The Court of Justice of the European Union (CJEU) ruled on 10 September to strengthen the obligations of manufacturers to declare the presence of ‘substances of very high concern’ in their products. Journal de l’Environnement reports.
This important decision concerns complex products composed of many different ‘articles’. Under the 2006 Regulation on the Evaluation, Authorisation and Restriction of Chemicals (REACH), the use of any substance classed as ‘of very high concern’ for health or the environment must be notified to the European Chemicals Agency (ECHA) by the producer or importer, whenever the concentration of the substance exceeds “0.1% weight by weight” of the article in question.
The list of substances of very high concern (SVHCs) contains carcinogenic, mutagenic or toxic chemicals like cadmium sulphate as well as persistent and bioaccumulative chemicals and hormone disrupters.
But what does 0.1% weight by weight of an article really mean? This is precisely the subject of the CJEU ruling, which puts an end to the different interpretations of the Regulation by the European Commission and the French ecology minister.
Brussels and the ECHA only demanded a notification when a SVHC exceeded 0.1% of the weight of an entire product. But France and some other countries, including Norway, had argued for a stricter interpretation of the Regulation, requiring a notification when a SVHC exceeded 0.1% of an article, regardless of the final composition of a complex product.
Disagreement between Paris and Brussels
Paris’ strict interpretation was contested by the French Federation of Commerce and Distribution and the Federation of DIY and home improvement shops before France’s Council of State, which truned to the CJEU for advice. The CJEU ruled in favour of the more restrictive French interpretation.
One article, one notification
In their judgement, the European magistrates clarified the distinction between an article and a product. An article, they recalled, is “an object which during production is given a special shape, surface or design which determines its function to a greater degree than does its chemical composition”.
This led them to conclude that a separate notification should be submitted for each article that makes up a complex product, when more than 0.1% of the weight of this article was made up of a substance of very high concern. Several notifications may thus have to be made for one complex product.
Diligence throughout the supply chain
The obligation to notify the ECHA only applies to articles made or assembled by the producer itself, not to any articles made by a third party, who are themselves bound to provide notifications.
But the responsibility does not stop with producers and importers. It also applies to “any person in the supply chain once that person makes an article available to a third party”. It remains to be seen how the CJEU ruling will be interpreted by businesses.
This article was previously published by EurActiv France.