REACH: ECJ tightens up SVHC requirements
ECJ: Requirements relating to SVHC (substances of very high concern) in articles assembled from more than one article do not refer to the assembled article but to its individual components.
In its judgment of 10 September 2015 (C-106/2014), the European Court of Justice specified the requirements of the duties to notify and provide information under Article 7(2) REACH and Article 33 REACH.
Decision by the ECJ
The ECJ ruled that every article, even if it is incorporated into a complex product, falls within the duty to notify and provide information if it can be classified as an “article” within the meaning of the REACH regulation and contains a substance of very high concern in a concentration above 0.1% of its mass.
In the ECJ’s view, the REACH regulation contains no provision regulating the particular case of a complex product made up of several articles combined. Consequently, in the Court’s view no distinction can be drawn between articles incorporated as components of an assembled article and articles that are present in isolation. According to the Court, this applies in particular since the REACH regulation also contains no provision from which it can be deduced that a manufactured or imported article loses its article characteristic upon being combined into complex products. In addition, the ECJ emphasises that the purpose of the REACH regulation, i.e. to ensure a high level of protection for human health and the environment, supports the position that firstly the ECHA should be informed as comprehensively as possible about substances of very high concern in products and secondly a duty to provide information should also be guaranteed throughout the entire supply chain to the end consumer.
However, the ECJ then distinguishes between the duties under Article 7(2) REACH and those under Article 33 REACH:
1. Duty of notification under Article 7(2) REACH
Regarding the duty of notification under Article 7(2) REACH, the ECJ stresses that manufacturers of (complex) products must state the SVHC content only in relation to the products specifically manufactured by them when the SVHC exceeds 0.1% of its mass. “Duplicate notifications” are to be avoided in this respect. For importers of (complex) products there is thus no easing of requirements, as the legal duty to notify with regard to each individual imported article must be met for each article with SVHC in concentrations above 0.1% w/w.
2. Duty to provide information under Article 33 REACH
In relation to the duty to provide information under Article 33 REACH, the ECJ emphasises that both manufacturers and importers of (complex) products must provide information on SVHC in a concentration above 0.1% w/w for each one of the articles supplied with the (complex) product. Unlike as set out in the Advocate General’s conclusions, the ECJ did not limit the duty to provide information to the specifically “available information”. Thus for all market players there is (still) a need to gain a clear picture of any SVHC contained in (sub-) articles so they can fulfil their own duties to provide information.
In practice this means that each supplier of a (complex) product must have reliable information on SVHC in a concentration above 0.1% w/w in all sub-articles in order to fulfil their duty to provide information to downstream players in the supply chain or to consumers.
Impact on communication in the supply chain
The ECJ judgment of 10 September 2015 therefore has far-reaching consequences for communication in the supply chain. It is still the case that in principle the supplier is responsible for providing information on SVHC in (sub-) articles. The customer can therefore essentially rely on the supplier properly fulfilling this requirement. However, to avoid the risk of sanctions (note: breaches of the duties to notify and provide information can be penalised with fines of up to €50,000 in every individual case) customers should ensure proper implementation by readjusting the contractual framework conditions and also periodically sending reminders of the respective duties as a precaution.
It should also be taken into account that the ECHA has already announced it will revise the guidelines on requirements for substances in products. Companies concerned should therefore already make a note to carefully read the new version of the guidelines once it is published and make readjustments if necessary. It is likely that in practice the implementation of the ECJ judgment will also be examined intensively by the authorities once the ECHA guidelines are updated, if not before.
Any questions? Please contact: Maria König or Martin Ahlhaus
Practice Group: Regulatory & Governmental Affairs, Commerce & Trade
Further reading: REACH: further restrictions on textile products and clothing planned – first application of the simplified procedure