CEN/TR 16410:2012

SLOVENSKI STANDARD
01-januar-2013
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Construction products - Assessment of release of dangerous substances - Barriers to
use - Extension to CEN/TR 15855 Barriers to trade
Bauprodukte - Freisetzung von gefährlichen Stoffen - Anwendungsbarrieren
Produits de construction - Evaluation de l'émission de substances dangereuses -
Obstacles à l'emploi de ces produits
Ta slovenski standard je istoveten z: CEN/TR 16410:2012
ICS:
13.020.99 Drugi standardi v zvezi z Other standards related to
varstvom okolja environmental protection
91.010.10 Pravni vidiki Legal aspects
91.100.01 Gradbeni materiali na Construction materials in
splošno general
2003-01.Slovenski inštitut za standardizacijo. Razmnoževanje celote ali delov tega standarda ni dovoljeno.

TECHNICAL REPORT
CEN/TR 16410
RAPPORT TECHNIQUE
TECHNISCHER BERICHT
October 2012
ICS 91.010.10
English Version
Construction products - Assessment of release of dangerous
substances - Barriers to use - Extension to CEN/TR 15855
Barriers to trade
Produits de construction - Evaluation de l'émission de Bauprodukte - Bewertung der Freisetzung von gefährlichen
substances dangereuses - Barrières à l'utilisation - Stoffen - Nutzungsbarrieren - Erweiterung von CEN/TR
Extension du CEN/TR 15855 Barrières aux échanges 15855 zu Handelsbarrieren

This Technical Report was approved by CEN on 13 August 2012. It has been drawn up by the Technical Committee CEN/TC 351.

CEN members are the national standards bodies of Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia,
Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania,
Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and United
Kingdom.
EUROPEAN COMMITTEE FOR STANDARDIZATION
COMITÉ EUROPÉEN DE NORMALISATION

EUROPÄISCHES KOMITEE FÜR NORMUNG

Management Centre: Avenue Marnix 17, B-1000 Brussels
© 2012 CEN All rights of exploitation in any form and by any means reserved Ref. No. CEN/TR 16410:2012: E
worldwide for CEN national Members.

