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The “Once an Article, Always an Article” Approach

Reflections on the Advocate General's Opinion on the Concept of “Articles” Under REACH

Published online by Cambridge University Press:  20 January 2017

Lucas Bergkamp  and
Nicolas Herbatschek
Lucas Bergkamp
Affiliation:
Hunton & Williams
Nicolas Herbatschek
Affiliation:
Hunton & Williams
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Abstract

OPINION OF ADVOCATE GENERAL KOKOTT delivered on 12 February 2015 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.

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 6 , Issue 1 , March 2015 , pp. 155 - 164
Copyright
Copyright © Cambridge University Press 2013

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References

1 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC [2006] OJ L396/1.

2 These countries are Austria, Belgium, Denmark, France, Germany, Norway and Sweden. See http://echa.europa.eu/doc/sia/draft_guidance_req_sia.pdf. In the EU, Germany and France have the largest direct automotive employment with 749,000 and 225,000 jobs in 2010, respectively (with 66,000, 35,000 and 29,000 jobs, respectively, employment in the car industry is also significant in Sweden, Austria, and Belgium.) European Automobile Manufacturers Association (ACEA), the Automobile Industry Pocket Guide 2013, p. 32. The Scandinavian countries are known for their stringent chemical policies, which due to the absence of substantial chemical industry generally do not have significant economic consequences for them. Lofstedt, Ragnar E.. Risk versus Hazard – How to Regulate in the 21st Century, EJRR (2011), 149–2011 Google Scholar. This suggests that the seven dissenting Member States may have different reasons for supporting the “once an article, always an article” theory (see further below).

3 As discussed further below, there is an issue as to whether any or all of these component–articles should be further broken down into smaller component–articles.

4 German REACH & CLP Helpdesk, Information from the German National Helpdesk on ‘Once an Article – Always an Article’ Fulfilment of the notification and information obligations concerning candidate substances in articles, September 2012.

5 The Advocate General's opinion is available at: http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&text=&pageIndex=0&part=1&mode=lst&docid=162239&occ=first&dir=&cid=22499

6 For further discussion of some of the key issues relating to the substances in articles, see Bergkamp, L. (ed.), The European Union REACH Regulation for Chemicals – Law and Practice, Oxford University Press, 2013 Google Scholar.

7 Art. 7.2, REACH Regulation.

8 Art. 33, REACH Regulation.

9 Art. 3.3, REACH Regulation.

10 Opinion, para. 36.

11 Article 4.2, Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast) [2011] OJ L174/88.

12 Cf. Commission Decision 2005/618/EC amending Directive 2002/95/EC of the European Parliament and of the Council for the purpose of establishing the maximum concentration values for certain hazardous substances in electrical and electronic equipment [2005] OJ L214/65.

13 ECHA, “Annex XV Restriction Report – Proposal for a Restriction – Bis(pentabromophenyl) Ether,” version 1, 1 August 2014.

14 German and Norwegian Competent Authorities, “Annex XV Restriction Report – Proposal for a Restriction –, Perfluorooctanoic acid (PFOA), PFOA salts and PFOA–related substances,” version 1, 17 October 2014.

15 Opinion, para. 52.

16 Echa, Guidance on Requirements for Substances in Articles, version 2, April 2011, pages 41 and following.

17 Opinion, para. 35.

18 She does not say so explicitly in her answer to the question posed (see Opinion, para. 124(1)), as she assumes that the componentarticles were made or assembled by other producers. In this regard, the answer is incomplete, since it should have addressed also the situation where the producer of the entire article also produces one or more components of it.

19 Art. 3.4, REACH Regulation.

20 Opinion, para. 48.

21 Opinion, para. 49.

22 Whether this is an accurate assessment is discussed in the conclusions section.

23 For this estimate, see http://www.toyota.co.jp/en/kids/faq/d/01/04/

24 See the discussion of the references to “articles or any parts thereof” in Annex XVII, above.

25 Article 36(1) of REACH deals with compliance documentation, but does not apply to articles (unless, maybe, it is also interpreted creatively).

