Enforcement takes on speed

December 1, 2010, coming closer, enforcement starts playing a larger role in the discussion about REACH compliance. In various member states of the European Union, commissions of either government or industry associations have initiated reports on the national situation. The European Commission, however, triggered theses initiatives by a report on enforcement[1], with a specific focus in the varieties of penalties on infringements determined by the national legislations. A key finding of the report lies in the conclusion that in most countries penalties for non-compliance in the high volume segment, i.e. substances with an annual market tonnage above 1.000 tons, are not sufficient to encourage compliance because the maximum penalty is lower than the assumed costs of an orderly registration in time.

On the background of the statistics of the European Chemicals Agency (ECHA), which estimate that even until March 2010 lead registrants have been nominated for only one fifth of the substances to be registered until Dec 1, it is very likely that there are lots of companies that really count on either inexpensive penalties, low probability of being detected as non-compliant or other ways to evade the cumbersome legal obligations.

A response of the Commission to this finding has not yet been perceived. Enforcement, however, lying in the hands of the member states, timeliness, synchronisation between the members, and appropriateness of the measures will once more prove to be a key issue for effectiveness and credibility of European legislation. Even more so, companies striving for compliance raise suspicion about competitive disadvantages they could suffer from uneven practices in the member states. The acid test for meaning enforcement – and not only preaching it – will come along when the REACH principle “No data – no market” would cause member states to close the business of non-compliant producers or importers – all in the face of vanishing jobs in many of EU’s national economies…

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[1] Report on penalties applicable for infringement of the provisions of the REACH Regulation in the Member States, submitted to the EU Commission Dec 17, 2009 by Milieu, Environmental Law & Policy.