EU Court Interpretation of REACH Directive's Definition of Finished Goods
The Advocate General of the European Court of Justice recently clarified that the EU REACH Directive's obligation for importers of finished products to notify of substances of very high concern (SVHC) contained in their products should not be limited to the narrow definition of "finished product".
According to Article 7(2) of the EU REACH Directive, if the content of SVHCs in a finished product exceeds 0.1% by weight, the manufacturer or importer is obligated to notify ECHA. Article 33 stipulates that if the content of SVHCs in a finished product exceeds 0.1% by weight, the supplier has an obligation to provide SVHC information to downstream manufacturers and consumers.
However, after the REACH Directive came into effect in 2007, several EU member states had differing opinions on the definition of "finished product." Six member states—Belgium, Germany, Denmark, France, Norway, and Sweden—believed that the calculation of SVHC content in complex finished products (whether it exceeds 0.1%) should be based on the main components of the finished product, rather than on the entire article composed of many components. They were concerned that if the weight percentage of SVHCs were based on the article composed of complex components, the percentage would be diluted, failing to provide adequate protection for consumers.
In 2014, the aforementioned six member states, together with Norway, Greece, Ireland, and the European Commission, jointly requested the Court of Justice of the European Union to interpret the definition of "finished product" in the REACH Directive.
Because Article 3(3) of the REACH Directive defines "finished product" as a functional object having a specific shape, surface or design. The adjudicator explained that, according to the definition of the REACH Directive, components, because they have specific functions, still meet the definition of "finished product" even if they are already part of the whole final product when sold or imported.
The adjudicator, based on Article 7(2), determined that the manufacturer of the entire product is obligated to report the weight percentage of SVHCs in the product and related information to ECHA, but is not required to provide the weight percentage of SVHCs in components supplied by its suppliers, as these components are not manufactured by the product manufacturer and therefore the manufacturer would not have relevant SVHC information. Conversely, the importer of the entire product must report the weight percentage of SVHCs in the components of the product and related information. According to Article 33, the supplier of the entire product must provide downstream manufacturers or consumers with information related to SVHCs contained in the product components.
Although the adjudicator's interpretation is not absolutely binding, judges will refer to the adjudicator's interpretation when making decisions in similar cases.
Sources: Chemical Watch (2015-02-18) (Compiled by PIDC)
