What is CE Marking?

A CE Mark on a product is an assertion that the product is fit for purpose and can legally go on the market in the European Economic Area (EEA). Accordingly CE Marking facilitates the free movement of goods within the EEA. A CE Mark is not a quality mark, as whilst quality marks and the requirements for the permitted use of these are determined by their owner, the  CE Mark is recognised in all countries of the EEA  as a confirmation that products meet recognised standards.

All member states must require relevant products to be CE marked and, following recent legislation, the use of a CE mark is now compulsory for all construction products in the UK where there is a  harmonised standard or European Technical Assessment in relation to that product.

The new regulations - what do they mean?

The 1 st July 2013 saw the Construction Products Regulation 2011 come into force, effective throughout the EEA. Whilst this took direct effect in UK, the Construction Products Regulations 2013 were also brought into force in the UK on this date to formally implement the new rules. The Construction Products Regulation 2011 was brought into force with the aim of implementing  standards across the EEA which will ensure health & safety, the prevention of injury and the protection of the environment. It was intended to create a common market for construction products in order that regardless of where the product is bought, certain functions and requirements will be assured.

The new regulations replace the 1991 and 1994 regulations for products entering the market from the 1 st July 2013; for products entering the market prior to this date the previous regulations remain applicable. Those to whom the obligations apply are advised to utilise and be aware of both the EU and UK regulations as the UK regulations are additional to the EU regulation detailing their application and enforcement. The new regulations have brought a major change to the construction industry in the UK as now, for the first time, the (previously voluntary) CE Marking of construction products is mandatory.

What are my obligations?

The mandatory CE marking enforced by the new regulations applies to most construction products, although there are a few exceptions. The 2011 Regulation defines construction products as:

"any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof and the performance of which has an effect on the performance of the construction works with respect to the basic requirements for... buildings and civil engineering works." (Article 2, Construction Products Regulation 2011.)

With Kit, as referred to in this definition, defined as:

"a construction product placed on the market by a single manufacturer as a set of at least two separate components that need to be put together to be incorporated in the construction works". (Article 2, Construction Products Regulation 2011.)

As part of the aim for harmonised technical specification across all Member States, all products so defined as construction products must meet “essential requirements”  as defined in the regulation, including mechanical resistance & stability, safety in the event of fire and safety & accessibility in use. Moreover before any construction product for which there is a harmonised European standard can be placed on the market, the manufacturer must give a declaration of performance of the product (i.e. a declaration that the product meets the requirements of the regulations). There are three exceptions, however, for which no such declaration is necessary: custom-made products; products manufactured on site to be incorporated into works on that site; and traditional & heritage products.

Most notably, under the new regulations construction products for which there is a harmonised standard must be affixed with CE marking. There are also further rules in this regard, including the prohibition of any other marking that indicates the conformity of the construction product. The new regulations do not stop there, however. Certain types of construction products (those which are particularly revolutionary, for example) may not be covered, or fully covered, by a harmonised standard. However these products can be affixed with CE marking on a voluntary basis through application for a European Technical Assessment (ETA), an approval based on testing carried out to agreed European standards. Once an ETA has been issued for a construction product, a declaration of performance must be drawn up for that product and CE marking must also be affixed. There are obvious benefits to this provision though, in that the product can accordingly be placed on any European market and will bear a recognisable mark of quality to customers.

These new obligations are far-reaching with not  just manufacturers being responsible for assuring compliance. Manufacturers have the burden of not only preparing the declaration of performance and affixing the CE marking, but must also draw up technical documentation in order that the product can be assessed. They are further obliged to keep both the declaration and technical documentation for a period of 10  years and have regular ongoing duties in relation to the product such as tracking alterations, sample-testing and removing the product from the market if necessary. Importers have far-reaching duties also; before the product is placed on the market they must check that it complies with the 2011 Regulation. For example if there is a harmonised standard for the product, has the manufacturer assessed it, drawn up the requisite documents and CE marked the product? Furthermore distributors must be wary, checking whether the requirements for CE marking have been fulfilled and if the necessary documents have been made available in the right language for the country in which the product is being distributed. If an importer or distributor is modifying a relevant product to the extent that its performance declaration will be affected or are selling it under their own name or trademark, they additionally come under the obligations of a manufacturer. Anyone supplying the product is also required to supply a copy of the declaration, whether electronic or paper.

It is vital that all bodies involved in the incorporation of any construction product into any European market are fully aware of their obligations under the new regulations as it is an offence to supply a product which does not conform to these regulations. Additionally, if such an offence is committed the guilty party could besubject to up to 3 months imprisonment and/or a fine of up to £5000. Whilst there is a defence of due diligence this requires the offending party to show that it “took all reasonable steps and exercised all due diligence to avoid committing the offence"  – a tall order. All relevant parties must therefore read these regulations carefully and seek advice when in doubt as to their obligations, as ignorance is no excuse.