nb-cpd-11-469r2 gnb-cpd issues with the cpr requiring clarification

GNB-CPD

All SGsCo-ordination of the Group of Notified Bodies for the Construction

Products Directive89/106/EEC

NB-CPD/11/469r2Issued: 6 February 2012

Working Document

PLEASE NOTE:

This is a “living” document, with additional questions, and modifications to existing questions and proposed answers, being added by CPD TechSec as we become aware of worthwhile suggestions.

The first version of this document, NB-CPD/11/469, was tabled for the 30th AG meeting (11 October 2011, Brussels). Following that meeting, a revised version, NB-CPD/11/469r1, was circulated for comment from Advisory Group. A further revision was circulated to sector group officials as NB-CPD/SGs-12/033; no responses to this circulation were received, but additional information resulting from the 2nd SCC-CPR meeting was added.

Five of the most important and urgent questions were included in the GNB-CPD’s report to the 2nd SCC-CPR meeting, 24 January 2012, ‘NB-CPD M08-CPR Jan 2012’, although the report was not tabled at the meeting, and little information was provided towards answering any of the questions. This document will continue to evolve as further questions are added, and answers are clarified. A full version of the document, or selected questions, may be submitted to future meetings of SCC-CPR.

Drafting note:Changes made since NB-CPD/11/469 was issued on 28 September 2011 (for the 30th AG meeting) are in green text.Changes made since NB-CPD/11/469r1 was issued on 24 November 2011 (for further AG comment) are in “dark teal” text.

GNB-CPD issues with the CPR requiring clarification by SCC or the CommissionGeneral comments: This document is presented in the form of questions, and draft answers to reflect what the GNB-CPD expects to hear as the formal answers.

Do we need to distinguish between clarifications that are essential before NBs can undertake their duties under to the CPR (‘need to know’) and clarifications that would be useful (‘nice to know’)? If so, which questions belong in each category?

The CPR should be seen as an opportunity and not as a barrier as all answers should start with the idea that something is OK until proved otherwise.

CHAPTER I - GENERAL PROVISIONS

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Article 1 - Subject matter

Q. Which countries and member states are covered by the Regulation? The regulation applies directly in all member states of the European Union (EU). It should also apply in other countries that adopt the Regulation into their own legislation with the approval of the Commission. This includes members of the European Free Trade Association (Iceland, Lichtenstein and Norway) who are party to the European Economic Area (EEA) Agreement with the EU, Switzerland through bi-lateral agreements with the EU and Turkey through an EC Decision.In the future candidate countries may join the EU and adopt the Regulation. These currently include Croatia, Iceland, Former Yugoslav Republic of Macedonia, Montenegro and Turkey.

Article 2 - Definitions Answers not required for NBs to function.

Q. If a construction product falls under the definition of a ‘construction product’ in Article 2 Point 1 and there are no harmonized technical specifications, does this mean that the ‘essential characteristics’ and ‘Basic Works Requirements’ in Annex 1 will still have to be demonstrated by the manufacturer (e.g. conformance to non-harmonized EN, National Approval)?

No it falls outside CPD/CPR and the responsibility comes back to national requirements.

Q. A construction product that is not covered by a harmonized technical specification may incorporate components for which there are harmonized product standards. If a component manufacturer does not place his product on the market as a construction product, and only supplies it directly to one or more manufacturers for incorporation as part of a final product, does he need to follow any harmonized product standard that would be applicable to the component, and does he need to CE mark the component? (For example, in the case of wind turbines to EN 61400-22:2011, should the steel columns comply with EN 1090-1:2009/AC:2010?)

It will probably be for individual Member States to decide whether they require harmonized standards for components to be followed if a non-harmonized product standard does not require components to meet relevant harmonized standards.Mr Leoz made clear at the 71st SCC that Commission Services does not consider that there is any requirement to CE mark components, as they are not “placed on the market”. However, it is understood that some MSs require CE marking of components.

Article 3 - Basic requirements for construction works and essential characteristics of construction products

CHAPTER II - DECLARATION OF PERFORMANCE AND CE MARKING

Article 4 - Declaration of performance

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Article 5 - Derogations from drawing up a declaration of performance

Q. Will guidance or guidelines be issued for manufacturers on the derogations? And will this included examples of the use of derogations?

Need to ask the Commission if they are going to produce guidance – then could ask to include examples of the three occasions when derogations are accepted.

Article 6 - Content of the declaration of performance

Article 7 - Supply of the declaration of performance

Article 8 - General principles and use of CE marking

Article 9 - Rules and conditions for the affixing of CE marking

Article 10 - Product Contact Points for Construction

Q. What happens if a MS does not provide sufficient resources and expertise to run PCP and provide the information that NBs and manufacturers require?

This doesn’t affect the functioning of the NB – each MS will make its own arrangements. NMG could take up the question or the Commission could be asked to intervene if a MS is considered to be providing a poor service. But it raises the question of what is expected of the PCP?

There should also be ‘self help’ from SGs – using experience from MS who CE mark under the CPD.

