The Long Arm of REACH: How to Navigate Through the Compliance Process

Abstract: It is no exaggeration to state that the REACH Regulation1 has revolutionised the way in which environmental law has been formulated and is to be applied in the European Union. The Regulation itself entered into force on 1 June 2007, although its key requirements on economic operators kicked in one year later, with several obligations rolling out in a phased fashion from then on. The legislation’s application, as well as its contents, are certainly far– reaching (as the name suggests): the Regulation covered an incredible 849 pages when first published,2 on 30 December 2006, with thousands more pages of official guidance following on since then. It applies, potentially, to all manufacturers and importers of chemicals, mixtures of chemicals (preparations) and several types of chemical–containing articles, traded in the European Union. While it would be far too ambitious a project to cover every aspect of the REACH Regulation in an article such as this, even in summary form, the author has chosen certain aspects of it which are likely to be of particular interest to businesses that might be affected by the legislation’s myriad provisions. The author has therefore set out some of the main obligations on businesses under the legislation, including obligations on articles manufacturers and the various information obligations, while also highlighting the exemptions, for those lucky enough to be able to legitimately avoid some or even all of the stringent requirements. There is also an element of timeliness, as the European Chemicals Agency (ECHA) is gearing up to establish and issue a final list of substances that have already been pre–registered by legal entities, so as to pave the way for the creation of so–called Substance Information Exchange Forums (SIEFs), where entities will have to gather together and exchange as well as assemble data on their substance(s) of interest. The article therefore, among other topics, focuses on the requirements of and workings within such SIEFs, while also dealing with a possible and very serious risk of SIEF participation, namely that of breaching competition law, and how to validly refrain from doing this. Finally, the article considers the compatibility of the REACH legislation with the EU’s World Trade Organization (WTO) commitments, and whether there could be potential for an action, by other WTO Members, against the EU for imposing such burdensome requirements on their exporting industries.