The contract includes the repair of concrete damage and the application of an acid-resistant coating. Some time after acceptance, defects appeared in the coating. In an evidentiary procedure, it was established that the contractor had made technical errors, in particular that the coating thickness was too low, and had used construction products that were not authorised by the building authorities. The client then demanded an advance payment of 340,000 euros to remedy the defects. The contractor claims that an ‘approval’ of the building materials used is not necessary, especially since a building authority approval for the ‘successor product’ is available. Also, with regard to the suitability of the building materials used, only the standards for the coating were relevant. Translated with www.DeepL.com/Translator (free version)
Reason
If the contractor is commissioned with concrete refurbishment and coating (here: an aeration tank in a sewage treatment plant), the construction products used must comply with both the standards for concrete refurbishment and the standards for coating. A construction product that has neither a CE approval nor a general building authority approval may not be used. The OLG therefore considers the use of building products that are not authorised under building regulations to be a defect in the work. If both concrete work and coating work are to be carried out, the construction products used must comply with the relevant standards for both trades, which is not the case here. The building authority approval for a ‘successor product’ cannot replace a building authority approval, nor can a ‘certificate of conformity’ issued by the manufacturer. In addition, the employee used a combination of building materials whose durability was not (yet) known at the time of acceptance, which constitutes a (further) work defect because the employee did not clearly and unambiguously inform the employer in advance about the risk of use and the employer did not agree to this. Translated with www.DeepL.com/Translator (free version)
Practical note
If several trades are to be carried out, such as concrete refurbishment and coating, the construction products used only have to comply with the relevant standards in each case. In addition, construction products only have to comply with the standards of neighbouring trades if they are actually exposed to several cumulative stresses, which is a more technical question of fact to be clarified.
A construction product that has neither a CE approval nor a general building authority approval may not be used, as construction work is defective under the terms of the contract for work and labour if construction products are used that do not comply with building regulations.
If there is no reliable information about the durability of a combination of building materials, the employer should be informed in advance about the risk of use.
