EXPLANATORY MEMORANDUM
1.CONTEXT OF THE DELEGATED ACT
Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC 1 contains an empowerment of the Commission to adopt delegated acts to establish classes of performance in relation to the essential characteristics of construction products. The Regulation also provides that the manufacturers of construction products should not be subjected to unnecessary administrative burdens or costs. Notably, as foreseen in Article 28 of Regulation (EU) No 305/2011, the Commission should choose the least onerous system for assessment and verification of constancy of performance, which still could serve appropriately the needs of health, safety and environment.
When the performance of certain construction products has already been sufficiently demonstrated by stable test results or other existing data, their manufacturers should be permitted, under conditions to be specified, to declare a certain class of performance without testing or further testing these products as foreseen in Article 27(5) and Article 36(1)(a) of Regulation (EU) No 305/2011. This simplified procedure further reduces administrative burdens and costs for manufacturers. Commission Decision 2006/213/EC 2 already established classes of the reaction to fire performance for solid wood panelling and cladding. Table 2 of Annex to that Decision presented the necessary conditions for classification without need for further testing for these products. In that table, the product detail referred to is “Wood pieces with or without tongue and groove and with or without profiled surface” and “Wood pieces mounted on a support frame”. Thereby, the current table does not explicitly specify that the proven stable and predictable performance concerning the reaction to fire of those products is, under the set conditions, only guaranteed for untreated wood pieces.
However, it has been clarified, as also supported by the relevant Technical Committee of CEN 3 and the Guidance of the Group of Notified Bodies 4 , that Table 2 of Annex to Commission Decision 2006/213/EC is to be applied only to untreated 5 solid wood panelling and cladding. The experience and expertise, as well as expert group consultations carried out, have confirmed that, under the set conditions, solid wood panelling and cladding has a stable and predictable performance concerning reaction to fire only when the solid wood pieces are untreated.
For the sake of legal certainty and uniform application of law, that condition should be explicitly specified in the classification act. Table 2 of Annex to Decision 2006/213/EC should thus be deleted and Annex to this Regulation applied instead.
2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
The draft Regulation was discussed firstly in the meeting of the Advisory Group on Construction Products 6 on 21 November 2022 and submitted for a written consultation of experts between 22 November and 28 November 2022. It was also discussed in the meeting of the Advisory Group on Construction Products 15 February 2023. Before these steps, all Member States were presented an opportunity to nominate experts to participate in them. In addition to these experts, also other external stakeholders were consulted. The documents discussed in the Advisory Group on Construction products, relevant to the written consultation, were transmitted simultaneously to the European Parliament and to the Council, as foreseen in the Common Understanding on delegated acts. The observations presented in these contexts have been taken into account when preparing the final draft version of this act for the inter-service consultation.
It was published for public feedback on the Better Regulation Portal from ## April to ## May 2023; [wording on feedback and any follow-up to be included subsequently].
3.LEGAL ELEMENTS OF THE DELEGATED ACT
Pursuant to Article 27 of Regulation (EU) No 305/2011, classes of performance may be established in relation to the essential characteristics of construction products. According to Article 27(1), this can be done by delegated acts of the Commission, whereas Article 27(2) allows for the use of harmonised standards for this purpose.
Moreover, in accordance with Article 27(5), the Commission may establish conditions under which a construction product shall be deemed to achieve a certain class of performance without testing or without further testing, in order to avoid the unnecessary testing of construction products for which performance has already been sufficiently demonstrated by stable test results or other existing data.
These conditions are then to be fulfilled when a manufacturer wishes to replace type-testing of his product by these levels or classes of performance, as set out in Article 36(1)(a) of Regulation (EU) No 305/2011.
The European classification system established by Commission Delegated Regulation (EU) 2016/364 7 , regarding the reaction to fire of construction products, in particular Table 1 of its Annex, is applicable to solid wood panelling and cladding.
According to the expertise and expert group consultations carried out, the reaction to fire performance of solid wood panelling and cladding, within the classification provided for Delegated Regulation (EU) 2016/364, is well established when the solid wood is untreated 8 . For this reason, the reaction to fire performance of these products can be deemed, without the need for any further testing, to achieve a certain class of performance, as defined in the European classification system mentioned above.
The draft Regulation conforms to the principle of proportionality, since adopting a delegated act is the most efficient way to achieve the desired outcome, the alleviation of administrative burdens, while continuing to guarantee legal certainty. It results in alleviating administrative obligations for market actors otherwise to be complied with under Regulation (EU) 305/2011, concerning the testing of products under its scope.
COMMISSION DELEGATED REGULATION (EU) …/...
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on the conditions for classification, without testing, of solid wood panelling and cladding with regard to their reaction to fire and amending Decision 2006/213/EC
