Earlier this year, the European Commission adopted a proposal for a revised Construction Products Regulation (CPR) which was set to simplify rules for construction products on the EU market. The CPR was designed to lay down harmonised rules for the marketing of construction products in the EU, providing a common technical language to assess the performance of construction products.
It was created to ensure that reliable information is available to professionals, public authorities and consumers so they can compare the performance of products from different manufacturers in different countries.
Standards for individual fire safety products such as smoke detectors fall under the CPR and the performance characteristics of these products are to a large extent identical across all of Europe encouraging their free trade across the region. A system compatibility standard outlines which products belong to which system while the design, installation, commissioning, and maintenance of a fire safety system are largely achieved through national standards.
The produced standards focus on the overall function of the devices and ensure they are robust and have performance levels that are in alignment with national and/or regional regulations. This arrangement has been developed over many years and has met the needs of stakeholders across the continent. However, the application standards would be meaningless without robust product standards.
Association of European manufacturers, installers and service providers of the electronic Fire Safety and Security industry, Euralarm, said that the drafted CPR shows that it is not possible to solve the current issues easily as the legal boundaries remain unchanged. Harmonised standards remain legally controlled documents according to the Commission’s interpretation of the European Court of Justice ruling and the new CPR does not provide any means to resolve this.
The fire safety industry would have to re-write all product standards to align with what the European Commission is requesting and consequently the system standard and all the national application standards would have to be re-written, which Euralarm estimates would be an undertaking of at least 10 years. Euralarm has now issued an official position on the CPR proposal.
Euralarm’s position
Welcoming the proposal for the new CPR as the start of a journey towards a more sustainable and digital construction sector, Euralarm noted a number of positives. It welcomed the CE-marking remaining a part of the new CPR, calling it an important aspect of the harmonisation of the Single Market for construction products which has allowed companies to enjoy the free movement of these goods.
It also welcomed the increased focus on sustainability as most Europeans spend up to 90% of their time indoors and building are said to account for 40% of the energy consumption, Euralarm said it is easy to see why the construction products industry plays such an important role in the implementation of the circular economy package and environmental sustainability.
Other positives it noted were the use of digital tools for compliance procedures being extended, that the Commission is empowered to adopt delegated acts to avoid double assessment of products, and that, through the provision of delegated acts, particular product requirements will become mandatory under the new CPR.
While welcoming these aspects, Euralarm noted that it believes they need to be implemented in a practical and transparent way and, moreover, they highlighted a number of fundamental concerns with the proposal.
In particular, in the introduction and conclusion, Euralarm emphasised that the CPR proposal failed to address the core problem: “We note that the legal framework proposed is very flexible and, contrary to the consultation process, makes fundamental changes to the CPR. However, the times scale for the introduction of the new legislation, coupled with complexity of options and need for delegated acts to establish the details and consequences for our sector, fail to address the core issue which is that the EU standardization process has stagnated under the weight of the legal interpretations and obligations of the current CPR.”
Another key issue Euralarm highlighted was the complexity of the proposal: “We are not sure if we understand the big picture correctly – processes aren’t clear. The multiplication of using delegated act brings unnecessary complexity.”
It also raised concerns with combining the DoP (declaration of performance) with a DoC (Declaration of Conformity), noting that, contrary to the objectives of the proposal, does not result in the simplification that many stakeholders aspired to during the impact assessment.
Concluding its response, the position paper states that: “Euralarm welcome the publication of the Commission’s proposal for a new Regulation on construction products and believes that the suggestions and questions presented in this position paper would contribute to a clearer regulatory environment for the construction sector if the proposal goes ahead.
“However, Euralarm also observes that the core problem facing our sector is the stagnation of the standardisation process and have reservations that the processes and legislative complexities contained within Commission’s proposal for a new CPR will address this fundamental issue.”
The expert view: Peter Massingberd-Mundy
IFSJ asked Technology and Expert Practices Manager, Peter Massingberd-Mundy, to comment on the CPR and Euralarm’s position.
Why is the standardisation process stagnating?
To oversimplify the problem there are three key legal aspects to the challenges facing standard writers.
Firstly, we are repeatedly informed that the “James Elliott case” fundamentally changed the legislative standing of standards in Europe because the Judge concluded that any harmonised standard should be considered to be part of EU law. One of the key reasons given was that “the Commission exercises significant control over the procedure for the drafting of harmonised technical standards by the CEN” (ref case C-613/14) .
This court ruling (in January 2016) was in relation to whether it was necessary for a national court to refer to the European Court for an interpretation of a harmonised standard. However, the ruling has had much wider implications such that it is becoming expected that any requirements in a harmonised standard must be agreed by all member states and recorded in a standardisation request BEFORE the standard can be written. This calls to mind the common conundrum: Which comes first? – the hEN or the regg? … is it actually possible to agree “requirements” when the test methods have not been defined?
The second aspect is that the Construction Products Regulations are fundamentally different from other Directives under the New Legislative Framework in that hENs cited under the CPR become a mandatory requirement – the expectation being that they should express how the performance of (the “essential characteristics” of) a product is to be expressed – the logic being member states should establish any performance requirements unless those requirements have been defined in the Standardisation Request.
