Author: John G Munro BE BSc C Eng, consulting engineer The European Commission has issued a regulation to all member states in relation to construction products, which is known as the Construction Products Regulation 305/2011 and totally replace the Construction Products Directive 89/106/EEC. Issuing a regulation, which has a direct effect and is directly applicable to those people[1] or groups of people who it is intended for, is unusual, unlike the issue of a directive, where the member state must implement national legislation to place duties upon those that the directive was aimed at. National legislation has been implemented in Ireland to provide for the setting up of official market surveillance, which will be the 'watch-body' for construction products' compliance with the CPR. This legislation, known as European Union (Construction Products) Regulations, 2013 [SI 225 of 2013} makes provisions for a Building Control Authority[2] to  prosecution for breaches of the CPR. Penalties for breaches can include fines of up to €500,000 or imprisonment for a term not exceeding 12 months, or both. Where a person has been convicted on indictment[3], the court may order a forfeiture order which allows the market surveillance order to seize the product(s) and dispose of them as required, which includes destruction. Where a conviction and forfeiture order has been obtained, the costs involved with the seizure and subsequent disposal shall be recoverable from the person(s) convicted. Three (3) definitions which may assist in the identification of our product, be they single entities or as in most cases, assemblies of steel components, fabricated to act as a whole are:

  1. 'Construction product' means 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 construction works;
  2. 'Kit' means 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 into the construction works;
  3. 'Life-cycle' means the consecutive and interlinked stages[4] of a products life from raw material acquisition or generation from natural resources to final disposal.
It would not be inconsistent then to say that fabricated steelwork falls within the scope of the above definition, particularly when we consider farm buildings and other normally  domestic or commercial construction projects where steel work plays an important - if not the essential - building component. The manufacturer of this fabricated steelwork must now comply with the law by:
  1. Issuing a Declaration of Performance;
  2. Affixing the CE mark to the product.
Each of the two actions above, appear, on the surface to be relatively straight forward, however, in order to carry this duty there can be some onerous other duties required of by the stakeholders, for it is here we now look at four (4) other definitions from the CPR, namely:
  1. 'Performance of a construction product' means the performance related to the essential characteristics expressed by level or class, or in a description;
  2. 'Level' means the result of the assessment of the performance of a construction product in relation to its essential characteristics, expressed as a numerical value;
  3. 'Class' means a range of levels, determined by a minimum and maximum value;
  4. 'Threshold level' means a minimum or maximum performance level of an essential characteristic of a construction product.
A simple matrix or route map will give an indication of the level of requirement which is made up as follows: Steel               SC1:     Static type loading, perhaps with small seismic anomalies. SC2:     Dynamic type loadings where stresses may be cyclic as in bridges, etc. PC1:     Production Class using basic standard steels with lesser welding. PC2:     Higher Class steels with more “exotic” welding procedures. EXC1:   Lowest test and examination requirements, probably not requiring the input of a Test Assessment Body. EXC2:   Higher than EXC1. EXC3:   Requirements of EXC2 plus additions. EXC4:   Highest testing, validation and documentation class. As we can see, as the service/duty becomes more onerous, the requirement for the manufacturer becomes more complicated, i.e, the Execution Class (EXC) becomes higher[5], with EXC 1 being the lowest and EXC 4 the highest. Manufacturers and designers must identify this execution class In some circumstances, national standards may require the execution class to increase from that indicated within the table, therefore it is important that we understand how to navigate the tables. Those engineers will probably notice the similarity of the above chart and hierarchical selection process with that of the Pressure Equipment Directive, where the higher category of pressure vessel or assembly of pressure equipment, requires a more onerous testing and validation procedure to be carried out. The Machinery Directive through EN ISO 13849 requires the designer/user to select a hierarchical level of safety for their safety-related control systems, again, the higher the required level of safety for the system, the more onerous the installation, testing and validation. An interesting point with the latter two directives, is that the harmonised standards under-pinning them, are under constant review and amendment, therefore it would be reasonably safe