CEN/TR 15855:2009

SIST-TP CEN/TR 15855
SLOVENSKI
STANDARD
november 2009
Gradbeni proizvodi – Ocenjevanje sproščanja nevarnih snovi – Ovire pri
trgovanju
Construction products – Assessment of release of dangerous substances –
Barriers to trade
Produits de construction – Evaluation de l'émission de substances dangereuses –
Barrières aux échanges
Bewertung der Freisetzung von gefährlichen Substanzen aus Bauprodukten –
Handelsbarrieren
Referenčna oznaka
ICS 91.100.01 SIST-TP CEN/TR 15855:2009 ((sl)en)

Nadaljevanje na straneh II in od 1 do 25

© 2009-11. Slovenski inštitut za standardizacijo. Razmnoževanje celote ali delov tega standarda ni dovoljeno.

SIST-TP CEN/TR 15855 : 2009
NACIONALNI UVOD
Tehnično poročilo SIST-TP CEN/TR 15855 ((sl)en), Gradbeni proizvodi – Ocenjevanje sproščanja
nevarnih snovi – Ovire pri trgovanju, 2009, ima status slovenskega tehničnega poročila in je z metodo
ponatisa z nacionalnim dodatkom privzeto evropsko tehnično poročilo CEN/TR 15855:2009.
NACIONALNI PREDGOVOR
Evropsko tehnično poročilo CEN/TR 15855:2009 je pripravil tehnični odbor Evropskega komiteja za
standardizacijo CEN/TC 351 Gradbeni proizvodi – Ocenjevanje sproščanja nevarnih snovi.
Pripravo tega dokumenta sta Evropska komisija in Evropsko združenje za prosto trgovino poverila
CEN. Ta evropski dokument ustreza bistvenim zahtevam direktiv EU.
Slovensko tehnično poročilo SIST-TP CEN/TR 15855:2009 je dne 1. oktobra 2009 po pooblastilu
Strokovnega sveta SIST za splošno področje sprejel tehnični odbor SIST/TC NES Nevarne snovi.
NACIONALNI DODATEK
Proizvajalci gradbenih proizvodov lahko uporabljajo samo surovine, ki ne vsebujejo prepovedanih
snovi, za omejene snovi pa morajo upoštevati omejitve iz Priloge XVII k Uredbi (ES) št. 1907/2006
Evropskega parlamenta in Sveta o registraciji, evalvaciji, avtorizaciji in omejevanju kemikalij (REACH).
Člen 67 Uredbe (ES) št. 1907/2006 določa, da se snovi, zmesi ali izdelki ne smejo proizvajati, dajati v
promet ali uporabljati, če ne izpolnjujejo pogojev iz kakršne koli omejitve zanje iz Priloge XVII. Ta
uredba je v celoti zavezujoča in se neposredno uporablja v vseh državah članicah EU.
Proizvajalci gradbenih proizvodov morajo spremljati spremembe in dopolnitve Uredbe (ES)
št. 1907/2006 Evropskega parlamenta in Sveta o registraciji, evalvaciji, avtorizaciji in omejevanju
kemikalij (REACH). Prva sprememba Priloge XVII k Uredbi (ES) št. 1907/2006 je 1. junija 2009
razveljavila in nadomestila Direktivo 76/769/EGS o približevanju zakonov in drugih predpisov držav
članic v zvezi z omejitvami pri trženju in uporabi nekaterih nevarnih snovi in pripravkov.
Za zaščito gradbenih proizvodov se lahko uporabljajo le priglašeni oziroma avtorizirani ali registrirani
biocidni proizvodi na podlagi Zakona o biocidnih proizvodih (ZBioP) (Uradni list RS, št. 61/06).
Več informacij dobite na spletni strani Urada Republike Slovenije za kemikalije: http://www.uk.gov.si/.
OPOMBI
– Povsod, kjer se v besedilu uporablja izraz “evropsko tehnično poročilo”, v SIST-TP CEN/TR
15855:2009 to pomeni “slovensko tehnično poročilo”.
– Nacionalni uvod in nacionalni predgovor nista sestavni del evropskega tehničnega poročila.

