how does it affect you?

The Construction Products Regulation 2011 came into effect on 1 July, meaning that construction products sold in the EU now have to be CE-marked. Make sure you understand the changes and your new obligations.

Since 1993, certain categories of products sold in the EU have had to be CE-marked to demonstrate compliance with applicable EU legislation. This used to be voluntary for ‘construction products’ but, following the introduction of the Construction Products Regulation 2011 on 1 July 2013, it is now mandatory.

What is a construction product?

Broadly speaking, a construction product is any product or kit that is produced and placed on the market for incorporation into any construction works, such as a building or civil engineering project.

The product must also have an effect on the performance of those works with respect to the seven specified basic requirements for construction work.

“A careful analysis of the legislation and the individual standards is often required to determine whether a product is affected”

This will include a very wide range of products including bricks, lintels, sand, aggregates and bathroom furniture, which are covered by one of two harmonised technical specifications: a harmonised European standard (EN), or a European Technical Assessment (ETA).

In practice, it may seem straightforward to determine whether or not a product is affected, as all you need to do is check whether a product is covered by an EN or ETA.

However, we know from experience that there is some scope for debate about the interpretation of many standards. We have advised several clients operating within manufacturing associations who have been locked in debates with other members, and we know that a careful analysis of the legislation and the individual standards is often required to determine whether a product is affected.

Key obligations under the regulation

In order to comply, manufacturers will be required to draw up a Declaration of Performance for each affected product that will be placed on the market. This is the manufacturer’s declaration that the product has been tested in compliance with the relevant standard.

A copy of the DoP must be available for inspection, either on the manufacturer’s website or with the product when it is placed on the market. It must also be retained by the manufacturer for 10 years after the product has been placed on the market, and must be made available to the competent authorities on request.

“We recommend that manufacturers, importers and distributors of products that may be affected by the CPR review their product ranges to identify any potentially affected products.”

In addition, manufacturers must ensure the product is accompanied by instructions for use and relevant safety information.

Products caught by the CPR must also be CE-marked. The CE mark must be affixed visibly, legibly and indelibly along with the last two digits of the year when the mark was affixed and the name and registered address of the manufacturer.

Further information, such as the reference number of the applicable technical standard and a product identification code, must also be included.

Clearly there will be some construction products, such as sand or aggregates, which cannot be CE-marked and in those circumstances it is going to be acceptable to affix the appropriate marking to the product’s packaging.

CE marking – what are my responsibilities?

CE marking is generally the responsibility of the person who places a product on the EU market for the first time and it will not be anything new for many suppliers who have already been voluntarily CE-marking their products.

In most cases this will be the manufacturer or its authorised representative in the EU. But this could be an importer or distributor if, for example, they modify or rebrand a product, or the manufacturer is based outside of the EU and does not have an authorised representative.

Other operators in the supply chain, such as builders’ merchants, will also be responsible for ensuring that, where necessary, they only stock and sell compliant products. They will be breaking the law if they sell non-compliant stock.

We therefore recommend that manufacturers, importers and distributors of products that may be affected by the CPR review their product ranges to identify any potentially affected products.

Matthew Shaw is a senior associate and Alice Puritz is a trainee at DLA Piper

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