NCE RK is against adoption of technical regulations of EAEU "On safety of buildings, building materials and products"

The disagreements of the member-states of the Eurasian Economic Union (EAEU) in the establishment of unified supranational requirements for construction projects (buildings and structures) hinder the creation of a common market of building materials and products, the requirements for which were generally agreed by the parties.

Eurasian Economic Commission, together with some Members of the EAEU is determined to adopt common technical regulations "On safety of buildings, building materials and products", which, in addition to the establishment of mandatory requirements for safety of construction materials will be distributed on buildings and structures and complexes of any purpose, forms of ownership, subordination, at all stages of their life cycle, as well as planning and development of territories, cities and other settlements.

During the discussion of the draft of the technical regulations in response to the legitimate concerns of the Kazakh side the Eurasian Economic Commission offered the Republic of Kazakhstan to restrain from adoption of the technical regulations for an indefinite period.

Certainly, it is very difficult to achieve a productive dialogue in this format of discussions.

In turn, the National Chamber of Entrepreneurs "Atameken" presented the key arguments, according to which the aforementioned technical regulations can’t be accepted by the Kazakh side.

First of all. Buildings and facilities, constructed on a permanent basis on the land within the sovereign territory of a Member State of EAEU, are not intended for release into the general circulation on the regional market (i.e. are not objects of  international or regional trade between the countries and can’t cross the borders of countries).

The establishment of mandatory requirements on safety of buildings and structures (real estate) is an exclusive competence of each Member State of EAEU.

It’s worth noting that construction sites are regulated not only by the national building legislation, but also by a large number of other types of national legislation.

The second point. One of the key points of the draft regulation "On the safety of buildings and structures, building materials and products" is a provision on implementation in EAEC of common and mandatory construction regulations, which must be applied by all the countries.

The idea of the developers was that  the draft regulation, these standards are designed to establish mandatory requirements for buildings and facilities in order to ensure their safety.

Further implementation of these mandatory standards in practice will be implemented through compliance with the rules of design and construction, applied on a voluntary basis.

It is expected that the list of building codes and the list of codes of practice will be approved by the Council of the Eurasian Economic Commission (EEC). The EEC Council will also approve the order of development of rules and regulations, the procedure of their approval or submission to the EEC, acceptance and application by the Member States, as well as the development and approval of the list of such documents.

At first glance, this scheme (security parameters of buildings and structures are binding documents, and the rules of their implementation are voluntary) is very similar to that applied in the EU within the framework of the Eurocodes.

It should be borne in mind that application of  mandatory building standards of EAEU and building regulations of EAEU as an evidence is impossible, because SN and SP are absent, as well as guidance documents, defining the requirements for their structure, content, procedure of development, coordination and approval.

To date, none of the bodies on standardization neither in the CIS nor in the EAEU are not entitled with the right to adopt SN and SP of EAEU, and the EAEU Treaty defines interstate standards as an evidence base for the technical regulations defined only, and in their absence - national standards of member states.

In general, inappropriateness of the technical regulations, the requirements of which are built in the absence of virtual instruments.

Third of all, as it was noted by NCE, the practice of technical regulation of EEC in line with pro-Russian protectionism, as well as pro-activeness of the Ministry of construction and housing and communal services of the Russian Federation in the development and promotion of the draft allows to predict with confidence substantial contradictions in the approach proposed by the draft technical regulations and approach used in the EU for all their apparent resemblance.

It becomes a norm for EEC to include standards in the documents of the supranational system of technical regulation, which establish barriers to access of foreign products to the markets of member countries, as well as protect domestic producers from competition intra.

This is achieved by establishing specific requirements for products, which, under the pretext of security require the use of only certain domestic components and assemblies, materials and equipment, raw materials and semi-finished products, often produced by only one manufacturer (usually Russian, rarely Belarusian), or outdated test methods and testing equipment of the same origin.

This approach has nothing to do with correct technical regulation in the modern European sense or understanding of the "Agreement on Technical Barriers to Trade" WTO. Therefore, the draft technical regulation won’t solve the challenge of Kazakhstan's transition to the Eurocodes, but in the case of its adoption and implementation will make it really impossible to make this shift in the future.