II
TECHNICAL REPORT
CEN/TR 15855
RAPPORT TECHNIQUE
TECHNISCHER BERICHT
March 2009
ICS 91.100.01
English Version
Construction products - Assessment of release of dangerous
substances - Barriers to trade
Produits de construction - Evaluation de l'émission de Bewertung der Freisetzung von gefährlichen Substanzen
substances dangereuses - Barrières aux échanges aus Bauprodukten - Handelsbarrieren
This Technical Report was approved by CEN on 3 February 2009. It has been drawn up by the Technical Committee CEN/TC 351.
CEN members are the national standards bodies of Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal,
Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland and United Kingdom.
EUROPEAN COMMITTEE FOR STANDARDIZATION
COMITÉ EUROPÉEN DE NORMALISATION
EUROPÄISCHES KOMITEE FÜR NORMUNG
Management Centre: Avenue Marnix 17, B-1000 Brussels
© 2009 CEN All rights of exploitation in any form and by any means reserved Ref. No. CEN/TR 15855:2009: E
worldwide for CEN national Members.

Contents Page
Foreword .3
1 Introduction and Background to the Technical Report .4
2 Implementation of this Work Item .5
2.1 Administrative Procedures and Objectives .5
2.1.1 Concepts and Scope of Barriers to Trade .5
2.1.2 Barriers to Trade or Barriers to Use .6
2.2 Questions to Consultees .7
3 Industry Groups .7
4 Status of the Industry Consultations and Interviews .8
5 Results of Surveys.8
5.1 Perceptions of Barriers to Trade .8
5.2 Barriers to Trade or Use . 10
5.2.1 General . 10
5.2.2 Current Regulations – two or more Member States . 11
5.2.3 Current Regulations – single Member State . 11
5.2.4 Barriers to Use . 11
5.2.5 Summary and Definitions of Barriers . 12
5.3 Examples of Barriers . 12
5.3.1 General comments. 12
5.3.2 Specific product Group Issues . 14
6 How Standardisation can remove barriers to trade . 19
7 Conclusions . 20
7.1 Barriers to Trade . 20
7.2 Barriers to Use . 20
7.3 Limitations . 20
8 Recommendations . 20
Annex A (informative) Lists of Associations, contact details and product specifications . 22

Foreword
This document (CEN/TR 15855:2009) 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.
This document has been prepared under a mandate given to CEN by the European Commission and the
European Free Trade Association, and supports essential requirements of EU Directive(s).
This Technical Report is prepared by CEN/TC 351 "Construction products – Assessment of release of
dangerous substances" and indicates the barriers to trade as identified by CEN product Technical Committees
in relation with emission of regulated dangerous substances into indoor air, surface water, groundwater or soil.
CEN was asked in Mandate M/366 to describe if and how these barriers to trade can be resolved or prevented
by the set of standards included in the work programme.
This report looks first at existing technical barriers, but also examines whether potential technical barriers exist
and provides examples of these barriers.
However the market sometimes makes little or no distinction between a technical barrier to trade (or even a
potential barrier to trade) and the existence of barriers to the use of products that are legally placed on the
market having already met the technical standard requirements. Manufacturers are disturbed that they can
comply with the requirements of the CPD and any harmonised standards, but still encounter difficulties in
having their products specified and used, or even where they have to complete additional hurdles beyond
those required in the harmonised technical specification. As the subject came up many times, this report
contains numerous references to such “barriers to use”, but this subject will be dealt with separately in greater
detail in another report since it is not within the scope of CEN Standardisation to remove barriers to use.
Similarly, there is no attempt in this report to examine the question of trade barriers resulting from any other
market mechanisms introduced at either EU level or national level, which results in or from fiscal penalties,
quotas or international trade agreements since these are beyond the scope of technical harmonisation.
This Technical Report is expected to be used by the Commission to address the issue of barriers to trade with
Member States and to discuss with regulators their requirements to prevent harmful effects as stated in
Essential Requirement 3 of the CPD as described in the main body of the mandate M/366.
1 Introduction and Background to the Technical Report
Mandate M/366 of the European Commission to CEN, titled: “DEVELOPMENT OF HORIZONTAL
STANDARDISED ASSESSMENT METHODS FOR HARMONISED APPROACHES RELATING TO
DANGEROUS SUBSTANCES UNDER THE CONSTRUCTION PRODUCTS DIRECTIVE (CPD), emission to
indoor air, soil, surface water and ground water”, which created CEN/TC 351, required a number of technical
reports (TRs) to assist in the process of standardisation. The first of these TRs was to establish the extent of
or presence of technical barriers to trade resulting from requirements under Essential Requirement 3 (ER3),
as perceived or experienced by manufacturers of construction products, demanded by EU Member States.