Q. Is the PCP required to take responsibility for the information it provides including any liabilities if any incorrect or deficient information it provides causes damage to others?

We assume that the liability will be in accordance with the regulations/rules of MSs.

Q. Are all MS building regulations, codes and guidance in accordance with EN standards and Eurocodes? And importantly are construction product performance characteristics in accordance with hENs and Eurocodes requirements, simplified procedures allowed, etc. and are they all comprehensible to the specifier of construction products using EN standards? If not would these be viewed as being a barrier to trade?

It appears that MSs are continually updating National documents as they are reviewed but this does mean that there will always be some delays between the introduction of hENs and the revision of national documents.

Q. Will there be a list provided of contact details for PCPs in each MS? Ask the question of the Commission – but again rather down to MS though SG and AG can provide some influence if some MSs are more forthcoming with information.

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Q. Will each PCP be able to provide a standard DoP and certificates in a MS language for manufacturers and NBs to use that are acceptable to National Authorities?

In the CPR in the different MSs languages there is a copy of the DoP.The GNB-CPD will continue to work on translating certificates and will welcome certificates in MS languages that are not currently available.

CHAPTER III - OBLIGATIONS OF ECONOMIC OPERATORS

Q. Are economic operators aware that construction products are not always for new build but can also be classed as consumer products (e.g. fire alarms, doors and windows) and as such consumer product regulations will also apply. The market surveillance authorities in each MS should be informed of this.

Probably but still useful to bring to the attention of relevant groups if necessary.

Article 11 - Obligations of manufacturers

Q. Should manufacturers and NBs limit their work to what is required by the harmonized technical specification, or are they also expected to consider the wider requirements of the Regulation? Should certification NBs limit their work to the requirements of the hEN, or should they check whether manufactures were are meeting their obligations under Article 11. (Under the CPD, such requirements were imposed by national regulations in some Member States, but these requirements would be replaced by the CPR.)

Question for the Commission or SCC.

Article 12 - Authorised representatives

Article 13 - Obligations of importers

Article 14 - Obligations of distributors

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Article 15 - Cases in which obligations of manufacturers apply to importers and distributors

Q. Would an importer or distributor falling under Article 15 need to have his own certificate if the product falls under AVCP systems 1+, 1 or 2+, or may he draw up a declaration of performance based on a certificate issued to the manufacturer who supplied the product to him?

Manufacturers cannot transfer the right to use a certificate to importers or distributors of their products. Therefore, any importer or distributor falling under Article 15 would need to obtain his own certificate covering the manufacture of the product from a notified body - if the product falls under AVCP 1+, 1 or 2+.The guidance from the GNB-CPD on rebranding and subcontracted manufacture (position paper NB/CPD/AG/07/008r1) would apply in such cases, and describes methods of avoiding unnecessary repetition of work in the certification process. It is expected that this guidance will be updated to refer to the CPR rather than the CPD, and to remove or replace references to Guidance Papers.

Article 16 - Identification of economic operators

CHAPTER IV - HARMONIZED TECHNICAL SPECIFICATIONS

Article 17 - Harmonized standards

Q. If a new Annex ZA is being developed by CEN and to be introduced by end of November 2011 would it be possible for the GNB-CPD and for CEPMC to comment as they have an active interest in carrying out the certification and testing activities described?

CPD TechSec to monitor progress and circulate as needed. At the GNB-CPD AG meeting on 11 October 2011 it was agreed for:

Mr Amilcar da Costa to send CPD TechSec the latest version of CEN’s draft Annex ZA for the CPR

CPD TechSec to circulate CEN’s draft Annex ZA to AG members for comment.

CPD TechSec to compile GNB-CPD comments on CEN’s draft Annex ZA and submit to CEN by end October 2011.

GNB-CPD comments on the draft Annex ZA were forwarded to CEN and circulated to AG members on 31 October 2011 and with a minor revision on 03 November 2011. The final documents were NB-CPD/11/476a - GNB-CPD general comments on Annex ZA template October 2011 and NB-CPD/11/476br1 - Template ZA AVCP-21 SEPT 2011 with GNB-CPD comments.

Q. When can NBs expect standards with a revised Annex ZA to start appearing?

Probably at the next revision of the standard after 01 July 2013.

Article 18 - Formal objection against harmonized standards

Article 19 - European Assessment Document

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Article 20 - Principles for the development and adoption of European Assessment Documents

Article 21 - Obligations of the TAB receiving a request for a European Technical Assessment

Article 22 - Publication

Article 23 - Dispute resolution in cases of disagreement between TABs

Article 24 - Content of the European Assessment Document

Article 25 - Formal objections against European Assessment Documents

Article 26 - European Technical Assessment

Article 27 - Levels or classes of performance

Article 28 - Assessment and verification of constancy of performance

CHAPTER V - TECHNICAL ASSESSMENT BODIES

Q. Will National Approvals continue to be allowed if a construction product does not meet all the performance characteristics of the applicable hEN due to batch variations? See recital 33. Similarly will EADs include requirements for design, installation and compliance with national requirements thereby removing the need for national approvals?