By the way, that the Kazakh side in the preparation of the relevant section of the EAEU Treaty has insisted on the restoration of the right of Member States to execute technical regulation of certain types of products independently at the national level.

As you know, the President Nursultan Nazarbayev in his Plan for the nation – “100 steps to implement five institutional reforms” stressed the need for the introduction of the Eurocodes to replace obsolete building codes (SNIP), applied during the Soviet period. The adoption of the new standards will allow to apply innovative technologies and materials that enhance the competitiveness of Kazakhstani specialists in the construction market, as well as to create an opportunity for release of Kazakh companies to foreign markets in the field of construction.

This means that the Republic of Kazakhstan should go to the European system of regulation of the construction industry.

It should be noted that in the European Union there is no concept of supranational regulation of requirements for buildings and facilities, and there are no uniform building standards. The only supranational document of the European Union is a technical regulation #305 / 2011, which establishes requirements only to building materials and products.

According to NCE, the adoption of technical regulations "On safety of buildings and structures" at the supranational level and the introduction of mandatory interstate construction standards in the processes of design and construction of buildings and structures of direct application is characterized by the regional centralization in technical standardization in the construction industry of sovereign states.

Definitely, that such centralization will create unacceptable dependence of national programs on development of the construction sector and building science of the member states on the Eurasian Economic Commission and its structural bodies. In addition, national governments lose autonomy in decision-making to reduce or to increase the level of safety required for the construction of objects located on the sovereign territory of a member state party, though they pose no threat (dangerous risks) to other parties.

With regard to free movement within the EAEU of design and survey services and processes associated with the construction of objects, then, according to NCE, the view that the introduction of uniform building regulations on the territory of the EAEU will ensure freedom of movement of services in the construction industry, is wrong. In this case, there is a substitution of concepts, namely, the concept of a single market of services in the construction industry of EAEU is replaced by the concept of uniform building standards of EAEU. Such approach contradicts to common sense and practical application of the supranational and national legislation in the framework of an economic union by two reasons.

According to the Treaty on the EAEU, EAEU member states have the right to develop, to adopt and to apply their own building regulations, which set out the specific requirements "necessary to protect the life or health of humans, animals or plants" on its sovereign territory. In this case, no single technical regulations and building standards will help to get around these special requirements, as the right of a member of the EAEU to impose restrictions is stipulated by the EAEU Treaty, which by its legal force exceeds all technical regulations and other rules of the EAEU.

In other words, freedom of services in the domestic market of EAEU in the construction industry can actually be achieved not through common construction standards, but through the harmonization of the national legislation, governing the provision of services, and a manifestation of good will of national governments not to accept and to apply the legislative and administrative measures, restricting the freedom to provide services.

International experience provides ample evidence that the freedom of provision of services in the construction market is perfectly achieved without common (interstate) building standards. Neither in Europe nor in the United States or in other economically developed countries, there are common (interstate) construction standards, but, nevertheless, they managed to ensure full freedom of services for foreigners. American, Japanese and other companies design and build in Europe, European companies - in America, etc. In this case, each country has its own national building legislation and applies its building standards, which have nothing to do with the rules of the country, the resident of which is the foreign company, providing services.

Based on the above, NCE RK came to certain conclusions.

First of all - Uniform Building Standards in EAEU will not ensure freedom of provision of services in the construction industry of EAEU. This myth is based on a misunderstanding of the functioning of the legislation, which has no scientific basis and is not supported by factual evidence.

Second of all, the freedom of provision of services in the construction industry is stipulated by a complex legislative and administrative measures rather than the introduction of a common technical regulation on safety of construction works and transition to uniform building standards.

And, third off all, survey, design, construction and other services in the construction industry are subject to the same principles of freedom of provision of services as any other services. Therefore, at the supranational level the freedom of provision of services in the construction industry is governed by general rather than sectoral legislation, as in the EU directive number 2006/123 / EC “on services in the internal market". (Branch legislation does not apply to issues of freedom of provision of services, and deals with specific procedural and technical features of the provision).

The question of what is more important for the Republic of Kazakhstan to adopt a uniform regulation only for the sake of the integration process or defend its own right to regulate objects on sovereign territory, thereby protecting the interests of the national economy, remains unanswered.