The European Commission has decided to refer Germany to the European Court of Justice for failing to respect EU rules governing the harmonisation of the marketing of construction products. The result of this failure is that manufacturers from other Member States have great difficulty selling construction products on the German market.
The Commission has received numerous complaints from manufacturers and importers of construction products, who have had difficulties to sell their products on the German market. The reason has consistently been German requirements that construction products must have additional national marks or approvals, despite the fact that they already have a CE–mark1 and are legally marketed in other Member States.
Under the provisions of the Construction Products Directive (89/106/EEC), Member States retained competence to establish performance requirements for construction products, but on condition that Member States did not impede the free movement of CE-marked products. The same rule exists, even more clearly, in the newly adopted Construction Products Regulation (305/2011/EU).
To enable the Single Market for construction products to function properly, harmonised European standards introduced a “common technical language” for expressing and defining the performance of construction products. If Member States require products covered by a harmonised standard to undergo additional testing, in spite of having been CE–marked, it creates barriers of trade within the Single Market.
Before the Commission decided to refer Germany to the Court there were extensive exchanges of information between the Commission and Germany. In this exchange, the German authorities acknowledged the use of and reliance on the national system of Bauregellisten, necessitating Ü marks for certain construction products. This national system requires construction products that are already CE–marked to undergo additional testing and acquire national approval, before they can be marketed in Germany.
The Commission’s case against Germany will focus on construction products covered by certain harmonised European standards (notably doors, gates and thermal insulation products). However, as the Commission has been receiving a large number of similar complaints regarding the German treatment of products covered by several other harmonised standards, the judgement of the Court should impact the whole German system of Bauregellisten.
With around 15% of EU manufacturing added value, but only 5% of intra-EU trade, the construction products sector is less open than other sectors of manufactured goods. “Construction products” include more than 40 families of products such as doors, thermal insulating products, cement, roofing products or bricks.