Ask Dr Reach: Can I change my ‘only representative’?
QUESTION:
Can a company change the EU company that it wants to act as the Only Representative? The questioner is a Chinese trade association.
ANSWER:
Yes. But let’s first remind ourselves of the basics. Non-EU manufacturers, formulators and producers of articles can appoint an Only Representative (OR) to fulfil the obligation of EU importers in the relevant supply chain. Only one OR can be appointed for a given substance.
According to the ECHA Navigator http://reach.jrc.it, it is still unclear what rules will apply if several non-EU legal entities appoint the same OR for the same substance, eg. whether one or multiple registration dossiers must be submitted. It currently states that the issue will be clarified by the European Commission’s legal services as soon as possible. As a fee is payable per transaction, the draft fees Regulation suggests that the OR must submit a dossier per company it represents. CW article, 11 December 2007
The coverage of any OR is specific. It must know substance tonnages and relevant customers in the EU. If EU customers are confidential, it seems logical that those details can be provided by another actor in the supply chain directly to the OR – e.g. by a non-EU trader. In turn, various methods of informing the designation of the OR to the relevant EU actors by the non-EU company can be devised.
So what happens if you want to change an OR? RIP 3.1 guidance produced in June 2007 clearly stated that a new OR can send an update to change the legal entity status of a registration. This would require consent from the original OR. In practice, this probably means that the original OR would need to have submitted separate registration files for each relevant non-EU company it represents. If the files are collated, then it is hard to see how one firm can change its OR.
However, the revised February 2008 version of RIP 3.1 now says that a new registration dossier must be sent when an OR is changed. It also indicates that tonnage should be summed across different supply chains. But the examples and descriptions in RIP 3.1 raise many questions.
How a change can occur after pre-registration requires further examination. It may be that a new pre-registration must be made but without being limited to the normal ‘late pre-registration’ timelines, which require action at least 12 months before the relevant phase-in registration deadline. Alternatively, it may be that a pre-registration number can be transferred between ORs. Restricting the ability of non-EU firms to change OR during the 12 months prior to a phase-in registration deadline could otherwise be construed as a technical barrier to trade.
The guidance on pre-registration should offer more clarity but clearly, there are complex issues here that require further examination. Bear in mind also that ultimately many specific data ownership and access issues will remain subject to case-by-case legal contracts.
Dr 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.