Since the CPD (Council Directive 89/106/EEC of December 21, 1988 concerning construction products) is
aiming to lift barriers to trade, there would be no point, in theory, in developing standards in CEN/TC 351 for
the purpose of ER3 if no technical barriers to trade exist.
However, the “Grounds” for this Mandate, given by the Commission, state:
‘… this standardisation mandate refers to products for which the two following conditions are fulfilled:
a) the products are or risk to be subject to technical barriers to trade arising from regulated dangerous
substances;
b) the characteristics of the products regarding regulated dangerous substances influence the satisfaction by
the construction works, in which they are to be incorporated in a permanent manner, of the essential
requirements as laid down in article 3 of the CPD and set out in terms of objectives with regard to hygiene,
health and the environment, in Annex 1 of the CPD. These works are subject to legislative, regulatory or
administrative regulations of Member States covering such essential requirements specifically in the field
of dangerous substances'.
Further, in Clause 7 of the “Execution of the Mandate” referring to the work programme of CEN, it states:
‘It [the work programme] shall identify and cover all products or product families for which the three following
conditions are fulfilled:
 European or national regulations are limiting or banning the emission or content (see IV.8) of dangerous
substances;
 Existing or potential barriers to trade have been identified;
 Measurement/test methods for these specified regulated dangerous substances have already been
developed and are used on a national or EU level.
Considering point (a) in the “Grounds” for the Mandate it is stated that products “at risk” from technical barriers
to trade are equally important to existing barriers to trade, and also in the above Clause 7, Execution of the
Mandate, the second dash refers to “potential barriers” as well as established barriers. This makes the scope
of the work wider than simply identifying existing technical barriers.
The Mandate also specifically refers to ‘technical’ barriers to trade, and CEN is especially asked to consider in
the Work Package the following TR:
“Work Package 1: technical reports: procedures for testing and testing schemes
1. Technical Report on examples of existing and potential barriers to trade in relation with emission of
regulated dangerous substances into indoor air, surface water, ground water or soil.

Any other type of barrier to trade falls within Articles 30/36 of the Treaty and must be directly eliminated by the
Member States.
This Technical Report (TR) shall indicate the barriers to trade as identified by the product Technical
Committees in relation with emission of regulated dangerous substances in indoor air, surface water,
groundwater or soil. CEN is asked to describe if and how these barriers to trade can be resolved or prevented
by the set of standards included in the work programme. This TR will be used by the Commission to address
the issue of barriers to trade with the Member States and to discuss with regulators their requirements to
prevent harmful effects as stated in ER3 of the CPD as described in the main body of the mandate.”
Therefore, this report is intended to look first at existing technical barriers, but also to establish whether
potential technical barriers exist and to provide examples of such barriers.
However the market sometimes makes little or no distinction between a technical barrier to trade (or even a
potential barrier to trade) and the existence of barriers to the use of products that are legally placed on the
market having already met the technical standard requirements. Manufacturers are disturbed that they can
comply with the requirements of the CPD and any harmonised standards, but still encounter difficulties in
having their products specified and used, or even where they have to complete additional hurdles beyond
those demanded in the harmonised technical specification. As the subject came up many times, this report
contains numerous references to such “barriers to use”, but this subject will be dealt with separately, and in
greater detail, in another report since it is not within the scope of CEN Standardisation to remove barriers to
use.
Similarly, there is no attempt in this report to examine the question of trade barriers resulting from any other
market mechanism introduced at either EU level or national level, which results in or from fiscal penalties,
quotas or international trade agreements since these are beyond the scope of technical harmonisation.
2 Implementation of this Work Item
2.1 Administrative Procedures and Objectives
2.1.1 General
At its inaugural meeting in Malta in April 2006, the members of CEN and CEN/TC 351 agreed to create a
number of Task Groups, including Task Group 1 (TG 1). TG 1 was to respond to the TR on Barriers to Trade.
