Under the Construction Products Regulations (‘the Regulations’) direct legal obligations are imposed on Manufacturers, Importers and Distributors of relevant construction products. As a builders merchant, you are a ‘supplier’ of construction products; do you know what your obligations are? Siobhan Kenny of Hussey Fraser explores some of the key implications of the regulations.
In July 2013, the Regulations became part of Irish law. They provide for the harmonisation of conditions for the marketing of all construction products to be incorporated into construction projects within the EU. The Construction products covered are those products for which a harmonised European Product standard (known as a ‘hEN’) is in force and are intended to be incorporated into the permanent works. Other products may be covered by other standards but, in the main, most construction products are covered by hENs The idea behind the Regulations, (per Department of the Environment information booklet), is to “overcome the technical barriers to trade which arise where different countries in Europe have different standards, testing and
labelling approaches for the same construction products”. By harmonising the language, the standards and the labelling of such products it is intended that products may more freely and readily be available for use throughout the EU area.
The range of products covered is extensive. The information booklet lists 35 different categories of products covered by the Regulations – ranging from pre-cast concrete and steel products to chimneys and flues, from insulation products to doors and windows and from fire retardant products to cladding and curtain walling.
The Regulations directly affect Manufacturers, Importers and Distributors of relevant construction products – all of whom are expressly required by law to ensure that relevant products are compliant with the Regulations. They indirectly affect designers and builders who are required, by law and contract, to ensure and certify that the works which they have designed, specified or built, are completed using materials and goods, which are reasonably fit for their intended purpose, and comply with Building Regulations.
The heaviest burden is placed on the Manufacturer of a relevant product who is required to provide a detailed Declaration of Performance (‘Declaration’) and affix the CE mark to each product.
The Declaration will contain detailed information about the product including the product type, its intended use, a list of its essential characteristics, and the performance level of at least one of its essential characteristics by reference to the hEN.
Products must be labelled and identifiable with batch numbers where possible and full contact details. Safety information and instructions must be provided with the product – in a language suitable for the relevant market.
Importers are obliged to place “on the Union market only construction products which are compliant with the applicable requirements of these Regulations”. It is not open to an Importer to market non-compliant construction products.
A compliant product will have a CE mark, a Declaration and will be properly labelled and identifiable. The Importer must add his own contact details to the label. The product must be accompanied by instructions and safety information, and be stored in a way that will not impact on declared performance levels. Sample testing to verify actual performance against declared levels may be required.
The Supplier must satisfy himself that the Manufacturer/Importer has provided all relevant documentation for the product and that it is properly marked and labelled. The products must be stored properly to avoid impact on declared performance levels. If the product is not properly marked or labelled, or the documents have not been provided, the product is non-conforming.
Note: if a Distributor places a relevant product on the market under his own name or modifies a product, he will be treated as the Manufacturer of that product and will assume full Manufacturer’s obligations in respect of that product. If a Manufacturer, Importer or Distributor has reason to believe that a relevant construction product does not conform, for whatever reason, with the declaration or with any other requirement of the Regulations, they are under an express legal duty to take corrective action and bring the product into conformity, or to withdraw or recall it.
By law, designers and builders involved in construction projects must ensure, and will probably be required to certify, that the completed building is, or will be, compliant with applicable law, including, of course, the Building Regulations. The Building Regulations require that all works should be carried out using “proper materials…which are fit for the use for which they are intended and for the conditions in which they are to be used”.
Designers when specifying products, and builders when selecting products which comply with the contract specification, will be concerned to ensure that selected products meet certain standards. They rely on the information provided to them about the product in question. The purpose of the Regulations is to allow the designer or builder to assess competing products from throughout
the EU on the basis of similar information, similar technical language and similar declarations of performance in respect of each individual item.
Competent national authorities (e.g., local authorities/ government departments) have far-reaching powers under the Regulations to monitor the market and ensure compliance with the Regulations. They can serve notices, require testing, seek information, direct removal of a noncompliant product from the market or order its recall and/or destruction.
In addition, failure to comply with the Regulations can lead to criminal prosecution and will almost inevitably also have substantive commercial implications.
The commercial consequences of a product recall or withdrawal are clearly serious, impacting all concerned in bringing the product to the market. In addition, the commercial consequences of supplying a non-compliant product, which is, in fact, incorporated into the permanent works, may be substantial.
The Regulations provide a series of checks and balances, through the imposition of serious legal obligations, to ensure that non-conformity can be and will be corrected at an early stage. Those obligations are imposed on Manufacturers, Importers and Distributors of relevant products. Most, if not all, commercial contracts contain express or implied obligations that the parties to it will comply with legal obligations – a breach of which might lead to an action for damages.
If each party involved in the process of bringing a relevant construction product to the market complies with their legal obligations, the information provided to the end-user, informing his decision as to whether or not the product is a suitable one to meet his requirements, will be reliable, understandable, accurate and verifiable. Each person in the chain therefore relies on the person above them to comply with those obligations.
Compliance with the substantive legal obligations imposed by the Regulations requires an understanding of those obligations and the introduction of proactive systems designed to ensure that legal obligations can be met, information can be provided and appropriate records can be maintained.
Additional information can be found at: www.environ.ie/en/DevelopmentHousing/BuildingStandards/#ConstructionProductsRegulation (CPR)
This Business Support article featured in the September/October 2015 edition of The Hardware Journal.