REACH: “Once an article, always an article?”

Article 33 of the REACH Regulation requires manufactures and importers of articles containing more than 0.1 percent of an SVHC (Substance of Very High Concern) to pass on this information within the distribution chain.

According to Article 7 (2), ECHA has to be notified accordingly. The European Court of Justice (EJC) is currently in the process of clarifying whether the 0.1 percent threshold refers to the entire weight of the article or to each component (legal proceeding C-106/14).

Whilst according to the guidance of the EU Commission and ECHA, the 0.1 percent threshold should refer to the entire weight of an article, six EU Member States – Austria, Belgium, Denmark, Germany, France and Sweden – and Norway followed the interpretation according to the rule “once an article, is always an article”. This means that the 0.1 percent threshold should be based on the weight of the single component of an article.

• In the beginning of 2015 the Advocate General of the ECJ has published her opinion on this matter, basically supporting the interpretation of the six EU Member States.
  Art. 7 (2): The producer of an entire article consisting of component articles produced by other manufacturers is required to notify ECHA if a SVHC is present in the entire article above a concentration of 0.1 percent. However, the importer of an entire article consisting of component articles is required to notify ECHA both if a SVHC is present in the entire article above a concentration of 0.1 percent and if it is present in a component article above a concentration of 0.1 percent.
• Art. 33: The supplier of an entire article consisting of component articles shall be required to provide information within the distribution chain if a SVHC is present in a component article above a concentration of 0.1% and relevant information is available to the supplier.

The final decision of the ECJ is expected in the course of this year.