REACH: the ECHA focuses on BREXIT…

November 17, 2017
by Hervé Jouanjean Of Counsel FIDAL, Ancien Directeur Général à la Commission européenne, Vice-Président Confrontations Europe,
Lucie Marchal

Despite some progress, after 5 rounds of negotiations on the conditions of the UK’s withdrawal from the EU, there is still a lot of uncertainty surrounding three key issues, namely:

  • the protection of the rights of all of the citizens concerned by the withdrawal,
  • guaranteed preservation of the peace process in Northern Ireland and cooperation in Ireland as a whole,
  • the need for the financial commitments made by 28 Member States to be honoured by 28 Member States.

The message given by the European negotiator, Michel Barnier, at a press conference held at the close of the 5th round of negotiations has remained unchanged “to achieve and bring these three broad goals to fruition” before “commencing discussions as soon as possible on a new ambitious and sustainable partnership between the United Kingdom and the European Union”.

For all that, companies continue to go about their business, and are regularly faced with strategic choices requiring them to predict when the UK’s withdrawal from the EU will become effective.

If the current scenario goes to plan, then the UK will become a non-Member State on 30 March 2019.  The main consequence of this will be that the Registration, Evaluation, Authorisation and Restriction of Chemicals regulation (“REACH”) will cease to apply on the UK territory, which will have a two-fold effect:

  • companies established on UK territory will cease to have access to the process for the registration of substances and the updating of dossiers, irrespective of whether they accomplish those tasks as hitherto European manufacturers, or as the only representative of a non-European manufacturer. Foreign groups who rely on their British subsidiary to proceed with the registration of substances imported into the EU will need to transfer that responsibility to a company established in the territory of the EU composed of 27 Member States, 
  • companies established within the EU post-BREXIT which import substances from the UK will have to proceed with a registration with the European Chemicals Agency (ECHA) and fulfill the role of an “importer” if the UK company does not appoint an only representative, or will have to strive to find new suppliers within the EU. Whichever solution they chose, for companies which will continue to be bound by the obligations ensuing from REACH, this will entail either organising themselves in advance and setting up a team which is knowledgeable with regard to REACH, or reorganising their supply chain.

It is in this climate of uncertainty that the ECHA has set up a web page devoted to issues related to BREXIT in regard to REACH, CLP (the regulation on the classification, labelling and packaging of chemicals), BRP (the Biocidal Products Regulation) and PIC (the Prior Informed Consent regulation on the import and export of hazardous chemicals).

This web page provides an analysis and/or answers to a certain number of issues concerning not only companies, but also the future relations between the ECHA and the UK authorities.

A Q&A provides companies with answers to the main issues raised by BREXIT. Even though these answers are predictable given the applicable legislation, they nonetheless provide a welcome confirmation on certain points.

It is in particular indicated that UK companies will have to comply with all of the obligations imposed by REACH until such time as that legislation ceases to apply on UK territory. For example, British companies will have to register substances imported into the EU in quantities exceeding one ton per year before the deadline of 1 June 2018.  It also confirms that as from 30 March 2019, if those companies wish to continue supplying companies in the EU after BREXIT on the basis of their own registration, they will either have to relocate, or appoint an only representative. In addition, the fee to be paid if the registration is transferred or there is a change in the legal entity will still be due notwithstanding the fact that the change has occurred because of BREXIT.

Post-BREXIT, companies established in the EU composed of 27 Member States which obtain their supplies from UK suppliers will have to take over the obligations of their suppliers as they will be considered as importers. The ECHA states furthermore that if a company established in the UK is the lead registrant in a joint submission of a registration as well as the data owner, it will have to move to within the EU composed of 27 Member States, appoint a sole representative, or appoint a new lead registrant to which it would transfer its role before the UK withdraws.

As regards relations between the ECHA and the UK authorities, it has been confirmed that the withdrawal of the UK will significantly reduce the level of cooperation between the ECHA and the UK authorities, and that the British members appointed by the UK to the bodies and networks of the ECHA will have to be withdrawn on 30 March 2019.

Finally, the ECHA has undertaken to update the web page devoted to the withdrawal of the UK as the negotiations progress.

Whilst this initiative by the ECHA obviously does not address the issue as to what will be the relationship between the UK and EU after 30 March 2019, it is nonetheless welcome in that it is not only aimed at facilitating companies’ tasks of anticipation, but also provides them with reliable answers by virtue of the ECHA being the agency in charge of these matters. The FIDAL law firm, which has extensive experience of REACH-related issues, can assist you in setting up the requisite restructurings and identifying the most appropriate solution to ensure your compliance with regulatory requirements under BREXIT.

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