FANTONI: SUMMARY OF THE 2ND CLAIMANT STATEMENT WITH THE ADMINISTRATIVE COURT IN COLOGNE_GERMANY
In the aforementioned court proceedings and following the receipt of a reply filed by the Federal Republic of Germany (the “Defendant”), the claimant, Fantoni SpA (the “Claimant”), has been asked by the administrative court in Cologne to file a second statement until 4 January 2021. The Claimant has prepared this second statement (the “Statement”) which is accompanied by an expert’s opinion and includes the following argumentation:
1. Unsuitability of EN 16516 A large part of the Statement deals with the unsuitability of EN 16516 respectively the individual test parameters and their different effects on real living space. The main argument of the Statement refers to the fact that EN 16516 was developed to determine the emissions of volatile organic compounds (VOC) and is therefore not applicable to formaldehyde emissions. However, formaldehyde belongs to the group of very volatile organic compounds (VVOC) and therefore cannot be tested immediately. This unsuitability was already recognized during the development of EN 16516 and for this reason an exception was made for formaldehyde emissions within EN 16516. In this case, reference is made to the already existing EN 717-1. According to EN 16516, emissions are identified by determining an area-based emission rate, because emissions of VOCs are continuously decreasing. However, formaldehyde emissions behave differently. The decrease of the emissions is not continuous, but after a few days of the test period a value is reached which does not change significantly anymore (so-called equalizing concentration). This special behaviour cannot be determined reliably under the conditions set by EN 16516. In addition, the German Chemicals Prohibition Ordinance (ChemVerbotsV) is also based on the compensating concentration within the limit value, so that a conversion of the area emission rate determined in EN 16516 into the compensating concentration is still necessary, which leads to further uncertainties. In this context, the Statement will also point out that the test according to EN 16516 has an increased probability of scattering in the measurement result. These are based in particular on the greater variances in the test conditions, related to temperature and relative humidity.
2. Lack of need for action A further important argument of the Statement is the lack of need for action by the Defendant. First of all, the Statement will cite studies that prove that the limit value applicable in Germany is undercut by an average of about 70%, so that there is no reason to intervene. In addition, the Statement deals comprehensively with the individual test parameters of EN 16516 and EN 717-1. In particular, the Statement demonstrates that the load factor of 1 m²/m³ in EN 717-1, which was offended by the Defendant, was not arbitrary but was based on the building requirements. In addition, the Statement will show that the tests within the chambers are basically carried out on the basis of uncoated wood-based materials and which reduction factors would result from the coatings for the real living space. With regard to the air exchange rate of 0.5/h within the test conditions of EN 16516, the Statement outlines that due to the room volume of 30m³ in the test chamber, a hygienically conspicuous climate would already be reached after one and a half hours, because the fresh air supply is only 15m³/h. The fresh air requirement of a person is however at least 20 - 25m³/h. Furthermore, the Statement challenges the Defendant's argument that a change in the air exchange rate was necessary because of the better insulation of buildings with the above argument. The fact that the houses are denser and less fresh air can enter from outside makes it all the more necessary to achieve a hygienically safe climate, which is not the case with EN 16516.
3. Binding nature of the contested publication; right defendant With regard to the argument of the Defendant that the announcement of the new test procedures is not binding, the Statement takes into account that the binding nature already follows from the meaning and purpose of the law. Since the German Chemicals Prohibition Ordinance (ChemVerbotsV) stipulates that hazardous substances may only be imported if it has been proven that the limit value is not exceeded, this already constitutes a binding obligation. As the limit value to be observed has been published in Annex 1 of the German Chemicals Prohibition Ordinance (ChemVerbotsV), but not the procedures provided for this purpose, the announcement and Annex 1 are to be regarded as a unit, which together lead to a binding effect for the manufacturer. For this reason, the Statement also justifies the action against the Defendant. The manufacturer is obliged to comply with EN 16516 or to multiply test results based on EN 717-1 with a factor of two (2) without further action by the (federal or state) authorities. The announcement as such is self-executing. The German Chemicals Prohibition Ordinance (ChemVerbotsV) finally regulates which substances can be imported into Germany under which conditions. A leeway of the authorities is not justified, so that there is no obligation to take action against other authorities than the Defendant first.
4. Lack of notification to the European Commission The argument of the defendant that the notification of the German Chemicals Prohibition Ordinance (ChemVerbotsV) leads at the same time also to a notification of the announcement from the Federal Ministry of the Environment about the analytical test procedures cannot be followed. This is due to the relationship between the two. The notified German Chemicals Prohibition Ordinance (ChemVerbotsV) alone has not yet caused a change in the limit value to be observed. This is still at 0.1 ml/cbm. The factual reduction of the limit value by half has only occurred due to the designation of EN 16516 as the new reference standard or the obligation to multiply the compensating concentration by a factor of 2.0 in a test according to EN 717-1. Since only at this time the confirmation with the previous regulations in the European Construction Products Regulation (CPR) did not exist anymore, the announcement should have been notified to the European Commission.
5. Violation of the European Construction Products Regulation (CPR) Regarding the violation of the European Construction Products Regulation (CPR), the Statement takes into account that the determination of the limit value for formaldehyde emissions is an essential requirement and not only a performance specification within the meaning of the CPR. Since reference is made to EN 717-1 for the determination of this essential characteristic, the Defendant has no authority whatsoever within the framework of the German Chemicals Prohibition Ordinance (ChemVerbotsV) to mention EN 16516 as a new reference standard, because this area has already been harmonized. Since the introduction of EN 16516 effectively halves the limit value to be observed, it is a restriction for foreign manufacturers who want to import their products into Germany. In this regard, the Statement also points out that the multiplication factor of two (2) set by the Defendant has not been validly tested. As shown by the separate expert’s opinion, a comparative examination of the two chamber tests was only carried out on chipboard and a deviation factor of 2.1 was determined in this test. Further tests on other wood-based materials have not been carried out, so that the multiplication factor is already not reliably determined.
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