On 1 June 2008, most provisions of Regulation (EC) No 1907/2006 of 19 December 2006 concerning the registration, evaluation, authorisation and restriction of chemicals (REACH) (the “Regulation”) entered into effect. Thus, as from that date, companies manufacturing in or importing into the EEA (European Economic Area) one tonne or more of chemical substances per year have been obliged to register their substances. Unregistered substances are denied access to the market.
Registration entails inter alia the submission of information on the intrinsic properties of the substances (including toxicity, environmental effects, etc.) and, if necessary, the provision of other information, including test results.
Registration can be a burdensome and complicated task. Therefore, transitional rules have been provided for existing substances, i.e., extended registration deadlines provided the substance has been pre-registered. The preregistration period was from 1 June 2008 through 1 December 2008.
The registration deadlines for preregistered substances are the following:
30 November 2010 if:
- 1,000 tonnes or more of the preregistered substance are manufactured in or imported into the EU more per year;
- the preregistered substance is classified as carcinogenic, mutagenic or toxic to reproduction and is manufactured in or imported into the EU in quantities of one tonne or more per year; or
- the preregistered substance is classified as very toxic to aquatic organisms and liable to cause long-term adverse effects in the aquatic environment and is manufactured in or imported into the EU in quantities of 100 tonnes or more per year;
31 May 2013 if the substance is manufactured in or imported into the EU in quantities of 100 tonnes or more per year.
31 May 2018 if the substance is manufactured in or imported into the EU in quantities of one tonne or more per year.
Pursuant to Article 126 of the Regulation, the Member States shall enact provisions providing for penalties for violation of the Regulation and shall take all necessary measures to ensure that these provisions are implemented. The penalties must be effective, proportionate and dissuasive.
On 9 July 2009, the Belgian Parliament passed legislation providing for sanctions for violation of certain provisions of the Regulation or decisions of ECHA (European Chemicals Agency) taken pursuant to these provisions (the “Act”), amending the Act of 21 December 2008 on product norms. The sanctions have been applicable since 19 October 2009.
The police and the Federal Public Services for Public Health, Security of the Food Chain and the Environment are in charge of investigating and reporting possible violations of the Act and the Regulation. The authorities have already started investigating various companies.
Depending on the violation, the law provides for different types of sanctions.
Once a violation is found, the authorities can send a warning letter within 30 days’ time. No warning will however be issued in the event of a recurring offence or if the period to rectify the situation has already lapsed.
In certain cases, a warning will not be issued and the violation will be immediately sanctioned by an administrative fine or a criminal sanction (see below). In that case, an official report will be prepared which, depending on the severity of the offence, will be sent to either the public prosecutor’s office or a special agent appointed by the king. The prosecutor will then have three months to decide whether to pursue the matter. If a decision is taken not to prosecute, the special agent can still impose an administrative fine, which is generally done for less serious violations.
The authorities can impose the following administrative fines:
- for serious violations: 5% of the maximum criminal sanction (see below);
- for minor violations: 50% of the minimum criminal sanction.
The following distinction should be noted:
- for serious violations, the sanctions vary from a fine of EUR 880 to EUR 22,000,000 and/or a prison term of eight days to three years; if the infringer knowingly jeopardised human health or safety, the maximum fine and prison term can be raised to EUR 55,500,000 and eight years, respectively;
- for minor violations, the sanctions vary from a fine of EUR 286 to EUR 660,000 and /or a prison term of eight days to one year.
In addition, the courts can impose the following sanctions:
- import or export ban on the products that form the object of the violation;
- seizure or destruction of the products;
- seizure of any possible profits obtained through the violation;
- publication of the judgment;
- closure of plants or prohibition on exercising a certain profession.
The Act provides for heightened sanctions in the event of negligence or recurring offences.