SIST-TP CEN/TR 16410:2013

SLOVENSKI STANDARD
SIST-TP CEN/TR 16410:2013
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
SIST-TP CEN/TR 16410:2013 en
2003-01.Slovenski inštitut za standardizacijo. Razmnoževanje celote ali delov tega standarda ni dovoljeno.

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SIST-TP CEN/TR 16410:2013

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SIST-TP CEN/TR 16410:2013


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.

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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


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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.
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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;
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 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
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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
2
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.”
The text of footnote 2 in CEN/TR 15855 stated: 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.
Within the body of CEN/TR 15855, the topic of barriers to use was investigated briefly with the following
conclusions:
“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 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.”
Furthermore, the distinctions between the different concepts of barriers to use of construction products was
summarised:
“5.2.5 Summary and Definitions of Barriers
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“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:
“a) Technical Barriers to Trade – Non-harmonised technical regulations, minimum standards and/or
certification systems for health, safety and environmental protection, which result in the erection of barriers to
inter-state trade. Technical Barriers to Trade may prevent a product being legally placed on the Market. They
may result from the imposition or use of legally adopted national regulations.
“b) De-facto Barriers to Trade – National or local requirements, minimum standards, or approvals, over and
above those demanded and harmonised at the European level, that relate to the application or the use of
products when placed on the Market. De-facto barriers to trade do not prohibit the legal placing of products on
the Market but may result in them not being used or specified.
“c) Barriers to Use – National, local, or industry initiatives, schemes or recommendations, which are not
mandatory, but which become accepted or demanded as a minimum requirement for products being placed
on the local market. Barriers to Use are often based upon voluntary certification or approval schemes,
labelling or information requirements.”
2 The Wider Perspective on Barriers to Trade
2.1 General
Further to the discussions in the earlier CEN/TR 15855, www.BusinessDictionary.com [3] gives the following
definition of barriers to trade:
“Economic, procedural, regulatory, or technological factors that obstruct or restrict entry of new firms into an
industry or market. Such barriers may take the form of
(1) clear product differentiation, necessitating heavy advertising expenditure to introduce new products,
(2) economies of scale, necessitating heavy investment in large plants to achieve competitive pricing,
(3) restricted access to distribution channels,
(4) collusion on pricing and other restrictive trade practices (such as full-line forcing) by the producers or
suppliers,
(5) well established brands, or
(6) fierce competition.
Barriers to exit, paradoxically, also serve as barriers to entry because they make it difficult to cut one's losses
and run. Also called barriers to competition, entry barriers, or market entry barriers.”
It is clear that the boundary between various types of “barriers to trade” and “barriers to use” can overlap or
even be difficult to define in isolation. It is nevertheless also important to remember that the creation of tools
and systems (through standardisation) for the removal of purely technical barriers to trade – for example the
barriers caused by having to test the same property several times for different countries – can also be linked
to financial barriers and to market protectionism. Barriers to use are much more complex than technical
barriers. It may be simpler to drop the distinction of “trade” or “use” and refer, instead, to technical barriers,
fiscal barriers and non-mandatory barriers to the use of products since they are all one form or another of
barriers to trade.
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1)
The World Trade Organisation Agreement on Technical Barriers to Trade (“TBT Agreement”) [4, 5] (see
also Annex B), which entered into force in 1995, seeks to balance two competing policy objectives:
1. the prevention of protectionism, with
2. the right of a Member to enact product regulations for approved (legitimate) public policy purposes (i.e.,
allowing Members sufficient regulatory autonomy to pursue necessary domestic policy objectives).
Alongside the desire to prevent protectionism is the need to assure that Members retain sufficient regulatory
autonomy to accomplish domestic policy goals. Domestic regulations can accomplish objectives unrelated to
protectionism. For example, domestic regulations can serve as a means of protecting consumer health and
safety, the environment and national security. Domestic regulations can also further economies of scale, and
increase consumer confidence, by assuring uniform technical and production standards. Economic
development, and the improved education that should result, can lead to demands from consumers and
sometimes the business community for an increase in regulations or standards.
Both the preamble of the TBT Agreement and Article 2.2 of the TBT Agreement identify certain regulatory
goals that are deemed “legitimate” for regulatory purposes. Article 2.2 sets forth a list of legitimate TBT
objectives which includes:
 protection of life/health (human, animal and plant),
 safety (human),
 protection of national security,
 protection of the environment, and
 prevention of deceptive marketing practices.
The list of legitimate objectives in Article 2.2 is not exclusive.
The range of barriers can be extensive and as we move from fiscal barriers through the WTO agreements,
and, at the European level through the breaking down of cross border barriers, we still find numerous
examples of non-tariff (or non-fiscal) barriers which are either direct barriers to trade, de-facto barriers to
trade, or simply barriers to the use of products.
2)
2.2 Examples of Non-Tariff Barriers
Non-tariff barriers to trade can be:
 Import bans
 General or product-specific quotas
 Rules of Origin
 Quality conditions imposed by the importing country on the exporting countries
 Sanitary and phyto-sanitary conditions
 Packaging conditions

