In a landmark ruling, the European Court of Justice (ECJ) has said the 0.1% threshold for notifying SVHCs in articles applies to “each of the articles incorporated as a component of a complex product” rather than to the entire article.
The court’s decision contradicts the view adopted by the European Commission and Echa’s guidance on requirements for substances in articles, and backs that taken by five EU member states and Norway.
The case relates to two Articles of the REACH Regulation. Article 7(2) says “producers and importers” of articles must notify Echa if an SVHC is present, totalling over one tonne per producer or importer per year, in a concentration higher than 0.1% by weight. Article 33 requires “suppliers” of articles containing an SVHC above this threshold to inform the recipient of the article, and to provide similar information in response to consumer enquiries within 45 days.
The court said the REACH Regulation’s definition of an “article”, taken together with the lack of any provisions specifically addressing the situation of a complex product containing several articles, means “there is no need to draw a distinction between the situation of articles incorporated as a component of a complex product and that of articles present in an isolated manner.”
Thus, “each of the articles, incorporated as a component of a complex product, is covered by the relevant duties to notify and provide information, when they contain an SVHC in a concentration above 0.1% of their mass.”
The producer’s duty to notify, says the court, covers only those articles which the producer itself has “made or assembled”, but does not apply to articles made by a third party. Nonetheless, the third party is also subject to the duty to notify articles, which it makes or assembles.
Similarly, it says, the importer of a product, comprising one or more of the objects defined as articles, must also be considered to be the importer of those articles. “The fact that it can be difficult for importers to obtain the required information from their suppliers established in non-EU countries,” said the court, “does not alter their duty to notify.”
The duty for “suppliers” to provide information to recipients and consumers is not restricted to producers and importers, said the court, “but applies to all operators along the supply chain, when that person supplies an article to a third party.”
It is, therefore, for the person supplying a product, with one or more constituent articles containing an SVHC above the threshold, “to fulfil his duty to provide information and provide the recipient and the consumer … as a minimum, with the name of the substance in question.”
The ruling broadly follows an Opinion from an ECJ advocate general earlier this year (18 February 2015).
Echa said some elements of its guidance will need to be revised and that it will “commence the process”.