The “Conseil d’État” (French administrative jurisdiction) in a judgment of February 26th 2014, between FMB and FCD against the Ministry of Ecology, Sustainable Development and Energy, referred the case to the EU Court of Justice on REACH obligations: what should be the proper way to calculate the concentration of SVHC in articles themselves composed of items?

Calcul de la concentration SVHC  :  un contentieux européen

Context : Differences of opinion on the method of calculation of the concentration of SVHC in articles

In a ministerial legal notice of June 8th 2011, "Notice to economic operators on the obligation to communicate information on substances in articles pursuant to Articles 7§2 and 33 of Regulation No 1907/2006 (REACH) - Interpretation of the 0.1% level (w / w) referred to Articles 7§2 and 33," France has decided that an item may be composed of one or more objects within the definition of section and Articles 7§2 and 33 of REACH.

Nevertheless, there is a difference of opinion between the various Member States and the European Commission on the on the method of calculating the concentration of SVHC . If France has chosen to calculate the concentration of each component of the article, other countries calculate the concentration for the assembled article.

The French position was challenged by the Federation of Commerce and Distribution undertakings (FCD) and DIY and home Improvement Federation (FMB), who jointly appealed to the State Council (Conseil d’État) after the rejection - by the Ministry of Ecology – of the internal appeal they had formed. It is in this context that the Council of State made a preliminary question to the CJEU (Court of Justice of the European Union), and stays the proceedings on the merits of the case.

The question asked by the Council of State was:

“For an article that is composed of several elements, which amount to articles themselves, do the thresholds for the notification of SVHCs and the supply of information obligations (Articles 7(2) and 33 of REACH, see below) apply to the component articles or the assembled article?”

The main challenge here is to determine whether the disclosure requirement on substances in articles to more than 0.1% is applicable or not to the component of the main article.

The conclusions of the Advocate General

On February 12th, 2015, Ms Kokott, Advocate General answered that question in two parts. Here are her conclusions:

Regarding the obligation to notify to ECHA: REACH Article 7§2

  • The producer of an article has the obligation to notify when the entire article contains a substance referred to above 0.1%.
  • The importer must do this for each component containing a substance referred to above 0.1%.

Regarding the obligation of communication to downstream users in the supply chain Article 33 REACH

  • The article supplier must meet the downstream disclosure obligation for each component containing a substance referred to above 0.1%.

Summary table

  Producer Importer Supplier
Entire article Notification    
components   Notification Downstream communication

To be continued ...

The Council of State must now rule on the merits of the case. Nevertheless, the Court is free to follow or not the conclusions of Ms Kokott, Advocate General. For more information on the regulatory requirements related to SVHC, please see our SVHC page or send an email to [email protected]

Regulatory Reminders

Any producer or importer of articles shall notify the Agency, in accordance with paragraph 4 of this Article, if a substance meets the criteria in Article 57 and is identified in accordance with Article 59(1), if both the following conditions are met: (a) the substance is present in those articles in quantities totalling over 1 tonne per producer or importer per year; (b) the substance is present in those articles above a concentration of 0,1 % weight by weight (w/w).

Any supplier of an article containing a substance meeting the criteria in Article 57 and identified in accordance with Article 59(1) in a concentration above 0,1 % weight by weight (w/w) shall provide the recipient of the article with sufficient information, available to the supplier, to allow safe use of the article including, as a minimum, the name of that substance. On request by a consumer any supplier of an article containing a substance meeting the criteria in Article 57 and identified in accordance with Article 59(1) in a concentration above 0,1 % weight by weight (w/w) shall provide the consumer with sufficient information, available to the supplier, to allow safe use of the article including, as a minimum, the name of that substance. The relevant information shall be provided, free of charge, within 45 days of receipt of the request.

Means any natural or legal person who makes or assembles an article within the Community.

Means any natural or legal person established within the Community who is responsible for import.

Means any producer or importer of an article, distributor or other actor in the supply chain placing an article on the market.

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