Other legislation (such as EMC and LVD) take an opposite approach; they lightly define the essential requirements within the regulation/directive (e.g. the product must be “safe”) and the hENs are prepared to provide a standardised and more detailed way to demonstrate that the essential requirements have been met. In fact, a product that is in line with the appropriate hEN is conferred with a “presumption of conformity” to the legislation.
The third aspect is that the European Commission took the opportunity to update the original Construction Product Directive (CPD) and turn it into a Regulation – thus enacting it as law in all member states. One fundamental change that was slipped in during this update (possibly in anticipation to the impending ruling of the James Eliot case) was Article 17 clause 5 which states that “The Commission shall assess the conformity of harmonised standards established by the European standardisation bodies with the relevant mandates.” These mandates are essentially the original, light touch, standardisation requests prepared under the CPD.
These legal aspects (and several others, some relating to exhaustiveness) have stagnated the preparation and citation of hENs under the CPR. For TC72, 6 candidate hENs prepared in the early 2010s remain uncited despite them being technically sound and adopted by several countries. Moreover, the existing cited standards (such as EN54-11 for fire alarm call points) cannot be updated because, if TC72 opts to do so. any new revision will not be cited by the European Commission, so the market ends up with TWO current versions – the latest one and the legally adopted one.
What changes in the revised CPR is the European Commission proposing?
It took our team of experts several long meetings and many hours of reading to try and de-cypher the changes proposed by the Commission, but they amount to introducing more powers for the Commission; increasing the use of Delegated Acts to provide the details and legal control by which the standards for each sector within the Construction Industry are realised. Instead of taking the opportunity to reduce the legal complexity and simplify the CPR, the proposal introduces more options – which, while welcome, requires detailed secondary legislation (in the form of a Delegated Act or Standardisation request) before a harmonised standard can be written. The timescales for this are eyewatering – extending to 2045. For example, Fire alarms are 11th priority under the CPR Acquis and work will not start on drafting new Standardisation requests for the EN 54 series before 2024.
This is in stark contrast to the request made in the EU parliament on 21st March 2021 that the Commission find a quick and viable solution to the backlog in standardisation.
However, this same parliamentary debate also called on the Commission; to explore the possibility of including additional obligations with respect to health, safety and environmental aspects, to harness the full power of digital technologies and to assess how the CPR could enhance circularity. These aspects are addressed in the Proposal but exacerbate the main problem of stagnation.
Why is this unfeasible for the fire safety industry?
As outlined above TC72 has 6 candidate hENs stuck in the pipeline and several that need revising. For example, many cited standards refer to an old revision of the EMC immunity standard EN 50130-4. This leads to double testing as manufacturers are obliged to get their products tested by a notified body to the revision harmonised under the CPR but also have to arrange testing to the latest version to satisfy the EMC directive (and several significant “quality marks” which continue to be a prerequisite for successful sales in certain markets).
A more specific example is EN 54-3, for sounders, which was revised in 2014 to include a number of important updates. Unfortunately, despite a formal amendment in 2019 (and proposals for a further amendment to address specific objections to its citation) the harmonised revision remains at the 2006 amendment. This situation is confusing and frustrating for the market and particularly for the Notified Bodies as they are unable to apply the clarifications and improvements of the 2014 revision.
In short – standards should not be set in legal concrete and need to remain reasonably dynamic – 10+ years between revisions is not appropriate.
What is Euralarm’s positions on the latest proposal?
As a trade association, Euralarm has many members and establishing a strong consensual position is challenging – particularly in complex matters. Thus, while emphasising that the Proposal does not address the core problem of stagnated standardisation the position paper also looks to provide some practical observations on the proposal and how it might be improved – if the Parliament opts to pursue ever more complex EU regulation of standards.
What alternative approach does Euralarm suggest?
Unpicking the legal gordian knot that is being tied around standards is a huge challenge but, within a small group of experts, Euralarm has identified and is exploring three possible approaches.
The first is to follow the path mapped out by the Commission and work towards adopting all the current expectation of our FD&A devices as legal requirements. Several parties see this as the safest way of proceeding, but others fear it will stifle innovation and be a barrier to introducing safer products and systems.
The second approach is to retain the current performance expectations of FD&A devices within the hENs and, while it would be a legal requirement to declare the performances of each characteristic the standards would facilitate an option not to meet normal performance expectations. This idea has been pursued by CEN TC72 and is referred to as the “open descriptions” approach. Several parties are concerned that this approach is not possible/permitted/supported by the Commission/legislation while others see it as an effective way to retain current performance expectations without establishing each and every one as a legal requirement.
The third idea is to take a systems approach and only set down legal requirements on the system performance, not on individual components. As such the basic requirements for detection, manual initiation, response times, transmission path monitoring and the alarm output (sound/light) would be established in a new simplified hEN. It is anticipated that the current EN 54 series would be retained as voluntary standards, for reference by installations codes and to support Quality marks. Some parties fear that subsidiarity principles may be contrary to this approach, particularly for member states when the installation codes rely on the legal conformity bestowed by the EN 54 standards being harmonised. Others are concerned that the non-harmonised status of the EN 54 series may not be possible but if is then the advantages of minimising the categoric legal restrictions on products makes this an attractive solution.
What, if any, are the next steps?
Euralarm continues to flesh out the details of these three approaches and though discussion with its members and with colleagues in CEN, the Commission, member states and national associations will pursue the most appropriate.