A small core group of members, in consultation with a larger ‘consultation’ group created a proposal to tender
for the creation of the TR1. The tender called for, inter-alia,
‘a preliminary report to provide information on technical barriers to trade in construction products, as EU
producers exporting products to other Member States might encounter them. The information should
enable decisions on the necessity for agreement on harmonised test methods. Any difficulty of a producer
exporting his construction products to another Member State because of differences in regulation
regarding the environmental aspects of the product should be regarded as a barrier to trade.’
It was agreed that at least 10 European trade associations would be interviewed on this topic with preliminary
information and questionnaires being sent in advance.
2.1.2 Concepts and Scope of Barriers to Trade
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, TG 1 therefore also considered
that other barriers to trade might exist which may not be under the usual definition of a ‘technical barrier’. In
particular, TG 1 thought it necessary to investigate indirect technical requirements or barriers to trade that
might have an impact on 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.
2.1.3 Barriers to Trade or Barriers to Use
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 objections are registered, they may not be considered sufficient to stop the implementation.
Alternatively, it has also been suggested that a similar type of Member State requirement, purported to be
needed for health and safety reasons, and based upon a stated demand for a higher level of protection than
that generally accepted in the EU, is actually a market protection measure to make the sale of cheaper
imported products more difficult. Such measures can be very difficult to identify and the health or
environmental grounds for requiring levels of performance higher than those adopted for CE Marking in other
countries may not be clear, but they would have the impact of raising the market price for affected products in
the Member State by restricting free trade or use of products carrying CE Marking. This type of barrier has
been justified in certain markets as a necessity to ensure that sufficiently high levels of quality are achieved.
This questions a possible conflict between the meeting of CE Marking requirements – conformity with ER3
and minimum national legislation – and what is perceived by others as a ‘minimum practicable level of quality’.
The latter implies that unless a certain (higher) quality standard, or a certain level of conformity assessment
(including third party factory control), is achieved, then long term product performance or safety will not be
guaranteed. However, this still effectively constitutes a barrier to trade.
Within the scope of the mandate of CEN/TC 351, it would not have been possible to attempt to quantify the
scale and impact of any measures such as the above, but it was felt that these issues could be explored in
looking at consultees’ perceptions about market measures. This, it was hoped, would give examples of the
concerns, which may need to be addressed elsewhere.

Note: This explanation is not universally accepted by Member States. An alternative opinion is that although Member
States may be tempted to argue for restrictions allegedly based on health or environmental grounds to protect their home
industry from imports, but such measures could also make it more difficult for the home industry to export their products
abroad. Therefore, it is argued that disguised restrictions cannot generally be regarded as an attractive policy instrument.
2.2 Questions to Consultees
To establish the scale of standardisation work in the product area concerned, consultees were asked to list
the presence of applicable harmonised or European test methods applicable. Non-harmonised methods were
also reviewed.
From the presence or otherwise of harmonised product standards and/or test methods, consultees were
asked to consider the existence of technical barriers to trade, either through the existence of multiple test
methods (and hence multiple testing for the same product/application), or by lack of recognition of existing
European or national test methods in a specific Member State, or by the demand to use specified nominated
test laboratories to achieve certification for use for their product in that market.
Consultees were also asked to consider whether any de-facto regulations or market restrictions affected the
sale or use of their products in one or more countries. Such de-facto regulations or market restrictions could
be due to national worker protection requirements affecting the way in which a product may be used, or could
be due to the national market demand for compliance with ‘voluntary marking’, quality schemes or certification
marks leading to a perceived de-facto regulatory requirement. In such cases, there is no legal or technical
restriction on a product which carries CE Marking but it becomes “normal” that only products carrying a certain
additional mark (perhaps indicating higher or local quality standards) will end up being the only ones specified
or requested by the market place.
3 Industry Groups
The following industry groups, selected by virtue of their interest in the work of CEN/TC 351, their product
ranges and diversity, and their presence in European standardisation work, were contacted by mail and
telephone to arrange their availability for interviews and/or written feedback on the issues of barriers to trade
as required by TG 1 and the Mandate:
 BIBM – pre-cast concrete;
 BING – polyurethane foam;
 CEI-Bois – wood;
 CEMBUREAU – cement;
 CERAME-UNIE – ceramic industries;
 EAACA – aerated concrete;
 EFCC – construction chemicals;
 ERMCO – ready mixed concrete;
 EUMEPS – expanded polystyrene;
 EURIMA – mineral wool;
 EUROFER – iron and steel;
 EUROGYPSUM – gypsum;
 GEPVP – flat glass;
 TEPPFA – plastic pipes;
 UEPG – aggregates.