1) World Trade Organization (WTO) – Part of the United Nations.
2) Source: "Non-tariff barriers to trade" article, published online by Wikipedia.
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 Labelling conditions
 Product standards
 Complex regulatory environment
 Determination of eligibility of an exporting country by the importing country
 Determination of eligibility of an exporting establishment(firm, company) by the importing country.
 Additional trade documents like Certificate of Origin, Certificate of Authenticity etc.
 Occupational safety and health regulation
 Employment law
 Import licenses
 State subsidies, procurement, trading, state ownership
 Export subsidies
 Fixation of a minimum import price
 Product classification
 Quota shares
 Foreign exchange controls and multiplicity
 Inadequate infrastructure
 "Buy national" policy
 Over-valued currency
 Intellectual property laws (patents, copyrights)
 Restrictive licenses
 Seasonal import regimes
 Corrupt and/or lengthy customs procedures
 Bribery and corruption.
2.3 Barriers to trade within the European Union
Tariffs on trade within the European Union were abolished decades ago. However, research by Natalie Chen
and Dennis Novy [6] has found that significant trade barriers remain, notably "technical barriers to trade," such
as health and safety requirements as well as packaging and labelling requirements:
“European economic integration was launched in the 1960s with the creation of customs unions, abolishing
internal tariffs and trade quotas. The process was revived within the European Union (EU) by the Single
European Act of 1986, which aimed to complete a Single European Market by the end of 1992.
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“More recently, the introduction of the single European currency – the euro – was intended to accelerate the
process of trade integration by eliminating exchange rate uncertainty and increasing transparency and
competition across markets.
“The single market was motivated by the observation that in the 1980s, trade within Europe was still impeded
by significant barriers to trade. In particular, there remained many non-tariff barriers, including so-called
"technical barriers to trade."
“The costs of technical barriers to trade eclipse the costs associated with being outside the euro
area”
“These barriers result from regulations that affect the sale of goods in some markets by requiring specific
product characteristics or production processes, for example, a certain package size for food products.
“With intra-EU tariff barriers having been completely eliminated by 1968, technical barriers have become
increasingly visible. They are also a key concern in today's global trade negotiations, with the World Trade
Organisation (WTO) seeking to ensure that (from the WTO Agreement on Technical Barriers to Trade):
“… technical regulations and standards, including packaging, marking and labelling requirements [.] do not
create unnecessary obstacles to international trade.”
“So how much progress has the EU made in removing internal barriers to trade? Our research measures
trade integration within the EU by examining 166 manufacturing industries in 11 member states over the
period 1999-2003. We find that significant trade barriers remain and, apart from the inevitable transport costs,
the most substantial costs are technical barriers.
“Indeed, the costs of these barriers eclipse the costs associated with being outside the euro area. They also
eclipse the costs of not abolishing physical border controls – between continental Europe and the UK – by
opting out of the Schengen Agreement.
“Policy action could lead to further gains from the reduction of trade barriers within Europe”
“In quantitative terms, we find that the costs associated with geography and transport explain 25 % of the
variation in trade integration. The most important factor is the weight to value of traded goods (17 %), followed
by the distance between the origin and destination of shipments (5 %).
“Policy factors explain 7 % of the variation in trade integration, which is far from negligible. Technical barriers
to trade are the most important factor (5 %), while public procurement, Schengen and the euro only play very
minor roles.
“The policy implications of these results are clear. While the barriers related to geography and transport costs
arise from the very nature of spatial separation between markets, policy barriers such as technical barriers to
trade are in principle removable. This suggests that there is room left for policy action and that further gains
are possible through the reduction of trade barriers in Europe.
“A great number of those trade barriers were hidden in regulations, such as consumer or environment
protection standards, which varied from one State to another. Their restrictive effects were often more
damaging than customs duties and quantitative restrictions. Indeed, while customs barriers raised the price of
imports or quantitatively limited them, various regulations could completely block the import of a product
...