If a product doesn’t meet the standard it can’t be placed on the market. If it is said to comply with the standard then there must be a declaration or NPD declared if this is allowed.

Article 29 - Designation, monitoring and evaluation of TABs

Q. Is it right to think that TABs will not be notified against individual EADs?

It is expected that TABs will be notified for the broad areas in Annex IV, without any more detailed sub-divisions.

Q. When/how will the existing ETAGs become EADs, and how will notification to them be handled?

This is a question for the Commission and SCC.

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Q. Will TABs be allowed to draft EADs in advance of July 2013 in order to issue new-style ETAs immediately on 1 July 2013?

1. As soon as a TAB is designated and the format of an EAD decided it should be allowed to perform the tasks it is designated for. 2. EADs can not be scrutinized until the organization of TABs has been created.3. Adopting EADs is possible from 1 July 2013 onwards (Article 68 referring to Annex II). The SCC for the CPR is already active and should be able to prepare in advance so that EADs and ETAs can be adopted from that date.

Q. Point 4 mentions guidelines for evaluating TABs to be adopted by the Commission after consulting SCC. When will these guidelines become available?

The Commission issued on 07 November 2011 an explanatory document called “THE DESIGNATION OF TECHNICAL ASSESSMENT BODIES IN THE FIELD OF CONSTRUCTION PRODUCTS REGULATION (305/2011/EU)”.

Article 30 - Requirements for TABs

Article 31 - Coordination of TABs

Article 32 - Union financing

Article 33 - Financing arrangements

Article 34 - Management and monitoring

Article 35 - Protection of the Union’s financial interests

CHAPTER VI - SIMPLIFIED PROCEDURES

Q. Will guidance or guidelines be issued (for MSs, manufacturers, notified bodies) on the use of the simplified procedures?

This is a question for the Commission.

Q. Will manufacturers be able to use Simplified Procedures before 01 July 2013? If not micro-enterprises and SMEs will have to use the existing CPD CE marking regime in order to comply with the CPR on 01 July 2013. Simplified procedures will therefore only benefit those who are placing new products on the market after 30 June 2013.

It certainly appears that it will be accepted to anticipate 30th June 2013.

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Q. What is there to stop Simplified Procedures from being abused? Large manufacturers can simply set-up a SME or microenterprise to have the construction product certified and tested more easily then license the product to larger manufacturers potentially saving them significant sums of money. Of most concern with systems that require extensive certification and testing of several performance characteristics (e.g. doors and windows, curtain walling, waste water treatment systems, circulation fixtures, fixed fire fighting systems, structural metallic products, structural timber products, building kits).

It seems that this will all depend on who places the product on the market and under whose name this is done.(Article 37 applies to micro-enterprises manufacturing construction products, and so it should not be permissible for a SME importing the product of a large manufacturer to use these procedures.)

Article 36 - Use of Appropriate Technical Documentation

Article 37 - Use of simplified procedures by micro-enterprises

Article 38 - Other simplified procedures

CHAPTER VII - NOTIFYING AUTHORITIES AND NOTIFIED BODIES

Article 39 - Notification

Article 40 - Notifying authorities

Q. What steps are being taken by the Commission and the European co-operation for Accreditation (EA) to ensure each MSs National Accreditation Body will be working equivalently when assessing NBs and TABs to the CPR?

With regard to the Commission, a key advance from the CPD is specifying the requirements for notification authorities in the CPR. At the 1st SCC-CPR meeting the Commission said that equivalence of accreditation bodies was a horizontal issue under the New Legal Framework. Regulation 765/2008 Article 10 requires peer evaluation of national accreditation bodies. It is assumed that the EA Multilateral Agreement (MLA) is intended to achieve this, using a peer evaluation process of accreditation bodies. For non-accredited bodies, the notification procedure is designed to favour bodies with accreditation certificates over those that do not possess accreditation certificates (Articles 47 and 48).

Article 41 - Requirements relating to notifying authorities

Article 42 - Information obligation for Member States

Article 43 - Requirements for notified bodies

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Q. Will the Commission be issuing guidelines on how to interpret Article 43 for Notifying Authorities and for National Accreditation Bodies?

Guidance is being established in stages by Commission responses to questions from MSs.

Q. How will NBs be notified to the CPR? Will there be a NANDO-CPR? Minutes from 1st SCC-CPR meeting expect a “NANDO-CPR” to be available at the end of October 2011. It was stated that all NBs would need to be re-notified. In an email to Notifying Authorities on 16 November 2011 the Commission informed that the NANDO had been updated for the CPR and was ready to accept designations and notifications for NBs to the CPR. It is not however expected that NBs will be designated to the CPR until the European co-operation for Accreditation (EA) has formally decided the criteria for accreditation under the CPR.

Q. When can NBs expect to be able to become notified to the CPR? Some NBs have clients who would like to know how the change will affect them. NBs are therefore under pressure to inform clients of the CPR and would like to be notified soon to allow them to carry out certification and testing tasks in preparation for issuing certificates and test reports valid from 01 July 2013.