26 Opinion, para. 51.

27 Art. 3.1, 3.2. 5, and 6.1, REACH Regulation

28 Opinion, para. 55.

29 Opinion, para. 81.

30 Opinion, para. 74.

31 Opinion, para. 75.

32 Even the German authorities, which are part of the dissenting group of authorities, have recognized this approach: “In many cases such questions can be answered theoretically, i.e. the presence of candidate substances can be discounted with a high probability and without analysis. If these questions cannot be answered theoretically, however, or there is no information available whether the paint used may contain a candidate substance, an analysis should be conducted if there is any doubt.” German REACH & CLP Helpdesk, Information from the German National Helpdesk on ‘Once an Article – Always an Article’ Fulfilment of the notification and information obligations concerning candidate substances in articles, September 2012.

33 Opinion, para. 87.

34 The theory also does not bode well for the stringency of judicial review of border carbon taxes and compensatory levies for “social dumping” and human rights violations.

35 For such an assessment, see Kogan, Lawrence, “REACH and International Trade Law” in Bergkamp, L. (ed.), The European Union REACH Regulation for Chemicals – Law and Practice, Oxford University Press, 2013 Google Scholar.

36 Art. 33, REACH Regulation.

37 Idem.

38 Opinion, para. 96.

39 Opinion, para. 96.

40 Opinion, para. 114.

41 Opinion, para. 114.

42 The French text of Article 33(1), REACH, reads as follows: “Tout fournisseur d'un article contenant une substance répondant aux critères énoncés à l'article 57 et identifiée conformément à l'article 59, paragraphe 1, avec une concentration supérieure à 0,1 % masse/masse (w/w), fournit au destinataire de l'article des informations suffisantes dont il dispose pour permettre l'utilisation dudit article en toute sécurité et comprenant, au moins, le nom de la substance.»

43 Note that she provides only an incomplete answer to the question posed by the Council of State, as she does not address the situation where the producer of the entire article also produces some of its components. Moreover, she fails to provide any guidance on the case of a complex article that incorporates componentarticles and SVHC–containing substances or mixtures that are not part of any component–article, only of the entire article; would no notification be required?

44 The European Court of Human Rights has permitted amicus curiae submissions for over two decades. For an empirical study of this practice, see Laura Van den Eynde. An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs Before the European Court of Human Rights. Netherlands Quarterly of Human Rights, 2013, Vol. 31/3, 271–313.

45 By 2020, the Commission intends to assess 440 substances for listing on the Candidate List. Commission, “Roadmap on Substances of Very High Concern,” 6 February 2013.

46 Whitman, James Q.. Consumerism Versus Producerism: A Study in Comparative Law. Yale Law Journal 117, 2007, pp. 340–406 CrossRefGoogle Scholar. The consumerism/producerism distinction is based on the extent to which law and policy is more inclined to see the individual as having rights in the guise of “consumer” or “producer.” While the US generally promotes “consumerism” and protects the rights of consumers and consumer sovereignty, the EU would pursue “producerism” and protect the rights of producers (including workers). Producerism, however, does not neglect the rights of consumers, but it protects consumer health and safety, rather than the economic interests of consumers.

47 Gordon Tullock, Public Choice, The New Palgrave Dictionary of Economics (edited by Steven N. Durlauf and Lawrence E. Blume). Second Edition, 2008, available at http://www.dictionaryofeconomics.com/article?id=pde2008_P000240

48 Art. 7.3 and 7.6, REACH Regulation.

49 Art. 126, Reach Regulation.

50 Lucas Bergkamp. A new court–made environmental liability regime for Europe. [2004] 4 Env. Liability, pp. 171-177. (commentary on Texaco Belgium SA, Judgment of the European Court of Justice (Second Chamber), 7 September 2004).

51 Art. 2.1.b and 2.1.C, Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, OJ L312/3.

52 Bergkamp, Lucas and Kogan, Lawrence, “Trade, the Precautionary Principle, and Post–Modern Regulatory Process: Regulatory Convergence in the Transatlantic Trade and Investment Partnership,” EJRR (2013), 493–507.Google Scholar