A European Commission proposal for an implementing Regulation to set a ‘cut-off date’ for REACH phase-in substances could prompt legal challenges, according to a prominent Brussels-based lawyer.
Phase-in substances are those which already exist on the European market and are listed in the European Inventory of Existing Commercial Chemical Substances (Einecs).
When REACH came into law the rules for these substances were established as part of a transitional period, designed to reduce the administrative burden of the new Regulation for “an appropriate period of time”.
But, with the final REACH deadline of 31 May approaching, the Commission says it no longer considers the concept of ‘phase-in’ substances can be justified.
And in a paper for the March meeting of the competent authorities for REACH and CLP (Caracal) the EU executive says applying the category phase-in substances to certain chemicals from 1 June would give them an unintended and unreasonable advantage over non phase-in substances and “would be without purpose or justification”.
Furthermore the Commission said, since there is no explicit provision in REACH that says phase-in substances should continue to apply indefinitely or otherwise, “an issue of legal certainty arises as to when the transitional period must be considered to have elapsed”.
However, Jean-Philippe Montfort, partner at law firm Mayer Brown, says he does not see the legal basis for the cut-off date.
“The legal rationale presented in the paper is very weak and not supported by the REACH legal text”.
If there is a cut-off date that applies, he adds, it could “only be that of 1 June 2018” – but the implementing Regulation would not be ready by this date, he says.
Not only that, Mr Montfort said, the Commission’s proposal contradicts an example in the Echa Guidance on Registration dealing with interpreting the so-called three-year rule.
Under this the registration deadline and testing programme for phase-in substances is determined on the basis of the average manufacture or import volumes for the three preceding calendar years.
Ending phase-in substances on 1 June would conflict with Echa’s advice.
“Companies have relied in good faith on such interpretations and are now being told, a few months before the deadline, that such an interpretation does not hold,” Mr Montfort said.
“Where is the legal certainty? I suspect this will create a lot of last-minute headaches, questions and eventually legal challenges.”
The Commission paper came in response to an earlier one submitted by Germany. This said there was “an urgent need for clarification and harmonisation” regarding the phase-in status after 31 May.
The German paper argued there should be no difference between the status of phase-in substances and non phase-in substances after the 2018 registration deadline. Phase-in substances are “privileged” in that they have transition periods for their registration, it argued.
Germany questioned how to interpret the ‘three-year average’ rule for phase-in substances in Article 3(30) while it still remains in effect.
The Commission said that since this rule constitutes a derogation from a more general rule, it must be interpreted strictly and should only be applicable if the conditions of a chemical being “imported or manufactured for at least three consecutive years” and “average production or import volume for the three preceding calendar years” have been satisfied.