By Michael Green and Glen Jeffries
REACH is a regulation that concerns the registration, evaluation, authorisation and restriction of chemicals in the EU and REACH ensures that chemical manufacturers and suppliers that are producing and distributing “articles” categorised as “substances of very high concern” (SVHC), are obliged to notify the European Chemicals Agency (ECHA) and provide recipients with sufficient product safety guidance.
REACH defines an article as: “an object which during production is given a special shape, surface or design which determines its function to a greater degree than does its chemical composition”. Both the European Commission and the ECHA confirmed their position that the concentration of a SVHC had to exceed 0.1 percent in the entire article for obligations to apply. Therefore, it was the Commission and the ECHA’s view that the obligations applied only to a complete product and not the constituent parts of that completed product.
The recent ECJ decision, in relation to the disputed definition of an “article”, has essentially lowered the threshold at which the relevant obligations kick in, reversing the position held by the ECHA.
From Dispute to Decision
Five EU Member States (and Norway) did not agree that ECHA’s interpretation of the obligations under REACH ensured sufficiently robust protection for consumers and the environment. As such, two French trade bodies launched proceedings against the French Ministry of Ecology, Sustainable Development and Energy in an attempt to challenge this interpretation. The French Conseil d’Ḗtat (the Supreme Court) referred the matter to the ECJ to provide a ruling on this issue.
The ECJ decision was:
- REACH does not contain provisions specifically governing the situation of a complex product containing several articles. Consequently, there is no basis on which to draw a distinction between an isolated article and an article as part of a complex product (as the ECHA had done).
- It therefore follows that each article in a complex product must be subject to the relevant obligations under REACH.
- The ECJ confirmed that the fact it can be difficult for importers to obtain the required information from their suppliers as regards SVHC’s does not alter their duty to notify.
The ruling has presented chemical companies with additional difficulties and costs in fulfilling their obligation to notify the ECHA of SVHCs in articles greater than 0.1 percent. The duty to provide information may be particularly burdensome on importers, as they are now required to request increased amounts of information from their suppliers.
The ruling has been publicly questioned by retailers trade body EuroCommerce which has called for a moratorium on the enforcement of EC’s ruling, asking the European Commission “to see whether the burdens arising from the court’s ruling are proportionate.”
The impact of the ECJ decision on business is likely to be compounded, as the ECHA is continuing with its plan to add all chemicals which satisfy the SVHC criteria to a Candidate List for potential inclusion by 2020.