EU Court Clarifies 'Article' Containing SVHC But Questions Remain

On September 10, 2015, the European Court of Justice ("ECJ") delivered a key decision on the concept of an "article" containing a substance of very high concern ("SVHC"). The decision, which was highly anticipated, particularly in France, responded to a request for a preliminary ruling of France's Supreme Administrative Court (Conseil d'Etat) of February 26, 2014. The decision examined the following obligations under the Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals ("REACH"). Article 7(2) REACH requires a notification to the European Chemicals Agency ("ECHA") of any article placed on the market in the EU that contains an SVHC in a concentration above 0.1% w/w (percentage weight/weight). Article 33 REACH requires the provision of such information to recipients of the article and upon request to consumers. The legal issue is whether the 0.1% w/w threshold should apply either to (i) a complex product, consisting of several separate component articles, or (ii) each of such component articles. Article 33 REACH defines an "article" as "an object which during production is given a special shape, surface or design which determines its function to a greater degree than does its chemical composition." This definition, however, was inadequate for determining the scope of application of the 0.1% w/w threshold. Thus, the European Commission addressed this issue in an opinion dated February 4, 2011. It indicated that "objects which at a certain step in their life-cycle meet the definition of article under REACH cease to be individual articles and become components once they are assembled into another article. For this reason, the obligations in Article 7(2) and 33 apply only with respect to such assembled article, and not with respect to its individual components" (emphasis added). ECHA's guidance on requirements for substances in articles took a similar view. However, six EU Member States (France, Germany, Belgium, Denmark, Sweden, and Austria) and Norway did not share the Commission's and ECHA's views and published dissenting opinions in May 2008. The French Ministry of the Environment also published an opinion in June 2011 asserting that the concept of "article" should be understood as each item falling under the definition of an "article" under REACH. Thus, "French authorities will apply the provisions of Articles 7(2) and 33 relying on these elements. Controls will be progressively enforced in order to ensure...