In its judgment of 10 September 2015 , the Court of Justice of the EU (CJEU) has rendered a decision on a request for a preliminary ruling relating to the obligations under the REACH Regulation for articles containing SVHCs.
Under Article 7 of the REACH regulation, producers and importers of articles that contain a SVHC are subject to a notification obligation towards the European Chemicals Agency (ECHA) if (i) the SVHC is present in those articles in quantities totaling over 1 tonne per producer or importer per year and (ii) the SVHC is present in those articles above a concentration of 0.1% weight by weight (w/w). The notification does not apply where the producer or importer can exclude exposure to humans or the environment during normal or reasonably foreseeable conditions of use including disposal.
Article 33 of the REACH Regulation imposes an obligation of information towards professionals and consumers. Suppliers of articles containing a SVHC in a concentration above 0.1% w/w must provide the recipient of the article with sufficient information to allow safe use of the article including, as a minimum, the name of that substance. The same rule applies to articles supplied to consumers.
Until the CJEU rendered its decision, the text of the REACH Regulation was subject to diverging interpretations on the issue of whether the concentration threshold needed to be calculated by taking into consideration the whole article, or whether it also needed to include "sub-articles" forming that article.
An ECHA guidance document relating to this issue, published in April 2011 on its website, took the view that the whole article needed to be considered. By contrast, several national authorities (Austrian, French, Belgian, Danish and German) had adopted the opposite view, and required suppliers and importers to notify ECHA of each component ("sub-article") that would meet the conditions laid down under Article 7(2), and to provide information in accordance with Article 33 of the REACH Regulation in relation to the same.
In a dispute before the French Council of State (the French Supreme Administrative Court), two French federations of trading companies challenged the legality of an official Ministerial Notice issued by the French Minister for Ecology, Sustainable Development, Transport and Housing, in which the latter interpretation was explained. The Council of State referred the following question to the CJEU for a preliminary ruling:
"Where an “article” within the meaning of [the REACH Regulation] is composed of several elements which themselves meet the definition of “article” given by the regulation, are the obligations resulting from Article 7(2) and Article 33 of the regulation to apply only with regard to the assembled article or with regard to each of the elements which meets the definition of “article”?"
The CJEU, in line with the opinion of AG Kokott , provided an answer that is based on a distinction between the operators involved.
In respect of the notification obligation under Article 7(2) of the REACH Regulation, the Court held that:
- producers are to determine whether a SVHC is present in a concentration above 0.1% w/w of any article they produce;
- importers of a product made up of more than one article are to determine for each component article whether such a substance is present in a concentration above 0.1% w/w of that article.
In respect of the information obligation applicable to suppliers under Article 33 of the REACH Regulation, the Court held that this information applies when suppliers supply a product, one or more constituent articles of which contain(s) a SVHC in a concentration above 0.1% w/w of that article.
The difference between producers and importers is that it is not necessary to require the producer to report candidate substances in the component articles used, because ECHA obtains that information without there being any need to call on the producer of the entire article. If the products are manufactured in the EU or imported into the EU, the duty to provide information applies to the producer or the importer of the component article.
It is worth noting that the French Ministerial Notice did not make a distinction between producers and importers. Even though it is not the place of the CJEU (in the context of a reference for a preliminary ruling), to give a ruling on the compatibility of national law and EU law or to interpret national legislative or regulatory provisions, the judgment of the CJEU gives clear and straightforward indications in respect of the content of the French Ministerial Notice. This Notice is therefore likely to be amended once the French Council of State issues its final decision in the main proceedings.
The interpretation of the CJEU may, however, cause increases in administrative burden (and therefore costs) in terms of the number of articles to be notified and information to be provided, particularly on the operators dealing with products originating from outside the EU. On the other hand, it could also be seen as an opportunity and incentive for these operators to review the presence of SVHCs in their products, and consider a progressive substitution of SVHCs with safer substances.