to state that the harmonised standards for the CPR, most notably EN 1090-1:2009 + A1 2011, will also be the subject of ongoing review, thus making the task of the structural engineer more dynamic, in that they must keep fully abreast of any changes or repeals of the harmonised standards. I now come to the issue of derogations, which historically, is where I find most designers' and manufacturers' attention is focused for obvious reasons. Derogation is where the law permits a person to deviate from its requirements and can be found in other legislation such as the Lift Directive and the Pressure equipment Directive[6]. In the CPR Article 5 provides for such a derogation and relieves the manufacturer from issuing a Declaration of Performance, in the following circumstances: a)     The construction product is individually manufactured or custom-made in a non-series process[7] in response to a specific order, and installed in a single identified construction work, by a manufacturer, who is responsible for the safe incorporation[8] of the product into the construction works, in compliance with the applicable national rules and under the responsibility of those responsible for the safe execution of the construction works designated under the applicable national rules[9]. b)     The construction product is manufactured on the construction site for its incorporation in the respective construction works in compliance with the applicable national rules and under the responsibility of those responsible for the safe execution of the construction works designated under the applicable national rules. c)      The construction product is manufactured in a traditional manner or in a manner appropriate to heritage conservational in non-industrial process for adequately renovating construction works officially protected as part of a designated environment or because of their special architectural or historic merit, in compliance with the applicable national rules. The very minimum required by the manufacturer is the compliance of Annex 1 of the CPR, which states that: Construction works as a whole and in their separate parts, must be fit for their intended use, taking into account in particular the health and safety of persons involved throughout the life-cycle of the works. Subject to normal maintenance, construction works must satisfy these basic requirements for construction works of a reasonably economically reasonable working life.
  1. Mechanical resistance and stability;
  2. Safety in the case of fire;
  3. Hygiene, health and the environment;
  4. Safety and accessibility in use;
  5. Protection against noise;
  6. Energy economy and heat retention.
In conclusion then, we can see that there is a lot of work to be done by designers, manufacturers and users, if they are all to ensure compliance with the CPR to avoid prosecution along with the subsequent personal liabilities and companies' consequential damage by such prosecutions. I have mentioned users here; however, neither the CPR nor national legislation has made any reference to same. The question I have is should the manufacturer or supplier of the 'defective' construction product become insolvent or go out of business prior to any prosecution, who will carry the liability for any personal injury allegation against a defect caused by non-compliance of a construction product? Within the legislation for machinery, where a Declaration of Conformity[10] has been issued, normally by the manufacturer, there is a 'presumption of compliance' on the part of the law, therefore where a defect arises and no manufacturer is available to answer any charges, the user has a reasonable defence[11] providing the machinery or assembly is accompanied by a Declaration of Conformity. From a client’s perspective then, it is essential that they obtain either a Declaration of Conformity in the case of machinery or pressure equipment or a Declaration of Performance for that of construction related works. [1] Manufacturers or groups of manufacturers; [2] A nominated Local Authority; [3] SI 225 of 2013 does provide for summary convictions, where a person may be liable for lesser fines ((Class A) and imprisonment for a period of no more than three months, or both; [4] Mining, quarrying, transport, smelting, pours, blending, cutting, welding, bolting, painting, modifying and de-commissioning; [5] The determining factor is the potential risk to the user or third parties, should the component or assembly fail; [6] The PED does not give an actual derogation but does allow for out of scope 'installations'; [7] Non series; [8] The PED provides for a similar caveat in that pressure equipment…. "The Fifth recital of the Directive says that the Directive does not cover the assembly of pressure equipment on the site and under the responsibility of the user, as in the case of industrial installations". [9] Without entering into great debate about this point, suffice to say that we will look at the scope of this statement later, however, those involved in the construction industry, more specifically the design team, including the PSDP, PSCS, Architect, Structural engineer and Client; [10] Similar in nature to a Declaration of Performance; [11] Although not absolute.