Minutes from 1st SCC-CPR meeting expect a “NANDO-CPR” to be available at the end of October 2011. Designation and notifications on the “NANDO-CPR” website should then be available once MSs have established their designation and notification procedures and once the European co-operation for Accreditation (EA) has finalised its guidance on how National Accreditation Bodies should assess notified bodies.Products placed on the EU market under the CPD are deemed to comply with the CPR, and manufacturers may use EC certificates of conformity issued under the CPD as a basis for declarations of performance under the CPR (Article 66).

Q. NBs are now required to be independent of the organisation and product it assesses. Does this mean NBs belonging to manufacturers will need to be de-notified?

Article 43.3 presumably means that a body owned by an individual manufacturer cannot assess products of type that it manufacturers. Thus to be notified under the CPR, subsidiaries of manufacturers would need to become independent from their manufacturer owners unless they sought notification only for different product groups.

Q. What changes will NBs belonging to associations or federations be expected to take to comply with the CPR? Point 3 and 4 would seem to imply that there should be no ‘conflict of interest’ and connection between the NB and the designer, manufacturer, supplier, etc. Does this mean there may need to be management changes to the NB and any assessor should be fully independent of those being assessed (e.g. client, user)?

Whether NBs belonging to associations or federations will need to make changes will depend on how they operate at present. Any assessor should be fully independent of those being assessed. Presumably it is for the National Accreditation Body and Notifying Authorities to determine whether the NB’s structure and staffing achieves this independence.

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Q. Point 10 requires NBs to “observe professional secrecy with regard to all information gained in carrying out its tasks under Annex V”. There is however no exception for NBs to transfer information from one NB to another as can be required when different NBs carry out different parts of the certification and testing of construction products.

The CPD Annex IV requires “maintenance of professional secrecy by personnel”. Presumably under either directive it is for the client to instruct the NB to share relevant information. (Probably AG members can answer this more authoritatively than CPD TechSec.).

Q. What accreditation standards is it possible for NBs to comply with to be accredited? Is the list below accurate and complete?

EN 45011:1998, General requirements for bodies operating product certification systems

EN ISO/IEC 17020:2004, General criteria for the operation of various types of bodies performing inspection

EN ISO/IEC 17021:2006 or EN ISO/IEC 17021:2011 Conformity assessment – Requirements for bodies providing audit and certification of management systems

EN ISO/IEC 17025:2005, General requirements for the competence of testing and calibration laboratories

And which of these standards applies specifically to factory production control certification bodies?

This is a matter for EA to decide.

Currently, EA favours the flexible approach which requires that NABs will agree the most appropriate accreditation standard with each NB. In general:

ISO 17025 for testing EN 45011 for most certification NBs, subject to discussion

between the NB and their NAB assessment manager. EA 2/17 is used to fill any gaps.

EN 45011 for TABs (if accreditation required by MS).

Under the flexible approach ISO 17021 has been seen as the most relevant for quality audit assessments and therefore to factory production control certification bodies. So if a body is accredited, for example, to EN 45011 or ISO 17020, this means that as well as meeting all of the requirements of their baseline accreditation they would have to meet the additional relevant requirements of ISO 17021 as guided using EA 2/17. It is true that ISO 17021 covers the management system rather than specifically FPC but other parts of EN 45011 and the regulation itself would point to the FPC specifics to be assessed. Overall, the ISO 17021 part would define the process to be followed rather than the criteria.

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Q. Will the flexible accreditation approach (now called the 1+ approach) where a NB notified to several Directives will be able to choose which accreditation standard(s) they will have in order to meet the requirements given in EA 2/17 "EA Guidance on the horizontal requirements for the accreditation of conformity assessment bodies for notification purposes" be the preferred option? When will this be decided? The approach has the potential to minimise additional costs for NBs in the move to the CPR, help ensure NBs are assessed consistently and is representative of the flexible approach used in the CPR which encourages accreditation but does not make it mandatory.

This should be clarified by EA.

The 1+ approach has been circulated to EA accreditation bodies for confirmation of the 1+ approach. This is expected to be the final confirmation needed for the approach to be implemented.

GNB-CPD note that the term “1+ approach” for accreditation is similar to System 1+ for the Assessment and Verification of Constancy of Performance (AVCP) under the CPR. This may lead to confusion, and the GNB-CPD hopes that EA will change the name from the “1+ approach”.

To ensure consistent accreditation of NBs by NABs, EA has a peer review process which is supported by the:

Horizontal Harmonisation Committee which is responsible for the potential adoption of the flexible approach to the allocation of hENs.

EA Certification committee which covers the transition process to accreditation for Notified Bodies.

The GNB-CPD is also strongly encouraging EA to participate at GNB-CPD AG meetings.

Article 44 - Presumption of conformity

Q. If a notified body is formally to presume conformity of other notified bodies’ work, will there be any circumstances when the body could refuse to accept the work of others?

This could be a question for AG and the Commission.

