A recent study commissioned by the European Defence Agency (EDA) considers the impact of REACH and CLP on the EU defence sector (both industry and governments) since they entered into force in 2007 and 2009 (respectively).

In addition to analysing the impact of REACH and CLP the objectives of the study were to:

• offer practical proposals to improve the implementation of REACH and CLP, including proposals which the European Commission can take into account in the REACH Review 2017; and

• provide information on the impacts of other chemical legislation (especially that regulating biocidal products, ozone depleting substances and persistent organic pollutants) and their interaction with REACH and CLP and provide proposals for improvements.

The overarching goal of the study was to provide proposals to the European Commission, EU Member States, Ministries of Defence and the defence industry on how to achieve the win-win solution of ensuring a high level of protection of human health and the environment while enhancing competitiveness and innovation of the European Defence Industry (including Member States’ Armed Force).

The study’s findings include that:

  • all defence domains; aerospace, munitions, land, naval, nuclear and electronics are heavily impacted by REACH but domain-specific impacts may vary (e.g. munitions are particularly impacted by REACH and CLP due to them being “explosive articles”)
  • security of supply is a major concern given the defence industry’s very complex supply chains
  • unpredictability surrounding the inclusion of substances of very high concern (SVHCs) in the authorisation list creates substantial uncertainty and risk. In addition REACH authorisation timelines do not match the long equipment lifecycles of the defence sector. (See briefing: REACH – Authorisation – The next challenge?)
  • complying with the requirements regarding SVHCs in articles is a major challenge for complex defence equipment
  • the future impacts of REACH are expected to be significantly higher. The main reasons are the 2018 REACH Registration deadline (which impacts manufacturing/imports over 1 tonne per year), the European Court of Justice’s clarification of the requirements regarding SVHCs in articles (See briefing: ECJ overturns ECHA Guidance on SVHCs), authorisation decisions regarding Cr(VI) and the sunset date in 2017 (date from which supply and use of the substance is prohibited unless an authorisation has been granted) and the inclusion of additional substances on the SVHC and authorisation lists
  • the “defence exemption”, (Article 2(3)) which provides an exemption from REACH in certain limited circumstances, generally does not provide an effective option where more than one Member State is involved in the supply chain of a product.

Due to the impacts identified in the study there is a significant risk of maintaining cost effective military capabilities. Increased cost is unavoidable and some Ministries of Defence strongly believe that REACH may impact the actual operability of the Armed Forces. They see a strong risk of EU defence system development and maintenance becoming unsustainable because of the timeframe difference between REACH requirements and defence product lifecycles.

The study’s recommendations include that:

  • more time and resources be provided for research and development of substitutes to SVHCs
  • a consistent approach is adopted in EU chemicals and product legislation to address defence specific issues
  • defence specific solutions are adopted in REACH such as a simplified application for authorisation process in certain circumstances.

The European Defence Agency has informed relevant stakeholders of the outcome of the study and is liaising with them to support further examination and implementation of the proposals. The proposals addressed to the European Commission serve as the European Defence Agency’s input into the REACH Review 2017.

Despite the Brexit vote, the UK remains bound by REACH and other EU legislation whilst it remains in the EU. The Government has indicated its intention to convert EU law including REACH into UK law “wherever practical”, on Brexit, This means having a form of UK REACH, and there are many questions over what that will ultimately look like, whether it will be more or less rigorous than EU REACH and what the associated compliance costs will be. It is unclear whether the setting up of a parallel system would lead to duplication of compliance costs and whether any UK registrations/authorisations would be recognised in the new EU. Consideration now of the potential impact of Brexit and the issues raised in the study is therefore very timely.