Contents
Foreword 3
Executive summary 4
1 Introduction 4
2 The Wider Perspective on Barriers to Trade 7
2.1 General 7
2.2 Examples of Non-Tariff Barriers 8
2.3 Barriers to trade within the European Union 9
2.4 Barriers to Trade – A Question of Safety? 10
3 The State of the European Union Single Market 12
4 Barriers Created by National Legislative Approaches 14
4.1 The national approach to legislation – a comparison of three countries 14
4.2 National Building Regulations and the Effectiveness of the CPD 23
5 Controls on Market Legislation 24
5.1 Technical Standards and Regulations Directive 98/34 EC 24
5.2 The Official Perspective 24
5.3 Does TRIS (and the 98/34 procedure) Work? 25
6 Barriers Resulting from Policy Instruments or Schemes 25
6.1 Public procurement 25
6.2 Sustainable Timber 27
7 Examples of the restrictions on use of materials 28
7.1 Barriers to use 28
7.2 UK – Collateral Warranties and deleterious Materials clauses 28
7.3 Green product or building labelling – The Eco-label 32
7.4 Dutch Environmental Certification Label 34
7.5 European Schemes for labelling of emissions to air 34
7.6 Green Building labelling schemes 37
7.7 Swedish BASTA (online) Scheme 37
8 The Industry Perspective 38
9 Can Standardisation Eliminate Barriers to Use? 38
10 Conclusions 39
Annex A (informative) German System for derivation of OELs 41
Annex B (informative) The World Trade Organisation 43
B.1 General information about the Technical Barriers to Trade (TBT) Agreement 43
B.2 National Activities to Support the TBT Agreement 43
B.3 Other information sources 43
Annex C (informative) European Commission Process for Setting Green Public Procurement (GPP)
Criteria 44
Bibliography 45
Foreword
This document (CEN/TR 16410:2012) has been prepared by Technical Committee CEN/TC 351 “Construction
products - Assessment of release of dangerous substances”, the secretariat of which is held by NEN.
Attention is drawn to the possibility that some of the elements of this document may be the subject of patent
rights. CEN [and/or CENELEC] shall not be held responsible for identifying any or all such patent rights.
Executive summary
CEN Technical Report 15855 examined the concept and realities of barriers to trade in construction products
within the European Union insofar as the products were affected by regulations relating to Essential
Requirement 3 (ER3) of the Construction Products Directive (89/106/EEC).
Within the body of CEN/TR 15855, the topic of barriers to use was investigated briefly and it was concluded
that these could be at least as significant as technical barriers to trade. The European Commission, in noting
these findings, asked that the report be extended to further examine the reasons for and scope of barriers to
use of construction products in the European Union (insofar as they related to ER3) of the Construction
Products Directive (CPD) [2].
This report further examines the types of barriers and the fundamental reasons behind their creation and
continued existence, such as the laudable aim to protect health.
Like the earlier report, this report considers barriers resulting from legislation and examines the approaches to
national legislation in three countries: the UK, Germany and The Netherlands. The latter two were considered
especially because they appeared to have the largest number of regulatory requirements or were cited by
respondents to the original report as being the cause of barriers to use of construction products.
This report also examines European and national initiatives such as Green Public Procurement and a number
of voluntary schemes, especially related to health and safety or environmental labelling issues – particularly
product or building labelling and, of course, eco-labelling schemes which are far from harmonised around the
world.
Specific examples of barriers to use are reviewed in detail including the use of “collateral warranties” in the
United Kingdom, green product labelling, the Dutch Environmental Certification label and indoor air emission
labelling schemes such as AgBB in Germany and AFSSET in France.
An industry perspective, previously identified in TR 15855, is also presented. From this point of view, not all
barriers to use are seen in a negative way, but this is highly dependent upon the industry concerned and their
scale of operations.
The conclusion of the report is that standardisation can only do so much to help provide the framework for
prevention of barriers to use of construction products; and the harmonised test methods of CEN/TC 351 will
provide some of that framework insofar as the barriers are of a technical nature and regulatory.
Standardisation can provide tools but cannot prevent or eliminate voluntary measures or controls that create
barriers to use.
1 Introduction
“Barriers to trade” is an emotive subject that polarises opinion amongst regulators and manufacturers alike.
For regulators, there are those who believe in setting minimum performance targets but allowing
manufacturers the freedom on how these are achieved, and those who believe that the level of control,
through legislation, should be very high and prescriptive to afford maximum protection to health and the
environment.
Amongst manufacturing industry, views are influenced partly by national custom (and legislative background)
and also by size of the enterprise – the latter, however, is not a consistent measure. Broadly, there are three
groups from manufacturing whose opinions can be summarised as follows:
 those who believe that almost every piece of national legislation, and every measure and control applied
to products is a barrier to them trading that product on the market;
 those who take their responsibilities for meeting legislation very seriously and fulfil their obligations under
the legislation as the law demands or as they perceive society or the market demands for their product;
 those who support strong controls, high standards and levels of certification, not just to fulfil their
responsibilities as they understand them but also to protect the product image (and performance) and to
protect the market from cheap imports or cost cutting.
The original report on Barriers to Trade, prepared in response to Mandate M/366 given to CEN/TC 351 by the
European Commission, and published as CEN/TR 15855 [1], identified that some of these barriers were truly
technical or legal “barriers to trade” which can usually be overcome or minimised by technical harmonisation
work. However, others were found to be quite legally in place, sometimes voluntary, but nonetheless still seen
as a barrier to the use of certain products in a free market place.
This report is a further examination of these concepts in more detail and an attempt to identify the reasons
behind the presence of barriers to use and to present specific examples in more detail. The information has
also been provided at the request of the European Commission to support their activities in this field and to
examine whether the standardisation work in CEN/TC 351 can influence or eliminate barriers to use for
construction products in the field of dangerous substances (ER3 of the Construction Products Directive [2]).
CEN Technical Report 15855 [1] examined the concept and realities of barriers to trade in construction
products within the European Union insofar as the products were affected by regulations relating to Essential
Requirement 3 (ER3) of the Construction Products Directive (89/106/EEC) [2]. ER3 relates to hygiene, health
and environmental requirements for the “works” and how they may affect the choice and use of products.
The original Technical Report 15855, commissioned under Mandate M/366 from the European Commission to
CEN/TC 351, was required to establish the degree to which “technical barriers to trade” already existed and, if
they did, whether the harmonisation process under Mandate M/366 could, or would, eliminate any or all of the
observed or perceived technical barriers.
CEN/TR 15855 stated that:
“Although the principle emphasis of the Mandate and the report was ‘technical’ barriers to trade, discussions
outside of the TG meetings with the Commission DG Enterprise, established that the Commission was
interested in all barriers to trade including barriers to “use” although it was acknowledged that such barriers
could be beyond the scope of CEN harmonisation activities. The Commission also confirmed that the
presence of a single national requirement and test method was sufficient grounds for commencing
harmonisation procedures since the presence of an existing requirement and test method may create a future
barrier to trade scenario – see later.
“As well as establishing the presence of any true ‘technical’ barriers to trade, TG1 therefore also considered
that other barriers to trade may exist which may not be under the usual definition of a ‘technical barrier’. In
particular, TG1 thought it necessary to investigate indirect technical requirements or barriers to trade that may
impact construction products one way or another, especially if due to de facto regulations or national
requirements. It was therefore considered relevant and useful to include in the report some examples of the
various types of barrier to trade where they may directly impact the ‘use’ of a construction product in one or
more Member States compared to the rest of Europe.”
It also referred to the differences between Barriers to Trade (BTT) and Barriers to Use (BTU):
“Initial concepts of the different types of barriers in the market place were considered and some examples
were provided to consultees to assist in their understanding of the issues and hence their responses. These
included voluntary market measures and specific national requirements, whether notified regulations or
recommendations. Market measures can become de-facto barriers.
“Opinions on what constitutes a barrier to trade vary but national regulatory ‘barriers’ can be created within the
European legal framework. Some regulations, such as the new REACH Regulation for health protection,
provide common European levels of protection but the CPD defines Essential Requirements that are open to
interpretation by Member States. Under Article 95 of the EU Treaty, the grounds for derogation from a
harmonised level are strict, but greater freedom is afforded to countries when they implement non-harmonised
levels of protection for health or environment in construction works. According to case law in the European
Court of Justice, a measure should be proportional and reasonable, and it can take precedence over other
regulations such as Public Procurement. A Member State may have a legitimate health and safety
requirement based upon their perception of risk which is different to that usually accepted in most other
Member States. The Member State then notifies this proposed regulation and provided no justifiable and
sustained objections are received from other Member States the regulation is adopted and then cannot be
regarded as a legal barrier to trade, although it can create a distortion in the market place and possibly result
in the creation of different products for each market area. It may also result in different certification
requirements for a similar end use in different countries.
“The Notification process (98/34 procedure) is seen as being complex for industry and in many cases is not
understood. Failure of industry to ask their member state authority to raise objections (either due to lack of
knowledge of the proposal, or due to lack of understanding) can result in ‘approval’ of the new regulation.
When in force the industry only then sees the problem and encounters barriers to the use of their products.
Even if objec
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