Article 45 - Subsidiaries and subcontractors of notified bodies

Article 46 - Use of facilities outside the testing laboratory of the notified body

Q. Will the Commission or EA be issuing guidelines for NBs to be specifically designated as competent to work away from laboratories?(At the 2nd SCC-CPR meeting, the Commission indicated that it would welcome a draft from the GNB-CPD suggesting what requirements might be appropriate for designating laboratories as competent to work away from their own equipment.)

NBs would value guidelines to achieve equivalent working and the opportunity to help in drafting these guidelines.

Q. Specifically, will a NB be designated for use of facilities outside the testing laboratory of the notified body for all tests for which it is already notified, or will it need to be designated for using outside facilities for each test individually? (It is desirable that a harmonized approach is used, which might be proposed by the Commission or EA.)

It would suit NBs to have a single designation.

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Q. The CPR requires NBs to be specifically designated as competent to work away from own accredited facilities. Will manufacturers be able to identify which NBs are so designated? How will market surveillance be able to find out whether a NB has such a designation? (The information should be made available on NANDO, for instance within the scopes.)

It would suit NBs if the information was displayed clearly on NANDO.

Article 47 - Application for notification

Article 48 - Notification procedure

Q. Point 5 allows the Commission and MSs to object to a NB or new notification. Will there be a means to stop a NB from raising an objection with the Commission or MS about another NB if this is motivated for commercial or personal reasons?

Article 48.5 is taken from Decision 768/2008. Under the New Legal Framework, notifications under other directives are equally subject to potential objections, but this has not caused problems. Presumably either spurious objections are not raised with the Commission or MSs, or they are recognized as spurious and not taken forward.

Article 49 - Identification numbers and lists of notified bodies

Q. Article 49.1 requires a single identification number to be assigned to each NB even where the body is notified under several Union acts. Under which circumstances could a NB maintain different numbers?

NBs might have different numbers for branches within different MSs, whilst an organization may gain more than one number in a single MS as a result of mergers between bodies. It is important to know what should happen to their numbers in such circumstances.

Article 50 - Changes to the notification

Article 51 - Challenge of the competence of notified bodies

Article 52 - Operational obligations for notified bodies

Article 53 - Information obligations for notified bodies

Q. Article 53.2 requires NBs to provide other NBs carrying out similar tasks with relevant information on issues relating to negative assessments and/or verifications. Will this provision be implemented, and if so, how should this be achieved?(Under the CPD, the ‘Blue Guide’ states “Notified bodies have generally an obligation to inform the other notified bodies and the national surveillance authority about all certificates suspended or withdrawn and, on request, about certificates issued or refused.” However, no mechanism for NBs to inform other NBs has ever been put in place. Providing publicly available lists of certificates refused, suspended or withdrawn risks breaching the NBs’ duty of confidentiality.)


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Article 54 - Exchange of experience

Q. Has the Commission any plans to allow for the dissemination to National Authorities of information on changes to notification procedures such as the notification of NBs under the CPR and for horizontal notification (Annex V Clause 3)?

Although NBs will not need to take action on this issue, they will be interested in the outcome and in the equivalent working of Notifying Authorities.

Q. Some variation currently exists between MSs on how their Notifying Authorities complete the notification information on NANDO-Input. This can lead to confusion when a manufacturer or NB tries to find a NB to carry out specific tasks. Examples include:

1. Notification for AoC tasks of ETAs produced using CUAPs. Only some MSs notify for product certification, FPC certification and test laboratory as required in the ETA.

2. Some MSs (and NABs) appear to be unaware that you can notify for intended use (e.g. for uses subject to regulations on dangerous substances, for uses relating to energy conservation and/or noise reduction).

3. Test laboratories can be notified at System 3 but not for tests for products under System 1.

4. Dates for “Period of validity of the notification” vary from one MS to another.

5. Some NBs have more than one NB No. (e.g. one for the test laboratory and a second for the certification body), while most other NBs have only one NB No. (Article 49.1).

Notifying Authorities will also need guidance on the new requirements introduced by the CPR to ensure equivalency of NANDO scopes of notified bodies. These include:

1. Independence of manufacturers and of trade associations as notified bodies (Article 43).

2. Designation for use of facilities away from the notified test laboratory (Article 46).

3. Horizontal notifications (Annex V(3)).

If notifications are transported across from NANDO-CPD to NANDO-CPR, guidance may be needed for removal of options that were previous allowed under the CPD but not in the CPR. Examples include inspection bodies and calculation bodies.

Does the Commission have any plans to harmonize notification practices more closely?

NBs would like to see greater harmonization and clarification of procedures. However, this question can only be answered by the Commission, EA or SCC.

To date the Commission has provided the following answers:

The NANDO manual v3.2 (Dated 15 November 2011) which Notifying Authorities use in completing and updating NB notifications using NANDO-Input specifically states or requires:

1. “Please note, however, that if the CPD Body was notified against ETAs or ETAGs (European Technical Approval Guidelines), the related technical specifications will be lost in the new grid after copy. This is because ETAs and ETAGs are no longer included in the list of technical specifications of the new CPR.”