Other industry groups who became aware of the consultation process asked for specific information on their
products to be included. These were:
 Euratex – flooring products;
 VIB – Association of Industrial Construction Raw Materials;
 EAA – European Aluminium Association;
 Pittsburgh Corning – cellular glass insulation manufacturers.
Furthermore, national trade associations from Switzerland and The Netherlands representing bricks and
cement products respectively submitted comments.
Full details of all contacts are included in Annex 1.
4 Status of the Industry Consultations and Interviews
Considerable difficulty was encountered in getting responses to the requests for interviews and/or completed
answers to the questions; the complexity of the subject and the short consultation time often being cited as a
significant problem. Some groups requested a 3 to 6 month delay to consult within their membership and
formulate responses through committees or product CEN/TCs. This was made worse by the fact that some
product CEN/TCs only meet in plenary session every 12 to 18 months.
Subsequent telephone discussions and meetings with associations elaborated the feeling that barriers to trade
appear minimal in areas where harmonised specifications exist, but in product areas where harmonisation is
still incomplete, or only starting, the existence of national standards and test methods does cause problems.
Despite this latter point, the status of harmonisation activities in CEN was not actually identified as the
principle area of concern.
In terms of this current survey, many European trade associations are not finding any real ‘technical’ barriers
to trade under the requirements of ER3, but rather find ‘barriers to use’. Hence, some associations felt unable
to offer significant contributions to the work of TG 1.
To date only three of the original trade associations selected have not provided formal responses. This brings
the total number of replies within the original target of “not less than 10”. Six further indirect responses have
also been received from national or European associations, or from companies, who were not part of the initial
consultation, but who felt that they had concerns or comments to raise. These have been added to the list of
consultees in Annex 1A.
All written submissions have been followed up where necessary for clarification.
5 Results of Surveys
5.1 Perceptions of Barriers to Trade
The comments raised in this section are derived from, or constitute, actual remarks from some industry groups.
They are individual's or industry's perceptions and do not necessarily reflect the situation in all Member States,
nor the views of the Rapporteur, TG 1 members or CEN/TC 351.
It was interesting to note that, during discussion, some barriers to trade were identified but these technical
issues were not resulting from health and environmental legislation but from other Essential Requirements
such as energy economy or strength requirements. Hence, consultees were often aware of the concept and
presence of barriers to trade but by far the largest single response was that for ER3 there were very few real
‘technical’ barriers to trade that could be cited.
The overall perception was that, with the exception of a few countries, product technical requirements and
associated test methods in technical specification that related to ER3 were limited. For harmonised technical
specifications, the majority seem already to refer to the harmonised Annex ZA as agreed by the Commission
and CEN as an interim measure. Furthermore, many national regulations do not call up specific product
requirements but use regulation or building codes that set performance standards for the whole building, not
the product, (one exception being the Dutch Building Materials Decree, BMD). A particularly good example of
this is radioactivity (or radon) where national regulations often set performance targets, which need to be met
wherever the building may be constructed. This allows for variations in the natural ground emissions of
radiation in areas with (for example) volcanic rock substrata, and the resultant building techniques to control
possible emissions.
This fundamental issue is also reflected in the Commission database of Regulated Dangerous Substances,
which, although very substantial, contains substances listed mainly by only a small number of Member States
(the majority from only two, Germany and the Netherlands). Other Member States, like the UK, legislate
mainly on the basis of performance of the building, rather than what goes into the building.
Another general perception was that many of the current differences in market requirements were already
accommodated by manufacturers who had become accustomed to tailoring their products and testing strategy
for the different European markets in which they operated. This was demonstrated by a certain level of apathy
to the questionnaire and whether barriers existed at all. However, it was also acknowledged that the removal
of restrictive practices would make life easier and possibly improve competition.
Although the CPD, and much national regulation on building codes, relates to construction “works” – that is
buildings and other construction elements – the works will only meet the Regulations when the products
incorporated into the works meet certain minimum standards. Harmonised product specifications in CEN are
derived from the requirements set out in national regulations and codes.
