EU Court Clarifies The Calculation Of SVHC In Articles And Related Notification Duties

On 10 September 2015, the European Court of Justice delivered an important judgment in case C-106/14 Fédération des entreprises du commerce et de la distribution (FCD) and Fédération des magasins de bricolage et de l'aménagement de la maison (FMB) v Ministre de l'Écologie, du Développement durable et de l'Énergie. The case is a request for a preliminary ruling from the French Conseil d'État (Supreme Court) and it concerns the concept of ''article'' under the REACH Regulation, and the duty to notify the presence of Substances of Very High Concern (''SVHC'') which are present in the article at a concentration of 0.1% weight by weight (w/w).

Fieldfisher published an article on Advocate General Kokott's Opinion on the case in March 2015, which is available here.

Background

REACH defines "articles" as "an object which during production is given a special shape, surface or design which determines its function to a greater degree than its chemical composition". Article 7(2) in conjunction with Articles 57 and 59 of REACH imposes on producers and importers the obligation to provide information to the European Chemicals Agency ("ECHA") when an article contains more than 0.1% w/w of an SVHC. The same duty is imposed by Article 33 on suppliers vis-à-vis recipients and consumers of such articles. A notification is not required for a substance in articles which have been produced or imported before the substance has been included on the Candidate List for authorisation.

The question arises as to whether, in the case of a product composed of one or more articles within the meaning of Article 3(3) of the REACH Regulation, Articles 7(2) and 33 of that regulation must be interpreted as meaning that the concentration threshold for a SVHC of 0.1% w/w referred to in those provisions must be established in relation to the total weight of that product or only the component part in which it is present.

The issue of how to calculate the concentration where an article is made up of different articles has been subject to many disagreements between Member States since the entry into force of REACH in 2007.

In particular, the European Commission, supported by the majority of the Member States, takes the view that the proportion of a SVHC should be calculated by reference to the assembled article in total. Other Member States such as France in these proceedings contend that the threshold must be related to the individual components of the article. It is in this...