2. The expiry date of accreditation certificate for accredited NBs or the review date for non-accredited NBs to be listed. This will necessitate the regular updating of NANDO scopes by all NBs if their NANDO scopes are to remain valid.

Taken together these changes in notification practice will result in more up to date NB scopes on NANDO.

Article 55 - Coordination of notified bodies

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Q. When can the GNB-CPD be allowed to call itself the GNB-CPR? 01 July 2013.

Q. Can the GNB-CPD produce guidance for NBs on the CPR before it becomes the GNB-CPR?

Yes.

Q. As the GNB is recognised in the CPR does this mean that the guidance of the GNB will have more authority than under the CPD?

The GNB is pleased to see that its position has been formalized and that it has a clear responsibility for co-ordination of notified bodies. As a result its guidance should be considered more authoritative.

Q. If NBs are to participate in the work of the GNB, how are MSs going to force NBs to register on CIRCA or encourage them to attend SG meetings? Since it is the responsibility of the National Accreditation Body (NAB) in each MS to assess NBs, it could be argued that the NAB should enforce registration on CIRCA as part of obtaining NB status, which in turn would need to be enforced by their parent organisation the European co-operation for Accreditation (EA).

It is important for NBs that all should be required to engage with relevant sector groups and follow the resulting guidance.

CHAPTER VIII - MARKET SURVEILLANCE AND SAFEGUARD PROCEDURES

Q. Will MS contact points hold details of market surveillance authorities? NBs would find such a list useful.

Article 56 - Procedure to deal at national level with construction products presenting a risk

Article 57 - Union safeguard procedure

Article 58 - Complying construction products which nevertheless present a risk to health and safety

Article 59 - Formal non-compliance

CHAPTER IX - FINAL PROVISIONS

Article 60 - Delegated acts

Q. Will delegated acts only be allowed once the CPR is fully in force? It was stated at SCC that there can be no delegated acts before 1 July 2013. Article 60 is one of the Articles that apply only from 1 July 2013 (see Article 68). Changes to the CPR will not therefore be possible before 1 July 2013.

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Article 61 - Exercise of the delegation

Article 62 - Revocation of the delegation

Article 63 - Objections to delegated acts

Article 64 - Committee

Article 65 - Repeal

Article 66 - Transitional provisions

Q. How long will the transitional period be? In some hENs (e.g. EN 1317-5) transitional arrangements for the use of historical data last for 3 years after the end of the co existence period (i.e. until 1st July 2016 if this approach was to be used). ETAs currently have an expiry date of 5 years from issue. Would a longer period be required for manufacturers to prepare and for NBs to carry out the work on complex construction products?

There appears to be no time limit to the transitional provisions in Article 66 points 1-3. A manufacturer should be able to base a DoP on a CPD certificate of conformity or declaration of conformity so long as the hEN and the certificate remain valid.

Q. In MSs that decided not to make CE Marking mandatory under the CPD, but where construction products have been placed on the MS market, will those products that remain on the market need to be affixed with the CE marking before 1 July 2013?

In principle the Regulation applies to individual items placed on the market, and so items already placed on the market before 1 July 2013 should not be affected. However, it could be difficult to distinguish between “old” and “new” products.

Article 67 - Reporting by the Commission

Article 68 - Entry into force

Q. Should not Annex V be in force now if NBs are to be notified to the CPR in advance of 1 July 2013?

Annex V has been published, so it is possible to determine whether a body can meet the requirements of Annex V without that annex being in force. The reason why Annex V is not in force is to prevent NBs from carrying out work to the CPR before it comes fully into force on 1 July 2013. NBs can carry on working to the CPD until 30 June 2013 as EC Certificates and applicable test reports in accordance with the CPD will be valid after this date in accordance with Article 66 on transition provisions.

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ANNEX I - BASIC REQUIREMENTS FOR CONSTRUCTION WORKS

ANNEX II - PROCEDURE FOR ADOPTING A EUROPEAN ASSESSMENT DOCUMENT

Q. Is the procedure to be elaborated upon? It is possible that SCC may provide further guidance on this procedure if it is considered necessary. In any case, the organisation of TABs is likely to set out more detailed procedures.

ANNEX III - DECLARATION OF PERFORMANCE

Q. Should the declaration of performance state that it has been drawn up under the CPR.


Q. As the DoP is to be in languages required by the member state where the product is made available (see Article 7 Point 4), there should be standard declarations of performance in each language. If so who is to provide these and where?

The CPR is published in all official languages and so these will contain translations of the template for the DoP.

Q. Number of declaration of performance: Will a standard format be established for the DoP number, with a format that stakeholders are unlikely to confuse with a relevant certificate number?(Commission Guidance Paper ‘D’ defines the format for notified body certificate numbers under the CPD as “nnnn-CPD-zzzz”, where “nnnn” is the identification number of the Notified Body and “zzzz” is the individual number given by the certification body. Inevitably, under the CPR this code will be changed to “nnnn-CPR-zzzz”.)Drafts of CEN’s proposed template for Annex ZAs included an example of a DoP number, 001CPR2013-07-14, which has a rather similar appearance to a certificate number and risks stakeholder confusion between the Certificate and Declaration of Performance.)