German and Dutch regulations and building codes seemed to present the biggest cause for complaint. One
respondent stated, “A barrier to trade is anything requested by the German or Dutch authorities”. The most
commonly cited problem was the demand in (mainly in Germany and The Netherlands) to have testing carried
out at specified laboratories before certification for use was granted. These tests had to be in addition to tests
carried out for CE Marking and had to use national test methods, whether the methods were derived from
harmonised European methods or not. There is also a requirement for attestation of conformity above that
usually prescribed for the product.
A further issue was raised by several correspondents, that the publication of the European database on
regulated dangerous substances may, in itself, stimulate the creation of new barriers to trade. Seeing the
proliferation of substances and associated requirements could make national regulators openly question
whether they too should be regulating such substances if they are considered dangerous in another Member
State.
Concerns also varied according to the status of other research activities and regulatory development,
including the introduction of REACH and research into indoor air at the ECB JRC, which is also Commission
(DG Environment) funded. An Austrian producer summed up the situation regarding product for which
harmonised technical specifications are still outstanding by saying:
“[What] we fear and we should be aware of is:

This database with Legislation on substances in construction products can be found at
http://europa.eu.int/comm/enterprise/construction/internal/dangsub/dangmain_en.htm but at the moment it is still
incomplete and a fuller version is only available to registered users on CIRCA. The relevant list of substances currently
being examined as priority by CEN/TC 351 is given in CEN/TC 351 Document N 0054.
The laboratories may be specific identified national or private laboratories in the country of end use (thus refusing to
accept mutual recognition procedures).
 That the bureaucracy for the precasters [precast concrete] will increase (and not get removed);
 Substances which exist in our "normal" environment will have to be tested in precast concrete elements;
 Unnecessary tests will have to be done;
 The costs for testing will increase;
 That concrete will be "tested to death" while other construction products (like timber) can do what they
like”.
This raises an emotive level of concern that there is, or may be, at least a perceived lack of level playing field
regarding the treatment of some substances (products) in national legislation or as an indirect impact of new
EU Regulation.
Part of the problem is the consultation process on new proposals. Some respondents expressed concern that
it was difficult to influence new regulatory proposals. The European Commission carried out a survey of SMEs
in 2004, which showed that, although results vary due to differing consultative procedures in the 25 Member
States, consultations had significantly improved in recent years but that the level of business involvement into
law and policy making differs from country to country and is relatively weak in some members. The main issue
that business organisations faced during the consultation process was not enough time to prepare a
contribution, not enough human resources, and not enough technical expertise, with several of the new
member states less satisfied than the EU 15.
Furthermore, UNICE, in its 2004 report “It’s the Internal Market, stupid! A company survey on trade barriers in
the European Union”, reported that “Overall, 65 of the 200 companies felt that the Internal Market had led to
more regulation, due to detailed documentation requirements, national requirements remaining and increasing
in parallel with EU regulations, different interpretation of regulation and new EU regulation in areas not
previously regulated (e.g. environment).” (Source: UNICE 2004).
Since health and environmental protection legislation is included within the responsibilities of Member States
and has, so far, been very limited in the scope of technical harmonization processes, there has been
considerable opportunity for the creation of barriers through national legislation.
5.2 Barriers to Trade or Use
5.2.1 General
According to the OECD (Organisation for Economic Co-operation and Development), “Technical barriers to
trade refer to technical regulations, minimum standards and certification systems for health, safety and
environmental protection, and to enhance the availability of information about products, which may result in
the erection of technical barriers to trade (TBTs).” It thus implies that any technical specification, regulation,
limit value, or certification scheme can potentially lead to barriers to trade. This is a very general statement
rather than a specific “definition” which could be applied to the technical barriers to trade resulting from
Essential Requirement 3 of the CPD.
