On 7 July 2009, the European Court of Justice (ECJ) delivered its first judgement relating to the interpretation and validity of a provision of the REACH Regulations (REACH). This legal challenge concerned the interpretation and validity of Article 6(3) of REACH concerning the registration requirements applicable to “monomer substances”. However, it should come as no great surprise that the ECJ firmly rejected the legal challenge in its entirety.
The ECJ ruling originates from legal proceedings instituted in the High Court of Justice in the UK in 2007 by 4 companies (international polymer manufacturers and importers) challenging a number of the provisions of REACH. Whilst the English court rejected certain claims relating to the validity of Articles 5 and 6(1) of REACH, it referred questions concerning the interpretation and validity of Article 6(3) to the ECJ.
So, what was at issue here? Pursuant to Article 2(9) of REACH, polymers are exempt from the general obligation to register substances under Article 5 of REACH. Polymers are large molecules composed of repeating structural units of monomers – for example, plastics are polymers. Monomers are small molecules that may become chemically bonded to other monomers to form a polymer – for example, butene and propene are monomers.
The claimants stated that whilst polymers are exempt, Article 6(3) appears to require “reacted” monomers contained within imported polymers to be registered under REACH. They argued that, due to the polymerisation, monomers no longer exist as individual substances and do not present themselves to humans or the environment independently of the polymers in which they have been incorporated. The claimants therefore argued that the requirement to register “reacted” monomers was irrational, discriminatory and disproportionate.
Article 6(3) provides that “monomer substances” which are contained in polymers must be registered if two conditions are met: (i) if the monomer substance makes up more than 2% of the weight of the polymer; and (ii) if the monomer substance makes up one tonne or more per annum.
The ECJ clarified the interpretation of “monomer substance” in Article 6(3) by simply referring to the wording of other articles of REACH. The ECJ stated that “it is clear from the wording of Article 3(5) of the REACH Regulation that polymers are composed of monomer units, which are defined as monomer substances in a reacted form”. Therefore, “monomer substance” related only to “reacted” monomers which are incorporated in polymers.
The ECJ also commented that “unreacted” monomers would need to be registered according to Articles 6(1) and 6(2) of REACH in as much as they constituted substances on their own.
The ECJ stated that “the obligation to register monomer substances is designed to protect human health and the environment since those substances have inherent characteristics liable to have an adverse effect on them”.
The ECJ also rejected the claimants’ challenge to the validity of Article 6(3) of REACH, stating that “the obligation to register reacted monomer substances which are components of polymers does not go beyond that which is necessary to meet the objectives of the REACH Regulation”.
In conclusion, this preliminary ruling will disappoint the manufacturers and importers of polymers who were hopeful of some last minute relief from the obligation to register monomer substances under REACH. However, the decision cannot come as a big surprise. In essence, this was an attempt to create a new exemption for “reacted” monomers that clearly does not currently exist under REACH.
Polymer manufacturers and importers find themselves in the same position as manufacturers and importers of other “substances”. They must either register the monomer substance themselves or they can rely on the registration of the monomer substances by their EU monomer producer or the Only Representative of their non-EU monomer producer, as appropriate.