Question for the Commission, SCC or CEN.

Q. Point 7: Is a DoP under AVCP System 3 required to include the number(s) of the NB(s) that issued test/calculation reports?


Q. Point 8 Should not the DoPs under ETAs include the name and identification number of the NB and any certificate issued if testing and/or certification tasks were undertaken by a NB, in line with Point 7 for DoPs under hENs?

It seems appropriate that if a NB undertook certification tasks under an ETA, the DoP should give the name and number of the body, and the certificate number.

ANNEX IV - PRODUCT AREAS AND REQUIREMENTS FOR TABS

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Q. Table 1 does not take into account some construction products and new product areas that maybe developed due to innovation. Also, some products may fall between more than one product area. How are these issues to be resolved? By MSs and their NABs? Will a MS be able to designate other product areas as implied in Article 29(1)?

It is expected that the organization of TABs will resolve such problems.

ANNEX V - ASSESSMENT AND VERIFICATION OF CONSTANCY OF PERFORMANCE

Q. Point 1, all AVCP systems. Manufacturers or notified bodies are responsible for determining the product-type, but hENs written for the CPD refer instead to “initial type-testing”. Will any guidance be provided on how to determine the product-type in accordance with such standards until they are revised in line with the CPR?

Question for the Commission, SCC or CEN.

Q. Point 1.3(b) – opening line should read “the notified factory product control certification body……”. As bodies involved in the assessment and verification of constancy of performance are defined in Annex V - Point 2.

Yes, it appears to be a minor error in the text of the CPR, but it can be read as “notified factory product control certification body” to resolve any problems.

Q. Points 1.1, 1.2 and 1.4: Will all testing under AVCP Systems 1+, 1 and 3 need to be carried out by NBs?

Under AVCP Systems 1+ and 1, the notified product certification body is responsible for product sampling and testing, in accordance with the rules laid down in the technical specification, but the body may subcontract sampling and/or testing to other organizations.Under AVCP System 3, most tests are undertaken by the notified testing laboratory(ies) commissioned by the manufacturer, but a laboratory may subcontract individual tests.Subcontracting by NBs is established by GP ‘A’ under the CPD, and governed by Article 45 of the CPR. There is no substantial change between the requirements for subcontracting under GP ‘A’ of the CPD and Article 45 of the CPR. Also, some harmonised standards assign certain tests under System 3 to the manufacturer. This possibility is not stated in either the CPD or the CPR, but it is set out in GP ‘K’ for the CPD. It is not expected that the position will change under the CPR.

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Q. Point 1.4 (b): Under AVCP System 3, is there any requirement for the manufacturer to limit the number of NBs it contracts to undertake and report different tests or calculations on a product?(Under the CPD, for AoC System 3, GP ‘K’ section 4 clause (4) states: “… the tests to be carried out in respect of any one Essential Requirement are the responsibility of a notified test laboratory … . GP ‘K’ section 4.1.2 clause (4) is somewhat more restrictive and states: “…the tests regarding the same Essential Requirement must be carried out by the same laboratory …” . )(In practice If the number of laboratories is to be restricted, future guidance should recognize that In practice it must be the manufacturer’s responsibility to ensure that it he does not contract more than one laboratory to undertake testing for one Essential Requirement, and that the test samples supplied for all ITT testing are equivalent. This is because a laboratory may not be fully aware of how the test sample(s) were prepared, or how the manufacturer intends to use the its test report.) However Also, it is would be highly restrictive to require that the same notified test laboratory should undertake all of the tests regarding the same Essential Requirement, as some tests are highly very specialized, and few laboratories may be able to undertake all of the tests required for one Essential Requirement under some standards. It would be feasible for one Asking a “lead” laboratory to take responsibility for all of these tests, but that it is not notified to perform, and which will be undertaken by other laboratories, is probably unwise, at AVCP System 3 to require a as the “lead” laboratory to take responsibility for would not know how the test samples were prepared, and is unlikely to have expertise in the tests it is not notified to perform undertaken by other laboratories. But allowing the manufacturer to appoint more than one laboratory would leave the manufacturer to combine test reports into the “determination of the product-type”, and would not prevent a manufacturer from tailoring samples to perform well at specific tests.)


Q. Point 2 – No reference is made to inspection or calculation bodies. Does this mean NBs will no longer be able to be notified as these types of bodies? Similarly, will there be any special requirements for NBs that carry out calculation as part of their test laboratory status?

The CPD recognised inspection bodies, and GP ‘A’ enabled them to be notified, but also permitted sub-contracting to non-notified bodies. Under the CPR, bodies cannot be notified for inspections. The onus is on certification bodies to take responsibility for their subcontractors (Article 45).The CPD made no reference to calculation bodies. They should be considered to be included in the CPR as “a notified laboratory which … otherwise determines the characteristics or performance of materials or construction products”.

