Article 3(3) of the REACH
Regulation 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 that does its chemical composition.” The Regulation, however, does not
specifically address the situation of complex articles (articles produced by
assembling other articles), i.e., most products
marketed in the EU/EEA. The Commission, ECHA and a majority of Member States
took the position that
the 0.1% concentration threshold should be measured on the basis of the whole
article (e.g., a computer). In contrast, France, Belgium,
Germany and other Member States took the view that the concentration threshold
should be measured on the basis of each of the articles (e.g., components of a computer) composing the complex
article.
The Decision
The CJEU’s decision was in
response to a reference for a preliminary ruling from the French Conseil d’État in the context of proceedings
brought by French Federation of Businesses in the Trade and Distribution Sector
and the Federation of DIY and Home Improvement Shops. The proceedings concerned
the validity of a Notice of the French Ministry of Environment on the duty to
communicate information on substances contained in articles in accordance with
Articles 7(2) and 33 of the REACH Regulation. That Notice expressed the French
view that the concentration limits should be measured on the basis of each of
the articles composing a complex article.
Clearly influenced by the REACH Regulation’s objective to achieve a high
level of protection of human health and the environment, the CJEU’s decision
sides with the most restrictive interpretation and does not give much weight to
proportionality and international trade concerns. The Court takes the view that
under REACH an article “does not cease to be an article when it is assembled or
joined with other objects in order to form with them a complex product.”
According to the CJEU, an article remains an article “so as long as it retains
its shape, surface or design which is more decisive for its function than its
chemical composition or as long as it does not become waste.”
However, the CJEU distinguishes between the Article 7(2) notification
obligations that apply to producers and importers of articles and the Article
33 information obligations that apply to suppliers of articles. On that basis, the
Court allocates different obligations to the different operators taking into
account the REACH Regulation’s objective of a high level of human health and
environment protection, and its principles of industry (producer)
responsibility and substitution:
Article
7(2) of the REACH Regulation
·
EU/EEA producers must notify
ECHA only of the presence of Candidate List substances in “their” articles.
According to the Court, this means that producers are not required to notify
ECHA of the presence of Candidate List substances in the articles that they use
to assemble or produce their complex articles.
·
In contrast, importers
of complex articles must notify ECHA of the presence of Candidate List
substances in concentrations above 0.1% in any of the articles that compose the
imported complex articles. The Court bases this interpretation on the REACH
Regulation’s definition of importer, as “any natural or legal person
established within the Community who is responsible for
import” (emphasis added).
Importantly, the CJEU argues that any difficulties for importers to obtain
the required information from non EU/EEA supply chains do not affect the
interpretation of Article 7(2).
Article
33 of the REACH Regulation
·
Suppliers of complex articles
must provide their customers with information on the safe use of their
products, including at least the name of the Candidate List substance, if any
of the articles composing the complex article contain a Candidate List
substance in concentrations above 0,1%. The CJEU’s decision argues that this
interpretation is necessary to ensure the effectiveness of the duty to provide
information all along the supply chain through to the final consumer.
The CJEU’s emphasis on the
protection of human health and the environment and the principle of industry
responsibility and its little concern for the possible impact of its decision
on international trade is in line with the its prior ruling in C-558/07 S.P.C.M
and Others on the concept of monomer substances under the REACH Regulation. In
that case, the Court held that “in order to ensure genuine competition within
the Community, importers of monomer substances must be subject to the same
obligations as those to which manufacturers are subject or to similar
obligations which lead to an adjustment of costs.” In fact, as the Advocate
General stated in its Opinion, the
Court’s decision will “disseminate the standards established by the REACH
Regulation outside the European Union.”
While the decision is not likely to trigger immediate enforcement actions,
it will require importers and suppliers to reconsider how they assess the
presence of Candidate List substances in their articles. In effect, this
increases the pressure on foreign suppliers, and the administrative costs of
supplying information to professional users and responding to requests from consumers
in the EU/EEA.
*David Haughan is a Stagiaire
with Covington & Burling LLP.
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