Construction products fall under the CPD, which deals with compliance of products with the Essential
Requirements (ER) at the moment the product is first ‘placed on the market’. Compliance with the Essential
Requirements allows products to be legally sold without further restrictions, but this does not say that products
will actually be used. So, in such circumstances, where a producer believes his CE Marked product may not
be ‘used’, he will not export to that market if he does not want to incur the additional costs (e.g. for
manufacture or test or compliance certification). CE Marking is a conformity mark with the CPD and not a
quality mark. The easiest way to demonstrate compliance with the ERs is to test against a harmonized

European Commission (2005), Consultation with Stakeholders in the shaping of National and Regional Policies
Affecting Small Business: Final Report of the Experts Group. Brussels, p.5-6.
technical specification and to affix CE Marking to the product (or packaging). This removes the need for
further checks by market surveillance authorities and should constitute an open European market for the
products. But in some markets, and for some types of products, it does not enable the product to be used in
any particular application without obtaining additional application approvals or marks, such as national or
private quality marks or compliance with insurance certificates (for example, it is considered imperative by UK
builders that thermal insulation for use in masonry cavity walls has an Agrément Certificate, and, in other
areas there is a growing demand for environmental certification or environmental profiles). These are often
seen as barriers to ‘use’ rather than a technical barrier to trade.
Only in the case of ‘public procurement’ was CE Marking alone once considered sufficient. Although this is still
generally true, case law in the European Courts has established that member states can argue for health or
environmental protection to allow further demands over and above the CE Marking.
A subject of considerable debate in some countries prior to the commencement of the CEN/TC 351 work was
whether or not there were any technical barriers to trade in construction products, and whether a technical
barrier to trade could only exist where there were two or more regulations and/or associated test methods for
the same requirement (thus possibly requiring products to be tested more than once to be sold anywhere in
the EU). This had implications as to whether there was, indeed, a harmonisation process for CEN/TC 351 to
complete. But, regardless of this, as stated in the preamble to this report, the European Commission had also
indicated that it was interested in all forms of barriers and whether a single requirement constituted a barrier to
trade (or potential barrier).
This report has thus looked at the scenarios of both two or more requirements and the presence of only a
single requirement and the implications of each for the work of CEN/TC 351, and provides examples of each.
5.2.2 Current Regulations – two or more Member States
A technical barrier to trade which results from the presence of several test methods for one product property is
the most relevant and usual example of a technical barrier to trade and therefore, by definition, requires the
presence of two or more requirements, each with their own test method. Hence, it could be assumed
that a technical barrier to trade only exists with two or more methods for the same product property. The
presence of two or more methods clearly also creates a requirement for harmonisation of the (several)
methods into a single European harmonised test specification which incorporates all of the appropriate levels
or classes of performance demanded by each of the original national methods or regulations. It has also been
argued that the actual creation of a new national requirement or regulations, does, in itself, create the
framework for creating new technical barriers.
5.2.3 Current Regulations – single Member State
It can, however, be seen that in some circumstances the presence of a single national test method for a given
property may eventually result in a real barrier to trade in the future, if, for example, another Member State
decides to legislate for the same property. This new regulation may have its own classes of performance or
limits based upon a different test method. So addressing the single existing national method and considering
the ‘harmonisation’ of that method to produce a new European Harmonised test could prevent the formation of
new barriers to trade in the future since the harmonised method should be adopted by all national regulators
in the future.
5.2.4 Barriers to Use
Many bodies cited examples where their products were manufactured to be in accordance with harmonised
CEN specifications, or in some cases with European standards, but to use the product in a certain country or
in a certain region additional tests or certification hurdles had to be overcome. Hence, although CE Marking
was available, and the product could be “placed on the market”, it did not offer any guarantee that it would be
specified or used. These barriers to use may be through the presence of national quality marks, “voluntary”
environmental marks or other measures, which are imposed or “requested” by the local competent authorities,
or other third parties.
A barrier to use may even be a system agreed within the industry to raise the overall performance standard for
a type of product where the industry did not feel that existing European levels of control (such as attestation of
conformity) were sufficient to ensure adequate safety in use against inferior products entering the market. Any
producer not part of the agreement could then find it difficult to achieve acceptance of their products on the
market unless they adopt the more stringent requirements and possibly certification.
5.2.5 Summary and Definitions of Barriers
The definitions and the boundaries of different forms of “barriers” has been the subject of considerable debate
and confusion. There are no universally adopted definitions that specifically apply to this area of work although
some international definitions, such as the OECD, do provide a starting point for explaining conventional forms
of barriers. It has been concluded by the Task Group that within the scope of the CPD and construction
product’s markets there is a hierarchy of barriers affecting construction products and CPD ER3 as follows:
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