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Q. Point 2. (3) requires test laboratories to be notified. Switzerland is currently the only Mutual Recognition Agreement (MRA) state to have NBs to the CPD. Other MRA countries, such as Australia, Canada, Japan, New Zealand and United States do not have NBs to the CPD. Both Canada and New Zealand are known to export construction products to the EEA while Canada is known to carry out its own testing to hENs. Will countries with a MRA and PECA (Protocols to the Europe Agreements on Conformity Assessment and Acceptance of Industrial Products) with the Commission be required to have NBs in their countries if they are carrying out testing of construction products for export to the EEA? And similarly how about other countries exporting to the EEA who have no MRA (e.g. Croatia, Serbia)? Will all the countries affected need training and will the Commission be providing support? Do the MRA and other states need representation at SCC and GNB-CPD AG?

Any products exported to the EEA will need to be CE marked if required under the CPR, but this could be done with the intervention of any appropriate NB. A suitable MRA and PECA makes it possible for a local body to become notified for that work, but there is no requirement to have a local indigenous body, or use one if any exist.CPD TechSec believe that all countries with bodies notified under the CPD or CPR have the right to be represented on SCC, although as observers if they are not Member States of the EU. CPD TechSec believe that all countries with bodies notified under the CPD or CPR have the right to be represented on the GNB-CPD AG (and both non-EEA states, Turkey and Switzerland, currently exercise this right). Croatia is a candidate for membership of the EU, and exercises its right to attend SCC and the GNB-CPD AG as an observer on this basis. Being a country that exports construction products to the EEA does not, on its own, give any rights to representation on SCC or the GNB-CPD AG.It is for the Commission to decide how much, if any, training and support to provide both inside and outside of the EU.

Q. Point 2 - Will EC Certificates under the CPD become EU Certificates under the CPR? (Presumably EC = European Communities and EU = European Union).

It is expected that they will be “certificates of constancy of performance of the product” and “certificates of conformity of the factory production control”, as used in Annexes III and V.

Q. Point 2 - Will the Commission be preparing new example certificates for use by NBs? If not can the GNB-CPD prepare example certificates (in English) for NBs to follow? And is there a need for translated certificates in each of the MS languages for market surveillance reasons, and if so who has responsibility for producing these? It would seem unreasonable for a manufacturer or NB to produce these by itself for all MS languages. Would it be possible for the Commission to pay selected notified bodies to produce certificates in each required MS language?

The GNB considers that it is the most appropriate body to provide example certificates under the CPR, as it does under the CPD. The GNB will revise its example certificates to conform with the CPR.The CPD requires certificates to be in the official language or languages of the MS, but the CPR does not set a language requirement for certificates. In fact it is not thought to be common practice under the CPD to provide translations of certificates into all relevant languages unless a product is offered to a government-type body, such as a highway authority, which is likely to request a copy of any certificate and/or declaration of performance in its own language. Presumably proactive market surveillance could also demand certificates in local languages.As the certification body is responsible for its certificates, this responsibility will apply to any translations. The GNB-CPD has been asking its members to provide translations of its example CPD certificates in all official EU languages, but with limited success. The GNB proposes to request assistance or funding from the Commission towards providing translations of example CPR certificates into many languages.

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Q. Point 3 – Will there be any special procedures for horizontal notification? There will need to be a guideline or similar to ensure all NBs are assessed to the same requirements. How will this horizontal notification be shown on NANDO and on NB NANDO scopes? Under Article 48(2) 2nd para. the Commission is to receive a hard copy from each Notifying Authority as the NANDO-CPR website may not be able to display this information. If so is it possible for the Commission to create an Excel file with this information and add as a downloadable file to NANDO? The file could be updated regularly and simply. Manufacturers and NBs would then be able to find and contact a NB with horizontal notification quite quickly.

UK notes from 1st SCC-CPR meeting suggest that it will be a long time before NANDO is enhanced sufficiently to show horizontal notification effectively.The Commission is welcoming proposals from NBs on how horizontal notification can be implemented. CPD TechSec is co-ordinating the efforts of the horizontal sector groups, SH01 for the release of dangerous substances and SH02 for the three fire essential characteristics (reaction to fire, resistance to fire, external fire performance), and of the vertical sector groups SG04 (Circulation fixtures), SG06 (Doors and Windows) and SG09 (Glass) for noise reduction.The preferred approach is currently to notify to an individual or a range of supporting test methods for each essential characteristic, as recommended in a proposal from the relevant sector group. These supporting standards can then be assessed by the National Accreditation Body and encoded in NANDO-Input to enable Notifying Authorities to amend NANDO scopes of NBs. It is expected that there will be some variation in approach for each of the five essential characteristics.

MISCELLANEOUS

Q. Are EC Guidance Papers to be withdrawn? If so will they be reviewed to see if there is any guidance worth retaining? Are there any plans for new EC guidance paper to cover new issues or to clarify matters?

Our understanding is that the Commission is considering whether to withdraw the guidance.

Q. If the EC Guidance Papers are to be withdrawn will there be a Q&A paper or a webpage where NBs can go and find out the answers to the most common questions? If so will this be updated regularly?

The Commission is developing a Q&A page.

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