Introduction

On March 5 2015 the agriculture, forestry, environment and water economics minister presented a draft law to amend the Chemicals Act and the Biocidal Products Act. The proposed amendments are the last steps towards the final standardisation of the classification, labelling and packaging of substances and mixtures in accordance with EU Regulation 1272/2008 (the 'CPL Regulation'). The amendments simplify the term 'toxin' and shift the existing toxin purchase permit system to a simplified system of toxin purchase certificates.

CLP Regulation

On December 16 2008 the European Parliament and the EU Council adopted a new regulation on the classification, labelling and packaging of substances and mixtures which aligned existing EU legislation with the United Nation's Globally Harmonised System (GHS). The CLP Regulation helps to achieve the GHS's aim of standardising the descriptions and labelling of hazards worldwide. The use of internationally agreed classification criteria and labelling elements is expected to facilitate trade and contribute to global efforts to protect humans and the environment from the hazardous effects of chemicals.

The CLP Regulation has been in force since January 20 2009 and has diverse transitional periods. For instance, the deadline for substance classification expired on December 1 2010, whereas the deadline for mixture classification is June 1 2015.

2012 amendments

In February 2012 the government amended the Chemicals Act 2006 in order to introduce new provisions regarding toxins. In relation to chemical substances, the definition of 'toxin' (Section 35 of the Chemicals Act) was amended to fall within the new hazard classifications under the CLP Regulation. However, the old classifications under the EU Dangerous Substances Directive (Directive 67/548/EC) and the EU Dangerous Preparations Directive (Directive 1999/45/EC) continued to apply for mixtures.

As a second material amendment to the legislation on toxins, businesses were granted the right to be authorised to purchase toxins. Previously, only individuals working for a business could obtain authorisation to purchase toxins for business operations in the form of five-year toxin purchase licences. The 2012 amendments enabled businesses to purchase toxins by way of unlimited toxin purchase certificates under certain circumstances. In accordance with the amendments, toxin purchase certificates must be issued in the business's name.

The amendments considered that the use of toxins in business is often limited to specific – and thus largely definable – toxins. As such, the legislature's requirements in relation to toxins and the protection of health are satisfied as long as the business employs at least one person (on a permanent basis) who has specific expertise regarding the hazardous materials used by the business and detailed knowledge and skills in handling the relevant toxins.

The introduction of a new toxin permit holder shifted the professional qualifications necessary to handle toxins from general knowledge courses to appropriate vocational training or qualifications. This determination was made because vocational training for a trade (under the Vocational Training Act) or skilled practical activity in agriculture or forestry is expected to include training on handling toxins. According to the legislature, no further qualifications are required. To ensure a smooth transition to the new law, the old system concerning toxin purchase licences still applied.

Motivation behind draft law

The draft law seeks to simplify the rules regarding the classification, labelling and packaging of substances. In doing so, the law aims to improve the clarity, transparency and enforceability of the provisions governing toxins as of June 2015, when the CLP Regulation becomes fully effective. Further, the law seeks to simplify administrative procedures by reducing the level of complexity of the provisions regarding toxins.

Proposed amendments to Chemicals Act

As of mid-2015, the term 'toxin' will be subject only to the CLP Regulation's new classification system and will be simplified. This will reduce the administrative burden on executive bodies, businesses and professional users. The proposed amendments will complete the transition to the 2012 amendments to the Chemicals Act for the trade, agriculture and forestry sectors.

Further, in the medium term, the amendments will end the parallel existence of the old permit system and the new system of toxin purchase certificates by issuing only certificates and not renewing five-year toxin purchase permits once they expire. This will not only eliminate the parallel existence of toxin purchase permits and certificates and related application requirements, but also simplify the purchase system for businesses, professional users and authorities.

Since plant protection products have been comprehensively regulated throughout the European Union by way of a special law (which regulates their circulation and use), they will be explicitly removed from the scope of Section III of the Chemicals Act 1996 as of November 2015, except in respect of the Fumigation Safety Regulation (Federal Law Gazette II 287/2005). The Fumigation Safety Regulation applies to both biocidal products and plant protection products and includes specific regulations for handling particularly toxic fumigants which are not covered by EU law or any other national legislation.

Proposed amendments to Biocidal Products Act

The Biocidal Products Act (Federal Law Gazette I (105/2013)) previously included provisions governing toxins which were insufficiently aligned with those of the Chemicals Act and therefore involved a disproportionate level of effort for district authorities and executive bodies of Austrian provinces (chemicals inspectorates). In accordance with the amendments, the legislation on biocidal products will cover only those provisions governing toxins which directly originate from EU law (EU Regulation 528/2012 concerning the making available on the market and use of biocidal products).

According to EU Regulation 528/2012, biocidal products with particularly hazardous qualities may not be made available for public use. The proposed amendments repeal the previous provisions of the Biocidal Products Act which referred to the legislation on toxic substances in the Chemicals Act (ie, the provisions for biocidal products and other chemicals), thereby simplifying the regulations surrounding biocidal products. When applying for a certificate, applicants need not distinguish between a chemical and a biocidal product because the criteria for obtaining a certificate for biocidal products and other substances and preparations will be harmonised.

Comment

The proposed amendments to the Chemicals Act and the Biocidal Products Act seek to simplify the regulations for relevant participants (eg, businesses and professional users) as follows:

  • The relevant regulations will become more transparent (eg, simplifying the term 'toxin' and aligning biocidal products).
  • Businesses will have reduced burdens due to the switch to the certificate system (eg, businesses must report only the necessary toxins in order to obtain a toxin purchase certificate. If a business's requirements remain the same, it need not apply for a new certificate).
  • There will be no need to file applications for toxin purchase permits every five years (or at shorter intervals, where previously applicable).
  • Plant protection products will be removed from the scope of Section III of the Chemicals Act 1996.

For further information on this topic please contact Bernd Rajal at Schoenherr by telephone (+43 1 53 43 70) or email (b.rajal@schoenherr.eu).The Schoenherr website can be accessed at www.schoenherr.eu.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.