Ask Dr REACH: Who is responsible for my imports?
Question: "A non-EU company supplies my EU-based companies with products. Who is then responsible for any REACH-relevant obligations for the registration of the substances in those products?" The questioner represents an SME metals trader based in Italy.
Answer:
Establishing who is responsible for imports under REACH can prove challenging, not least in terms of defining legal entities that depend on national law where those entities are based. First, an importer under REACH must be based in the EU (or, after EEA ratification of REACH, in the EEA). Fundamentally, a non-EU company cannot therefore be responsible for import under REACH. However, a non-EU company can appoint an ‘only representative’ that is based in the EU. Then, the EU receiving company may ‘no longer’ be considered as an importer.
Second, the REACH Regulation specifies that import relates to the physical introduction of a good into the EU (or EEA after ratification). Usually, the EU-based purchaser of a substance will be responsible for import under REACH as it is receiving goods into the EU. According to the guidance set out in RIP 3.1 and the REACH Navigator (http://reach.jrc.it/), the substances subject to customs supervision – even when stored or in transit, and providing they are not subject to processing or treatment – are not covered and those physically transporting the goods do not appear to have obligations.
But things can get complicated. It may be that a substance is being transported into EU territories by one company while ownership exchange is occurring via brokers on behalf of other companies, and after a given sale, a customs clearance company physically transfers it to a company for its ultimate use by another company that sells it on the EU market. Who is then responsible for registration?
Companies themselves will need to make these judgements and it may then be appropriate to document the reasons for their decision and even check this with the relevant regulators. At the end of the day, regulators will not want to have to deal with one company blaming another.
Pre-registration will form a first hurdle because companies are now asking who should pre-register. It may be that some legal issues, regulatory guidance and company-to-company agreements take some time. And perhaps clarifications on REACH requirements will only become evident after the pre-registration deadline. Companies that see themselves as potential registrants should therefore pre-register, even if in doubt.
Steffen Erler
Legal Disclaimer: The information contained in this communication follows a technical interpretation of REACH to serve as a thought-starter for discussions; it does not constitute legal or any other form of advice. Note that technical aspects are subject to review and references should be checked for updates. The legal text of the REACH Regulation must serve as the basis for REACH compliance and it may be advisable to seek legal and/or other expert advice on any given issue. The author and Chemical Watch accept no liability whatsoever with regard to the use of information contained in this communication.
