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18 September 2015

REACH: European Court of Justice issues judgment favourable to health protection

In a judgment issued on 10 September, the Court of Justice of the European Union (CJEU) endorsed the earlier interpretation by five member states of a point in the REACH regulation concerning chemical substances categorised as being ‘of very high concern’ on account of their carcinogenic, mutagenic or toxic properties. The CJEU decision requires vendors of products containing these substances to supply their customers with better information.

According to the REACH regulation – which covers trade in chemical substances in Europe – the producer or importer of an article in which a substance of very high concern is present in a concentration of above 0.1% of the mass of an article must provide information sufficient to ensure the safe use of the article. This information must be supplied automatically to professional users of the article, whereas, in the case of ordinary consumers, the information has to be supplied (free of charge) only if the user actually requests it.

Since the enactment of REACH, there has been debate regarding whether, for complex products containing several articles (e.g. a car), the threshold should be calculated at the article level (wheel, seats, tyres) or the product level (the whole car). The European Commission had taken the position – favourable to industry – that the thresholds should be calculated at the whole product level, meaning that if the threshold was exceeded for minor components, the information requirements would not necessarily be triggered.

The CJEU failed to endorse the Commission’s interpretation, taking the view instead that each separate article incorporated into a product should be subject to the information requirements if it contains a substance of very high concern in a concentration superior to 0.1% of its mass.

With this judgment issued on Thursday 10 September, the CJEU endorses the position of the French government whose interpretation of articles 7(2) and 33 of the REACH regulation provoked the ire of the French retailers’ federations and do-it-yourself shops. These associations took out proceedings in the French courts which in turn asked the CJEU to issue a judgment.

The position of the French authorities was shared by four other EU governments (Austria, Belgium, Denmark, Germany).

For more information:

CJUE press release (10 September 2015) (pdf - 160.89 Kb)
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