Making your data confidential

The REACH regulation has the objective to provide more transparency about chemicals. At the same time, the regulation recognizes registrants’ interests of keeping data confidential.

Article 118 REACH refers to sensitive information that is not automatically published, e.g. details of a preparation, tonnage or information about the supply chain. In a case of an emergency, e.g., the agency is allowed to publish this information in order to protect human health, security or the environment.

According to Article 119 REACH, there is the possibility to claim confidentiality for a few additional parts of the technical dossier.
If so, ECHA requires a justification that a publication would be harmful for the registrant’s or any other concerned party’s commercial interests. Just stating that the data is a “company secret” is not accepted by the Agency. The justification has to be detailed and plausible.

Confidentiality causes extra fees up to 4.500 € per criteria for the registrant. Rebates for Joint registrations and SMEs are granted.

If confidentiality is claimed for data in the joint part of a lead dossier, each member of the joint submission has to submit his own justification for the confidentiality claim and has to pay the reduced fee for joint submissions.

For further information, please view ECHA’s guidance document for making data confidential:

http://echa.europa.eu/doc/reachit/dsm_16_confidentiality_claims.pdf

Copyright Levies on Mobile Phones – pay or argue?

The constant technical developments in the sector of consumer electronics force the Collecting Societies to adapt their scope of levies products. Especially mobile phones and so called Smart Phones are part of this progress. Because of their meanwhile enormous storage capacity (and thus the use of the phones as a multifunctional entertainment tool) mobile phones are for some time and in numerous European countries in the focus of attention of the collecting societies.

In Germany the competent Collecting Society ZPÜ (Zentralstelle für private Überspielungsrechte) surprisingly published new tariffs on mobile phones in the month of July. In the press release they declared to publish these tariffs in the German Federal Gazette (Bundesanzeiger).

Until then the ZPÜ only claimed copyright levies on mobile phones according to the “old law”. The press release was the first occasion that they named a concrete amount of those levies under the “new law”. Furthermore they changed the calculation basis. With regard to the putative results of an empirical study, the new tariffs are separated into Mobile phones with and without touch screens. This calculation is based on the fact that all Mobile phones will include a MP3-functionality.

– Mobile phones with touch screen: 11 € (excl. VAT)
– Mobile phones without touch screen: 4 € (excl. VAT)

In addition, the ZPÜ deviates from the common interpretation of the transitional rules. Previously they argued the “old law” should be valid until the end of 2009. In the press release ZPÜ made the new tariffs retroactively effective as of 2008.

However, these tariffs are only claims by the Collecting Society, the Industry Associations still have the opportunity to dispute these claims and negotiate with the ZPÜ. This is ongoing, K&L keeps you informed.

Out of scope

For another analogue device one needs no copyright tariff anymore: Sony will no longer produce its Walkman cassette player. Over the past years, Sony reported decreasing sales; therefore phasing out of the production was a logical consequence. According to this managerial decision, we can see the natural development of the scope for copyright levied products. New devices will be levied, older technologies will exit this field. Rapid changes especially in the CE-Sector are leading to a constant adaptation and modernisation of the scope and, accordingly, to the necessity of a constant monitoring. It is, however, to clarify for every single company how such a development will influence its reporting and financial planning in the future.

http://www.spiegel.de/netzwelt/gadgets/0,1518,725030,00.html

Pay your ECHA registration fees in time!

Paying the registration fees to ECHA in time is an important part of a successful registration.
For different types of registration there are different payment periods.

Registrations of pre-registered substances that are submitted in the two months before closing of the official registration period (December 1, 2010; June 1, 2013; June 1, 2018) have an extended payment period of 30 calendar days after receiving the notice to pay.

For any other registration a short payment period of 14 calendar days, after receiving the notice to pay, is granted by ECHA.

