In a press release published today, ECHA announces that registrants who fail to register by the May 31 2018 deadline might receive “help” in four exceptional scenarios.1 The four scenarios identified by the Directors' Contact Group, where companies might miss the 2018 deadline “through no fault of their own,” are:
- Completeness of dossiers: companies having difficulties providing data on time;
- Complex legal entity changes;
- Dependency on the lead registrant: lead registrant failing to submit a complete dossier on time; and
- Substance with no registration intentions: downstream users possibly taking on the role of importer or appointing another importer to do so.
This press release, published exactly four months before the May 31 2018 deadline, raises a number of issues, effectively adding to the uncertainty surrounding the consequences for companies failing to meet the 2018 deadline.
This initiative creates uncertainty regarding, first, its legal value. The Directors’ Contact Group is “an informal platform,” not provided for by the REACH Regulation, where ECHA, the European Commission and industry associations exchange views.2 This informal group issues “recommendations” or “communiqués,”3 which are not formal decisions of ECHA or of the European Commission and which are not binding or legally challengeable (although decisions of ECHA or national enforcement authorities adopted as a result may well be challengeable). It is by no means clear that a company relying on this initiative would be “exempted” from potential enforcement action. The Directors’ Contact Group has recently been used to adopt a recommendation on what may be seen as another questionable and politically sensitive initiative: the recommendation “to help small volume and SME registrants” register for the 2018 deadline.
Moreover, the available information on ECHA’s website on the four scenarios raises significant uncertainty both in terms of:
- The scope of the scenarios themselves: for instance, it is unclear if scenario 1 applies only to importers having difficulties obtaining compositional and analytical data of the substances in the mixture from their suppliers, or – as the wording of the press release suggests – if this would also apply more generally to “Companies that may have difficulties in providing data required in annexes VII and VIII.” In the case of scenario 3, it is unclear as of when a lead registrant will be considered to have “failed” its duties and will, according to the Directors’ Contact Group, “need” to be replaced by another potential registrant4; and
- The consequences of falling under one of the four scenarios: for instance if a company declares that it falls under scenario 1, the only announced consequence is that “ECHA may take this into consideration when setting a reasonable deadline to complete their dossier,” and only if that company has ordered tests “in a timely manner.”5 Similarly under this scenario the self-declaration “may be taken into account by the national enforcement authorities.”
Additional information on the conditions under which the four scenarios apply is published on a dedicated page on ECHA’s website6. However, this information can only be accessed by agreeing to the following declaration: “I claim to be confronted by one of the scenarios outlined and I declare that I meet the necessary requirements in order to make use of the solution as set out in these documents.”
In addition to the fact that companies are asked to declare that they fall under one of the scenarios before being able to access all the information about which conditions must be met to fall thereunder, this declaration raises an issue of transparency. Indeed, this information may be relevant to other actors than the companies having already ascertained that they fall under one of these scenarios – for instance, companies looking to determine whether it is their case. Also, can agreeing to the declaration be taken as an express acknowledgment that the deadline will not be complied with, potentially exposing the declarant to enforcement action?
Another issue which may arise in relation to the Directors’ Contact Group initiative is that of discrimination:
- Vis-à-vis companies that had to register in the earlier 2010 and 2013 deadlines: whilst the four scenarios are officially presented as “re-activated” and would allegedly have already been in place for the 2010 and 2013 registration deadlines, it is unclear to what extent this was usefully communicated or applied for the earlier deadlines and what were the actual legal consequences; and
- Vis-à-vis other companies struggling to meet the May 31, 2018 registration deadline, that may argue that also had to deal with difficulties in e.g. obtaining Annex VII and Annex XIII data or ensuring the lead registrant was ready to submit the data on time.