Last month, Juliane Kokott, Advocate General at the Court of Justice of the European Union (Court of Justice), issued her opinion on the definition of an “article” under the EU Regulation on Registration, Evaluation, Authorization and Restriction of Chemicals (REACH). Kokott’s opinion defines an “article” under REACH to include “components” of a more complex article or product. This broad definition expands the obligations on suppliers of products containing hazardous substances in the EU. Obligations relating to component products have long been a divisive issue, pitting a small group of EU Member States against the Commission and a majority of EU Member States. If Kokott’s opinion is followed by the Court of Justice in its final ruling on the subject, suppliers of products could be obliged to notify the European Chemicals Agency (ECHA) of the presence of hazardous substances in the components of their products or to supply detailed information on safe use to consumers.
Under Article 7 of REACH, producers or importers of an article or product must notify ECHA of the presence of a hazardous substance in the article. The substance must be on the REACH “Candidate List” of intrinsically hazardous substances (Annex XIV) and must be present in a concentration that exceeds 0.1 percent weight by weight (w/w) (i.e., substance weight must exceed 0.1 percent of article weight). The total presence of the substance contained in all articles produced or imported must also exceed one ton per producer or importer per year.
In addition, under Article 33 of REACH, all suppliers of an article or product containing such a substance must provide consumers with sufficient information to allow the substance’s safe use. Again, the substance must be present in a concentration of over 0.1 percent w/w.
A “complex article” (such as a jacket) includes component articles (such as zippers). REACH does not say whether the threshold of 0.1 percent refers to the weight of the entire (complex) article or to the weight of each individual component article of the product. In some cases, the answer to this question would determine whether suppliers of complex articles (only) were obliged to notify ECHA and provide safety information, or whether this obligation would also apply to component articles.
Dispute Pending Before the Court of Justice
The French Council of State (Conseil d’État) has asked the Court of Justice for a preliminary ruling on this issue, i.e., an interpretation of the term “article” in the context of the requirements set out in Article 7 and Article 33 of REACH.
France, along with Belgium, Denmark, Germany, Norway and Sweden, has adopted the principle that the 0.1 percent w/w limit applies to each individual article within a complex article. This is the “once an article, always an article” principle.1 Therefore, in the example of the jacket zipper, if the hazardous substance concentration exceeds 0.1 percent w/w compared to the weight of the zipper, the zipper is deemed an article within the scope of the threshold, even though the concentration would be much lower if compared to the weight of the jacket.
The European Commission and the majority of EU Member States, on the other hand, support the principle that the 0.1 percent w/w limit applies to the entire article. This position conforms to a guidance issued by ECHA itself in 2011.2
Advocate General Opinion
In her recent opinion in this case of February 12, 2015,3 Advocate General Kokott supports the “once an article, always an article” principle. According to Kokott, where a component article retains a shape, surface or design of its own which determines its function to a greater degree than its chemical composition, it should still be regarded as an article despite its being integrated into a complex article.
In addition, Kokott makes a clear distinction between the obligation to provide information about the Candidate List substances in articles to consumers (Article 33 of REACH) and the duty to notify ECHA about their presence in articles (Article 7 of REACH). This distinction creates differing obligations for different types of suppliers.
The notification obligation under Article 7 of REACH applies to producers and importers of articles, but, according to Advocate General Kokott, their duties under Article 7 of REACH are not the same. A producer of an article needs to notify ECHA of the presence of the Candidate List substance in an entire, complex article if its concentration exceeds 0.1 percent relative to the article. By contrast, an importer needs to notify ECHA about the presence of the Candidate List substance in each component article where the substance’s concentration exceeds 0.1 percent, relative to that article. The rationale behind this distinction is the following: if a producer uses components for its article, those components will already have been notified to ECHA earlier in the supply chain by the producer or importer of the component. However, if an importer imports a complex article, ECHA may not yet be aware of the components. For this reason, the importer still needs to notify the component articles to ECHA.
The obligation to provide information about the Candidate List substances in articles to consumers under Article 33 of REACH is broader than the notification obligation under Article 7 of REACH. First, a key difference is that the information on the Candidate List substances is not notified to ECHA, but to recipients or consumers of articles. Second, every supplier must provide this information; not only producers and importers of articles, but also all subsequent actors in the supply chain, such as distributors and retailers. Third, each supplier of an entire article is at the same time the supplier of the component articles of which the article consists. As a consequence, a supplier must, at least according to Advocate General Kokott, provide its customers with the required information for the component articles as well, provided that the 0.1 percent threshold has been exceeded within that component.
However, based on a proportionality assessment, the Advocate General finds that where information—including the name of the substance—is not available to the supplier, there is no obligation to provide it. This interpretation relieves the supplier from the burdensome duty of examining each element of the complex article, when that information is not available. Kokott notes that this of course does not mean that an article can claim to be free of a substance—unless the supplier can prove that it is.
The Court of Justice must now make a final ruling in the case. It is not bound to follow the Advocate General’s advice but tends to do so in a majority of cases. In any event, industry will welcome a clarification of these supplier obligations.