In order to achieve payment on time it is necessary to
– promptly check all communication coming from ECHA
– organize, among the current accounting, a way to carry out payment
  in a short time

As payment administration is automatically carried out by REACH-IT, ECHA recommends the following rules for a problem-free transaction.
– pay one invoice per payment (single payment)
– indicate the correct reference number (8-digit invoice number)
– pay exactly the invoiced amount
– instruct your bank to send a SEPA payment with shared cost

ECHA will grant a second payment period if the payment has not been completed within the first time period.

If complete payment will not take place within this second time period, the registration has failed. There is no reimbursement on already paid fees referring to this registration.

For more information about payment, ECHA has published frequently asked questions.

http://echa.europa.eu/reachit/reachit_faq_en.asp

Printer levies in Germany: Federal Constitutional Court repeals judgment of the Federal Court of Justice

September 30, 2010, the Federal Constitutional Court of Germany (BVerfG) decided about a constitutional complaint of the Collecting Society regarding the copyright levies on printers. The decision of the Federal Court of Justice (BGH) of December 6, 2007, is thereby obsolete and the claim is remanded. It hereby concerns the levies for devices sold up to December 31, 2007. For all devices sold since then, a new agreement is effective.

The Federal Constitutional Court considered the complaint by the Collecting Society as reasonable, because of procedural errors of the BGH. According to the verdict, the Federal Court of Justice ignored the obligation to refer to the European Court of Justice which means a violation of the right on a lawful verdict (Art. 101 I,2 GG).

Due to the lack of the interpretation of § 54a I (old version) in relation to the right on property (Art.14 GG), the Federal Constitutional Court repealed the judgment. In their decision, BVerfG deny the relevance of Art.14 I GG. The Federal Constitutional Court recommends in its decision lower tariffs.

Now the Federal Court of Justice has to pass a new verdict in respect of the complaint of the Constitutional Court. If they affirm an interpretation of § 54a I (old version) in relation with a violation of Art. 14 I GG, there is no necessity for a referal to the ECJ.

http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg10-080.html

SME or not?

ECHA pays specific attention to small and medium-sized companies.

In order to avoid potential barriers for SMEs when it comes to fulfilling their REACH obligations, ECHA offers support and navigation in order to help SMEs through the registration process. Auto-fill-in forms are planned by ECHA in order to enable SMEs to fill in REACH-IT web forms with one click.

Additionally, registration fees small and medium-sized enterprises are drastically reduced:

• 90% reduction for micro-enterprises
• 60% reduction for small enterprises and
• 30% for medium sized enterprises

BUT does your enterprise really fulfill the criteria for a SME, based on the declaration of the European Union? (2003/361/EC)

ECHA helps to find out whether or not you qualify as a SME by an Electronic SME test.

False statement already given?

Enterprises that have already pre-registered as a SME and found out they were not according to the EU criteria, HAVE TO change their Status in REACH-IT before submitting a registration. Otherwise, administrator fees may be charged for making false statements.

If an enterprise has already registered a substance as a SME by mistake, it should do the following:

1. Inform ECHA by filling the form at REACH-IT: Specific submission to ECHA
2. Change the status in REACH-IT before submitting the next registration

Take the time to make use of the facilitating tools available and avoid unnecessary fees!

Profits for „early birds“

ECHA informs about advantages for early registrants for the first registration period.

Early Lead Registrants are privileged with regard to support from ECHA.
In order to promote early registrations and to avoid a last-minute rush, ECHA informs that early Lead Registrants’ requests will be addressed on a priority basis, if necessary by phone.

Due to the REACh regulation, dossiers submitted before 1 October 2010 will be checked on completeness within three weeks. Submitted so early, dossiers found incomplete after re-submission will even have the chance to be re-submitted again before the registration deadline  1 December 2010.

