REACH: ECHA publishes analytical methods – also a benchmark for criminal compliance
The chief objective of the enforcement project REACH-EN-FORCE 4 is to increase checks on whether restrictions are being complied with in 2016. The European Chemicals Agency (ECHA) has already announced that particular attention is to be paid to 14 selected restriction entries set out in Annex XVII of Regulation (EC) No 1907/2006 (REACH) (see Noerr News of 4 February 2016). In this context, the ECHA has now published a compendium of more than 100 recommended analytical methods which in their estimation can be used to check compliance with the restrictions set out in Annex XVII of the REACH Regulation.
The purpose of the compendium is mainly to support the competent authorities of the Member States in the context of the REACH-EN-FORCE 4 project, which is already running, and to provide standardised benchmarks. During the project, the enforcement authorities will concentrate on checking compliance with restrictions for 14 substances occurring in consumer products in a total of 29 European countries. Nevertheless, the compendium now published also has real practical relevance for the internal compliance mechanisms of companies.
On the one hand, the restrictions first and foremost prohibit products that fail to comply with the relevant provisions set out in Annex XVII of the REACH Regulation from being placed on the market. Thus the relevant provisions have to be observed in full at all levels of the supply chain, and breaches can impact equally on every player in the supply chain. The main reason for this is that according to Article 3(12) of the REACH Regulation the term “placing on the market” covers all acts “whether in return for payment or free of charge”, and even simple physical imports of goods into the customs territory of the Community are deemed to be placing on the market.
At the same time, it is important to be aware that under section 5 of the German Chemical Sanctions Regulation the relevant breaches of the restrictions under Annex XVII of the REACH Regulation are prosecuted as criminal offences in Germany. This means that in the event of potential breaches of restrictive provisions, there is always a direct risk for all players in the supply chain of being held criminally liable. Unfortunately, this risk has materialised on a more frequent basis in the last two years in relation to the restrictions already existing under Annex XVII of the REACH Regulation due to the changes in enforcement practices. It will only be possible to reliably deal with this risk in corporate practice if businesses make sure that the legal requirements are complied with by using suitable review, control and documentation mechanisms. Especially in this context, based on this newly available compendium of analytical methods, companies are certainly advised to take a critical look at whether or not they should realign their current practices. Starting now, it will be necessary to ensure at least that actions taken by businesses take into account the analytical methods set out by the ECHA – for instance when carrying out any required random checks, instructing testing organisations or checking confirmations from suppliers. Otherwise, risks exist not only in the shape of orders by the regulatory authorities prohibiting products from being placed on the market or contractual disputes with customers, but also a direct risk of being found criminally liable. As always, if an authority detects the presence of a hazardous substance, the entire defence strategy in the correspondence with the authorities should be designed to prevent the matter from being assessed as criminally relevant from the outset.
Compendium on analytical methods to enforce restrictions Methodology for recommending analytical methods to check compliance with REACH Annex XVII restrictions
Any questions? Please contact: Martin Ahlhaus or Dr Arun Kapoor
Practice Group: Litigation; Regulation & Governmental Affairs; Commerce & Trade