Committee Reports > List of Committees > Joint > 1979 > Committee on the Secondary Legislation of the European Communities > Report No. 54 - Construction Products

REPORT

Introduction

1. The Joint Committee has examined the proposals made by the Commission for (a) a Council Directive on the approximation of the laws, regulations and administrative provisions of the Member States relating to construction products and (b) a Council Resolution laying down a list of priority products to be dealt with by further Directives implementing the aforementioned Directive [R/3289/78 (ECO 272)].

2. The proposed Directive is based on Article 100 of the EEC Treaty and as such is directed towards removing technical non-fiscal barriers to intra-Community trade in products used in the construction industry. It is a framework Directive which envisages implementing Directives being made covering individual products or groups of products or prescribing matters relating to all products. The proposed Council Resolution relates to the products to be given priority in adopting implementing Directives.

Framework Directive

3. The proposed framework Directive would apply to all the products used in the construction of buildings and civil engineering works though as already stated, implementing Directives would be required to apply the system envisaged to individual products. The draft framework Directive lays down the procedures that may be followed and the principles that are to be observed in implementing Directives. It is provided that Member States may not refuse, prohibit or restrict the marketing of products complying with the relevant Directives and products which have received in accordance with prescribed procedures EEC marks and/or certificates of conformity would be presumed to so conform.

4. The procedures proposed are (a) EEC type approval by a Member State, (b) EEC type examination carried out by bodies authorised by a Member State and (c) EEC self-certification by manufacturers. The first two of these may be supplemented by EEC verification of conformity to type carried out by bodies approved by the Member State.

5. The principles to be observed are concerned mainly with health and safety. These principles would be reflected in the technical content of the implementing Directive which, depending on requirements, would cover:

—technical characteristics, having regard to intended use,

—test methods,

—calculation codes for properties and performance,

—classification and methods of classification,

—methods of inspection,

—rules for implementation.

Draft Resolution

6. In view of the number and diversity of the products the Commission is proposing that the Council adopt by Resolution a list of priority products for the implementing Directives. It has subdivided the list it is proposing into five categories, viz. (a) products in which structural stability is a major requirement, (b) wood products, (c) plastic and synthetic products, (d) products for fitting out buildings and (e) behaviour in fire of construction materials and components.

Implementing Directives

7. Directives aimed at removing technical barriers to trade by harmonising national laws are made by the Council, acting unanimously, under Article 100 of the EEC Treaty. Relying on Article 155 of the Treaty which allows the Commission to “exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter” the Commission is proposing in the frame-work Directive a new procedure for making implementing Directives. Implementing Directives would be drafted by the Commission and considered by a Committee composed of representatives of Member States who would give an opinion on each draft within a time limit. Opinions would be adopted by a majority of 41 votes out of the total of 61 votes available to the Member States weighted as provided in Article 148 (2) of the Treaty. Under that procedure Ireland would have three votes. If the Opinion were favourable, the Commission would then issue the implementing Directives. If it were not or if there were no Opinion, the Commission would without delay submit a proposal to the Council, which would act by qualified majority. If the Council had not acted within 3 months, the draft implementing Directives could then be issued by the Commission.

8. This procedure, which the Commission likens to the systems of delegated legislation in use in Member States, would, it is claimed, simplify and accelerate the process of harmonisation. The Commission points out that a similar system is already in use for the adaptation of Directives to technical progress.

Methods of Harmonisation

9. As to the method of harmonisation to be used in the implementing Directives the Commission mentions two, one optional and the other total. The “optional” method would give manufacturers the guarantee that products which conform to the prescribed Community standards could circulate freely on the Community market but would leave to the individual Member States the right to decide whether and under what conditions products not so conforming could be sold and used on their own territories. The “total” method would enjoin Member States to admit to their market only those products which comply with the relevant Directives. The Commission indicates that as a general rule, it favours the use of the optional method for construction products though it does not rule out the total method for exceptional cases.

Implications for Ireland

10. Building controls in Ireland are exercised through bye-laws made under the Public Health Acts and include, inter alia, certain controls over materials, to be used in building. Only six local authorities altogether have made such bye-laws. They are Cork, Dublin, Dún Laoghaire and Limerick Corporations, Dublin County Council and Bray Urban District Council. The Joint Committee is informed that it is proposed to replace these bye-laws with a comprehensive set of building regulations now in draft form, which contain a section dealing with the fitness of materials. The requisite legislation is contained in the Local Government (Planning and Development) Act, 1963. It is not possible at this stage to state whether amending legislation may be necessary in order to comply with requirements of some implementing Directives but the Committee is advised that amendment as a direct result of the framework Directive is unlikely to be necessary.

11. The harmonisation of national laws relating to building materials would have advantages for exporting industries while at the same time exposing the domestic market to further competition from abroad. An improvement in standards might reasonably be expected but the Committee is advised that lower prices would be unlikely. The Committee is also informed that Córas Tráchtála does not consider that the proposed harmonisation would offer any vast new opportunities for Irish exporting companies.

Views of the Joint Committee

12. As there are non-fiscal barriers to the free movement of building materials throughout the Community, the obligation imposed on Community institutions by Article 100 of the EEC Treaty is to see that they are removed. There cannot, therefore, be any objection to the proposed framework Directive insofar as it is directed towards that objective.

13. The method proposed for the adoption of implementing Directives is, however, open to serious objections of principle. In the Joint Committee’s opinion it is in conflict with the spirit if not, indeed, the letter of Article 100 of the EEC Treaty. When the Treaty clearly lays down the appropriate procedure for the harmonising of national laws in the interests of the common market, the Committee cannot see how the adoption of an alternative procedure can be justified particularly one that clearly conflicts with the voting strength of the Member States enshrined in the Treaty itself.

14. In relation to the argument that the suggested delegation to the Commission would improve Community procedures, the Joint Committee finds it objectionable that changes of this kind should be proposed in this piecemeal fashion and particularly at this stage. At present a committee of three prominent personalities is examining for the European Council the question of adjustments to institutional mechanisms and procedures to meet the needs of enlargement. In the Joint Committee’s opinion, consideration of any new procedures should be deferred until the European Council has had an opportunity of considering and examining the committee’s report.

15. On the issue of total or optional harmonisation the Joint Committee believes that the primary consideration must be to avoid any encroachment on the prerogatives of the national legislatures. The Community institutions are confined by Article 100 of the EEC Treaty to such harmonisation as is necessary for the establishment or functioning of the common market and may not indulge in harmonisation for its own sake. The Committee finds it difficult to envisage the circumstances in which optional harmonisation would not be sufficient for the purposes of Article 100. In any event, total harmonisation under the procedure proposed by the Commission would be quite unacceptable.

16. In the nature of things it may well be some time before implementing Directives covering different products are adopted. The Joint Committee considers therefore that the proposed national building regulations should not be delayed and it would like to see them in force at an early date.

Acknowledgements

17. The Joint Committee consulted the Confederation of Irish Industry and the Construction Industry Federation in regard to the Commission proposals. It wishes to express its appreciation of and thanks for the assistance it received.

(Signed) MARK CLINTON,

Chairman of the Joint Committee.

30th May, 1979.