EPLF and MMFA: “This surely cannot be the political intention!” German Working draft on new requirements for building works relating to health protection (ABG) widely rejected.

Border closures and upper limits are currently dominating political discussion. Germany relies on European solutions, but with construction products, the opposite is the case – German bureaucracy is opting for a special national strategy. At the end of 2014, the European Court of Justice (ECJ) withdrew the German Ü mark of conformity as a symbol of approval, but now the Deutsches Institut für Bautechnik (DIBt: German Institute for Building Technology) is working hard on a solution to circumvent this. Under the pretext of health protection, their real intention is to continue to secure jobs for bureaucrats and to go it alone nationally. Here, the EPLF Association of European Producers of Laminate Flooring and the MMFA Multilayer Modular Flooring Association (both based in Bielefeld/Germany) state their joint position on this matter.

Germany’s prosperity depends on foreign trade. In 2015, for example, it exported goods valued in excess of one trillion euros, significantly more than a third of its gross domestic product. Almost no other country in Europe benefits so much from the single market as Germany does. Yet there is Euroscepticism in Germany, seemingly representing a kind of collective masochism – and if German authorities are now acting in the same vein, alarm bells should definitely be ringing.

So what is this all about? We are talking here about case C-100/13 which was brought to the European Court of Justice (ECJ), where the European Commission brought a legal action against the Federal Republic of Germany for erecting trade barriers in the single market for certain construction products through the practice of imposing German technical building approvals in the form of the Ü mark (Ü-Zeichen). The view of the ECJ is that the so-called Lists of Construction Rules (Bauregellisten) constitute additional requirements for effective market access and the use of these construction products in Germany, even though the products in question are covered by harmonised standards and hence bear a CE marking. The judgment of 16th October 2014 ruled that the European Commission was justified in bringing this action, so the DIBt, which has authority in Germany, has had to phase out the practice of awarding the Ü mark of conformity.

The DIBt wants to circumvent the ECJ judgment.

To quote an old German saying: “A cat can’t stop catching mice!” – on 17th December 2015, just in time for the start of the 2015/2016 festive break, the DIBt published a working draft on “Requirements for buildings relating to health protection (ABG).” On 6th January 2016, this was then forwarded to the institutions and associations involved, giving them a 3-week period of notice to issue a written statement. After an initial storm of protest, this was extended to 25th February 2016. Still not long enough, however, bearing in mind the complexity of the subject matter.

What is the aim of the working draft? In the past, the only building products that could be used in Germany were those bearing a Ü mark complying with the DIBt’s own specifications, which were independent from European harmonisation. After the ECJ overturned this practice and declared the harmonised CE standards as sufficient, the DIBt is now opening up a new avenue – which on the surface no longer concerns the individual products used, instead referring to “buildings” as a complete entity. Although this puts a new label on the issue, the contents are just the same as before – it’s like “putting old wine into new wineskins”, you could say.

This is because evaluating a building can only be carried out by evaluating the individual construction products used in that building. And this is where the DIBt is keeping all its options open, for the purpose of creating its own criteria and hurdles both alongside and outside the scope of European regulations – constantly linked to a powerful bureaucracy for national approvals, individual stipulations for emission limits and, as a result, no doubt the necessity for specific building certification issued by experts. You could hardly call it promoting innovation when the DIBt reserves the right to demand further verification for innovative construction products that goes beyond the scope of the working draft and is supposed to be specified by the relevant authorities on a case-by-case basis.

The document contains thirteen densely-written pages of requirements regarding components, emissions, measurement procedures and then tables showing LCI values (LCI = Lowest Concentration of Interest) – partly containing the DIBt’s own stipulations and considerations for substances and partly adopting the EU’s LCI values. In the case of the latter, there are always reservations about wanting to apply stricter benchmarks at national level.

Incompatible with European law: protests in Brussels and Berlin

On this issue, Michael Halstenberg, former head of a government department and also a lawyer specialising in building law, states: “In my view, the draft is once again incompatible with European law. The DIBt evidently doesn’t understand that setting building product requirements through an indirect route isn’t permitted either. Simply re-defining them as “building requirements” in order to avoid the term “construction products” is certainly no solution. And the issue of how certification will be regulated in future is completely open. In any case, this is not the way to make it work.”

In a letter to the EU Commission, the EPLF makes reference to the ECJ judgment and reproaches the DIBt: “Germany is shifting the evaluation of health and safety requirements from the construction product level up to the building structure as a whole. The requirements now being proposed make it clear that it is Germany’s intention to circumvent the ECJ judgment, whilst at the same time adding requirements that are completely different from the harmonised standards, and to initiate new, national building certification procedures.”

Dr Peter Sauerwein, Managing Director of the Association of the German Wood-Based Panel Industry (VHI), is in charge of this topic at the European Panel Federation (EPF) and states in a letter to the Chairman of the Expert Commission for Building Technology at the Federal States Building Ministers’ Conference: “... there is an urgent need for a call for: absolute consistency in the statutory regulations for the individual states; no increased building requirements to be stipulated; no construction requirements to be stipulated that are not being attained through harmonised building products.” The VHI reserves the right to carry out a legal expertise.

In summary, the EPLF and the MMFA have come to the following conclusion, according to the Managing Director of both Associations, Peter H. Meyer: “The DIBt is treading a path that fundamentally seals off the German construction products market from the single EU market and creates new restrictions on competition. For Germany, the repercussions of this undertaking will be to massively drive up prices, to the detriment of all parties in the market, plus building developers and building companies, those who occupy or rent buildings, suppliers and the taxpayers. The politically desirable advantages of the obligation for EU-wide tendering for public construction projects will be undermined, especially in the case of small and medium-sized enterprises. Measured against the political goals of the single market, this new DIBt push cannot be compatible with European law – surely none of this can be the intention, whether for reasons of European, regulatory or consumer policy.”

The EPLF and the MMFA are echoing the statements of various industry experts who comment that the DIBt would do better to apply its scientific and professional skills to the processes of European harmonisation of standards and regulations for construction products, instead of torpedoing the political goals of the single market by going it alone nationally. They also concede, however, that this way of going it alone is also seen in France, Belgium, Sweden and other EU states and that it is important to get down to the root of the trouble and eradicate it.
www.eplf.com / www.mmfa.eu

Image captions:
elnd1603_b1: The European Court of Justice (ECJ) has withdrawn the Ü mark of conformity. – Graphic: EPLF
elnd1603_b2: Going it alone nationally: Collections of awards like this are very costly and cause confusion among consumers. – Photo: Meister/EPLF
elnd1603_b3: Michael Halstenberg, former head of a German government department and also as a lawyer specialised in construction laws: “In my view, the draft is once again incompatible with European law.” Photo: Michael Halstenberg
elnd1603_b4: Peter H. Meyer, Managing Director of the EPLF and the MMFA: “Instead of Germany operating alone, the DIBt had better apply its professional skills to European harmonisation.” – Photo: EPLF