When is an article not an article? When it’s a component. Sometimes. Perhaps. Maybe. We’ll see.
Beware of SVHC’s.
Firstly, the (slightly) technical bit.
Article 33(1) of REACH obliges suppliers to provide certain information to downstream users if Substances of Very High Concern (SVHC) are present in an article that they supply at a concentration of above 0.1% w/w. There is also an obligation on producers and importers under Article 7(2) of REACH to notify ECHA if an SVHC is present in articles in quantities greater than 1 tonne per producer or importer per year and if the substance is present in those articles at quantities greater than 0.1% by weight.
But what is an article?
Well, Article 3(3) of the REACH regulation 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”
Secondly, the issue.
Because interpretation of the regulations must be applied with consistency across all the member states, an issue arose when seven countries, including Germany and France, and contrary to other member states, decided that your new TV, for example, was not to be considered as just one finished article but as a collection of articles. So, while an SVHC may not make up greater than 0.1% of the TV as a whole, it may constitute >0.1% of an individual component or sub-assembly part of the TV.
In light of the differing interpretations the European Court of Justice (ECJ) was asked to rule on whether the 0.1% threshold applied to the completed finished article, the TV in our case, or whether it applied to the sub components separately. In our example this would be, for example, the outer plastic casing, the screen, the wiring, the electronic components, etc.
Thirdly, the outcome (well, almost)
The Advocate-General, an advisor to the Court of Justice, was asked by the court for a legal opinion on whether an article is the final product, the whole TV, or whether components of articles are also articles. The Advocate-General recently reported back to the ECJ with her opinion. In summary the opinion stated that the sub-components still met the definition of an article as described above. The ECJ is now obliged to consider the opinion of the Advocate –General before finally ruling on the matter. The decision is expected in the Summer of this year (2015). That decision will then be enforced in all member states.
The final decision could have serious ramifications for producers and importers of articles and their obligations to notify SVHC’s to ECHA and to satisfy the requirements with regard to communication within their supply chain. Watch this space.