Chemical imbalance? SMEs still worried about REACH[fr][de] 

With Parliament and the Council likely to hammer out a final agreement on REACH before year-end, European SMEs are anxious to make sure that they get a fair deal.

Efforts have already been made towards accommodating the needs of SMEs and reducing the costs of registering a substance with the new European chemicals agency. They include:

• Lighter registration requirements for chemicals produced or imported in small quantities (1-10 tonnes / year), and;
• mandatory group applications for similar chemical substances in order to share registration costs (One Substance One Registration principle - OSOR).

The Council's common position, adopted in December last year, alleviated some of the fears expressed by UEAPME, the European SME association. However, it still differs widely from the Parliament's position in first reading, an issue that still needs to be ironed out in second reading.

The central issue with OSOR - and one which still needs to be resolved in second reading - is whether every company in the consortium should have access to each other's safety data. And this is where problems start as this kind of information is usually protected by intellectual property rights.

To cater for these crucial business concerns, the Commission proposed to keep the data confidential for a period of ten years. In first reading, the Parliament extended the protection to 15 years. 

"There too, we will need to find a compromise", says Guido Sacconi, the MEP is charge of REACH for the European Parliament.

For Sacconi, "the most important for SMEs is OSOR - it is the concrete issue where large manufacturers are showing the most resistance. And in my opinion, the Council's position is better than the Parliament's".

In addition, individual companies were allowed to opt-out from OSOR if they can prove that disclosure would harm their commercial interests or violate their intellectual property rights.

As a general principle, it will be the agency deciding whether or not to release the information and decide when data-sharing obligation should take priority over the protection of business information.

As explained by Jean-Claude Lahaut from the European Chemistry Council (CEFIC), there are "compelling economic incentives for registrants to co-operate by sharing information" under the OSOR system. However, he admits that this can create "a conflict" with the protection of confidential business information.

"Sharing data resulting from years of research and innovation might provide an unfair advantage to competitors and damage the competitiveness of a company," says Lahaut.

What industry is objecting to is "the uncontrolled dissemination of critical business information". Specific demands for information that does not contribute to the protection of health and the environment should be subject to appeal, he argues.

Lahaut therefore insists that the opt-outs agreed by Parliament at first reading be maintained. "There are mechanisms and practices already in place to ensure that trained professionals at each stage of the supply chain are provided with accurate and detailed information about the chemistry they handle," he points out.

But, according to UEAPME, the Parliament's first-reading position allows too much freedom for large manufacturers to opt-out from consortia.

"We need this data to survive on the market, otherwise we're out," says Guido Lena, environment director at UEAPME. Instead, Lena says it prefers the more restrictive definition of opt-outs agreed by the Council.

"Since multinationals today compete directly with SMEs in the same markets, the non-disclosure of data can be used to acquire new market shares and exclude many SMEs."

On the other hand, UEAPME strongly criticises the Council's position on cost-sharing, which foresees an equal financial participation of all consortium participants, regardless of import or production volume. Under this system, a very small company could end up paying the same registration fee as a large multinational.

"Cost-sharing represents a huge chunk of annual budget for an SME working with chemicals," says Francesco Longu, UEAPME press and communications officer. "That would be an additional unfair advantage for big business."

According to the SME association, the Parliament's position was fairer in the sense that it allowed cost-allocation within the consortium in proportion to a company's production or import volume. In other words, the smaller the company, the smaller the financial contribution.