If you supply products in or into the European Economic Area which contain or might contain substances of very high concern (“SVHCs”) then the recent European Court of Justice (“ECJ”) case on articles is relevant to you. EuroCommerce, the European trade association has already called for a moratorium on enforcement.
If your products count as “articles” under REACH (Registration, Evaluation, Authorisation & restriction of CHemicals), then you have to assess whether your product contains any SVHCs over a certain threshold (0.1%). Up to now you have been able to make this assessment looking at the finished product as a whole. The effect of this recent case is that the 0.1% threshold for SVHCs must be calculated by reference to each component of an article rather than the whole article. This overturns previous European Chemical Agency (“ECHA”) guidance.
Suppliers of articles must communicate information down the supply chain about the presence of SVHCs over 0.1% weight by weight in the article. They must also respond to requests from consumers to provide the same information. (Article 33 REACH).
The duty to pass information down the supply chain is not restricted to producers and importers of articles but applies to all suppliers of articles including retailers.
Furthermore there are circumstances where producers and importers must notify ECHA if an SVHC is present in an article in a concentration above 0.1%. (Article 7(2) REACH).
For some time now there has been disagreement as to how the 0.1% threshold “in the article” should be calculated for this purpose. ECHA guidance states that the threshold applies to the whole article (as opposed to a specific component in that article). Most Member States have applied this interpretation (including the UK). However, some Member States (including Germany, France and Sweden) have not accepted this interpretation, saying that the threshold should be applied at component level instead.
On 10 September 2015 the ECJ ruled that the threshold should be applied to each article incorporated as a component of a complex product instead of to the finished product i.e. the threshold is to be applied at component level. This follows an earlier non-binding opinion from an ECJ advocate general.
The court confirmed that the duty to notify ECHA applies only to articles which the producer has made or assembled. Where a third party makes or assembles an article it must notify (e.g. a toll manufacturer). Equally an importer can have a duty to notify. The court considered that although it can be difficult for importers to obtain the requisite information from their suppliers, this does not alter their duty to notify.
The decision does bring certainty and ends the unsatisfactory position of different Member States taking different views on this subject. ECHA is expected to amend its guidance to reflect this position.
What should you do next?
This decision will affect everybody supplying articles in the EEA that have based their compliance on the assumption that the 0.1% threshold applies at article (rather than component) level. Suppliers of articles will now need to go back to their supply chains and seek additional information. This is against a backdrop where we know many in the supplier chain already struggle to obtain information.
This decision together with the upcoming final REACH registration deadline means it is an opportune time to review your REACH compliance generally.