K&L takes part on information event at BAuA

BAuA (Bundesanstalt für Arbeitsschutz und Arbeitsmedizin, Federal institute for safety at work and industrial medicine) is the German competent authority for REACH, the so called MSCA in Germany. BAuA offers platforms to discuss crucial questions concerning the registration for chemicals under REACH. Only afterwards can local inquires out of Germany be escalated to ECHA. Accordingly, the respective meetings are very well frequented.

Consultants of K&L participated in the most recent information event on the “A” within REACH, which stands for Authorization and also includes the restriction of chemicals.

Substances in annex XIV REACH have to be authorized. These substances are not permitted for production or import without an authorization by the European Chemicals Agency (ECHA).

Substances in annex XVII REACH are in principle permitted for production or import but are restricted for certain uses. As an example, mercury is not eligible as a component in preparations used for preservation of wood.

The application for authorization has to be submitted to ECHA until a deadline specifically defined for each substance, allowing for an at least 18 months grace period until production or import will be prohibited without authorization. Both dates will be set by ECHA considering the type of substance and other criteria; e.g. the production cycle.

Currently; the following first six substances are scheduled for annex XIV by early 2011.

• 5-tert-butyl-2,4,6-trinitro-m-xylene
• 4,4′- Diaminodiphenylmethane (MDA)
• Bis (2-ethylhexyl)phthalate (DEHP)
• Benzyl butyl phthalate (BBP)
• Dibutyl phthalate (DBP)

Until 2012, the ECHA candidate list defining svhc-substances with a probability to be included in annex XIV will assumedly grow up to 136 items.

It is quite evident that companies’ responsibilities under REACH go far beyond registration obligations. The discussions at BAuA showed that there are still a lot of concerns. K&L will close pursue the progress of discussions and decisions.

PC tariffs in Germany still in motion

Regarding the Copyright Levies for PCs in Germany, the industry is split: there are PC tariffs published on 29 April 2010 by the Collecting Society ZPÜ (Zentralstelle für private Überspielungsrechte) – which, however, have been rejected by the industry. The manufacturer association BCH (Bundesverband der Computerhersteller) meanwhile agreed upon their own tariff – which runs out by end of 2010! Thus, the situation remains unclear for both sides, the further process needs to be observed.

The Collecting Society ZPÜ published a new levy system this year without preceding successful negotiations, regarding the varying tariffs of PCs, Laptops, and Netbooks with and without integrated burners. These new tariffs are the basis for the claims of the collecting society, if so, retroactively as of 1 January 2008, for all PCs sold or imported. According to a statement of the Industry Associations, the negotiations are not over yet. A final decision is expected not until the end of this year.

Obligated parties have various options to override the new tariffs. They can disagree with the tariffs, but this may lead to a court case versus the ZPÜ.

Another option was to join BCH. This Industry Association has concluded an agreement with ZPÜ for reduced tariffs for these products, although they are in effect retroactively from 2008 to December 2010.

Copyright levies in Russia

Finally, a Russian Collecting Society is officially authorized! However, it is none of those which so far were supposed to be selected.

Negotiations about copyright levies in Russia are apparently over. On 14 October 2010, the Decree of the Government of the Russian Federation No. 829 finally approved the negotiated scope and tariffs. A few days later, October 26, 2010, the Russian Union of Rightholders was authorized as the competent collecting society. According to a statement of the Collecting Society, payment will start without any delay and there is no pending trial.

Decree No. 829 states an extensive scope of products and except reprographic devices almost all product categories are part of the scope. Some administrative questions still remain unanswered.

The further development, however, needs to be monitored closely. In Russia, the situation may change fast.

Chemical Safety Report (CSR) – Common or individual

Members of a consortium or a SIEF have to decide if the CSR is part of the Joint Submission or not (Article 11.1). There are three different procedures to choose.

1. Joint CSR for all registrants:

The Lead Registrant submits Part A and Part B in behalf of all members of the joint registration.

This procedure has the advantage that there is only one CSR for the substance and all information is submitted comprehensively.

It shows, however, disadvantages by being intricately when changes, updates or new registrants’ uses have to be added because additions to the registration dossier has to be done via the Lead Registrant. Moreover, in order to comply with competition law, trustee services may be necessary.

2. Partial Submission of a Joint CSR

The Lead registrant submits part B of the CSR jointly for all registrants and ticks the box for “Joint submission” in IUCLID, the registration software of the European Chemical Agency (ECHA). Then, every registrant submits individually part A of the CSR.

Furthermore, individual uses that are not covered by the Lead CSR Part B, can be added in a CSA by every registrant himself. Consortium members can also arrange that every joint registrant submits his own CSA for his uses when the Lead Registrant does not disclose his own uses and exposure scenarios.

This proceeding has the advantage that, if any updates or changes occur in a company, the Lead Registrant is not affected or involved in any administrative work.

3. Individual submission by every registrant

Every registrant submits CSR Part A and Part B on his own.
Lead Registrants or consortia may support their member registrants by providing a template of the common contents of the CSR.

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!