Dossiers submitted after 1 October will be checked for completeness and results communicated within three months after the end of the registration period, i.e. until 1 March 2011. In case of complaints, a second chance will be given within an appropriate time period, approximately four months. Dossiers still incomplete with the second chance will be denied. This means that the registration has failed. As a consequence, all manufacturing and import of the substance concerned after December 1, 2010, the end of the registration period, will then be regarded as illegal.

Therefore, early submission prevents companies from risking their business.

Candidate list expanded up to 38 substances of very high concern

Effective June 18, 2010, the European Chemicals Agency (ECHA) has added another eight substances to the candidate list of substances of very high concern (svhc) after the committee of the member states of the European Union had taken a respective decision a few days before, June 14, 2010. The substances are the following:  

 • Trichloroethylene: CAS No. 201-167-4
 • Boric acid: CAS No. 233-139-2, 234-343-4
 • Disodium tetraborate, anhydrous: CAS No. 215-540-4
 • Tetraboron disodium heptaoxide, hydrate: CAS No. 235-541-3
 • Sodium chromate: CAS No. 231-889-5
 • Potassium chromate: CAS No. 232-140-5
 • Ammonium dichromate: CAS No. 232-143-1
 • Potassium dichromate: CAS No. 231-906-6

This has direct impact on suppliers of articles containing those substances in a concentration higher than 0.1 mass%. They are subject to information obligations according to art. 33 REACH regulation. The candidate list now defines 38 substances. The list is available (including background information) on the following webpage of ECHA: http://echa.europa.eu/chem_data/authorisation_process/candidate_list_table_en.asp

Facts Report of the REACH Enforcement Project

In a ‘Facts Report of the REACH-EN-FORCE-1 project’ ECHA has published a status report on enforcement of the regulation throughout the EU member countries, Norway, and Iceland. However, three EU member countries did not participate in the project: Lithuania, Luxemburg, and Italy. As has been largely disputed, the number of controls of companies per countries varies broadly: France e.g. completed 14 controls, Germany 257, although the number of companies concerned by REACH will not differ that much. In roughly one fourth of the 1.589 companies checked, the authorities discovered cases of non-compliance. Infringements, however, vary on a broad range, so that in only three cases litigation in form of criminal cases ensued.

More than half of the companies inspected play a role as a manufacturer, whereas the others were importers, downstream users or Only representatives. Some of the companies assumed more than one of these qualities. The most common case of non-compliance was missing or insufficient synchronisation of safety data sheets with the demands of the REACH regulation. With enforcement speeding up and in several countries to start at all, inspection results will receive more and more attention as the deadline December 1, 2010, for high volume substances is coming closer.

Agreement about new copyright levies in Germany

The Industry Association BITKOM and the Collecting Society ZPÜ have concluded a new agreement about the extension of copyright levies in Germany. According to the decision of the Arbeitskreis Urheberrechtsabgaben (Committee of Industry Associations and Collecting Societies) of 13 January 2010, the new contract, including new tariffs for USB-Sticks and Memory Cards, is released. The agreement closes an important gap in the levies system, which has been a cause of uncertainty among suppliers of such media. They can now rely on planning security for the next two years.

Moreover, the declaration is a clear indication of the trend that levies are charged for an increasing number of device categories. Especially in Central Europe, the collecting societies impose virtually universal blanket levies on both analogue and digital memory media, and on analogue and digital information technology and consumer electronics devices. This increases the profits of the collecting societies, but also the expenses of end users. The further development seems predetermined.

New tariffs for BITKOM members, the discount (20 %) is already included:

– USB-Sticks: 0.08 €
– Memory Cards: 0.08 €

The duration of the contract is from 1 January 2010 to 31 December 2011; if it is not cancelled, the contract will automatically extend for one year.

Enrolment for BITKOM members:

In case the declaration is accessed until 31 May 2010, the accession shall take effect retroactively on 1 January 2010. After the expiration of this deadline, the declaration shall take effect at the beginning of the following semi-annual period.

The first date of reporting is 15 August 2010 and the first date of payment is the 31. October 2010.