Opinion of the Advocate General — ECLI:EU:C:2023:883
Date: 2023-11-16
Language of the case: Dutch
Subject matter: Environment;Approximation of laws;Research and technological development;Public health;REACH
Procedure: Reference for a preliminary ruling
Origin: Belgium

Translation C-654/22 – 1 
Case C-654/22 
Request for a preliminary ruling 
Date lodged: 
19 October 2022 
Referring court: 
Rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent 
(Belgium) 
Date of the decision to refer: 
17 October 2022 
Applicant: 
FOD Volksgezondheid, Veiligheid van de voedselketen & 
Leefmilieu 
Defendant: 
Triferto Belgium NV 
  
[…] 
Rechtbank van eerste aanleg (Court of First Instance) 
Oost-Vlaanderen (East Flanders) 
afdeling Gent (Ghent Division) 
sectie burgerlijke rechtbank (Civil Court Section) 
INTERIM JUDGMENT 
Question referred for a preliminary ruling 
Court of Justice of the European Union 
In the case: 
FOD VOLKSGEZONDHEID, VEILIGHEID VAN DE VOEDSELKETEN & 
LEEFMILIEU (BELGIAN FEDERAL PUBLIC SERVICE HEALTH, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 10. 2022 – CASE C-654/22 
 
2  
FOOD CHAIN SAFETY AND ENVIRONMENT), KBO: 0367.303.762, with 
its registered office at 1210 Sint-Joost-Ten-Node, […]; 
first party appearing voluntarily, 
[…] 
v 
TRIFERTO BELGIUM NV, KBO: 0405.608.765, 
with its registered office at 9000 Ghent, […]; 
second party appearing voluntarily, 
[…] 
THE RECHTBANK (COURT OF FIRST INSTANCE) RULES AS FOLLOWS: 
I. PROCEDURE 
On 10 February 2022, the parties together filed a joint application with this Court 
of First Instance and this Kamer (Chamber). […] 
[…] [procedural aspects irrelevant to the questions] 
II. RELEVANT FACTS AND BACKGROUND 
On 11 February 2020, the Federale Overheidsdienst Volksgezondheid, Veiligheid 
van de voedselketen en Leefmilieu (Belgian Federal Public Service Public Health, 
Food-Chain Safety and Environment; ‘the FOD Volksgezondheid’) conducted an 
audit at NV Triferto Belgium (‘Triferto’), in respect of compliance with 
Regulation 1907/2006 of 18 December 2006 concerning the Registration, 
Evaluation, Authorisation and Restriction of Chemicals (‘the REACH 
Regulation’).  
In 2019, Triferto purchased over 1 tonne of urea directly from the company 
Dreymoor Fertilizers Overseas PTE LTD in Singapore (‘Dreymoor’). 
Following this purchase, on 9 August 2019, the company Belor imported 
7,873.167 tonnes of urea into the European Union on behalf of Dreymoor. Belor 
registered the urea not as the only representative but as the alleged importer within 
the meaning of Article 6(1) of the REACH Regulation. It also made the customs 
declaration for the substance. After the initial purchase and call, a total of about 
four tonnes were additionally purchased and called by Triferto, at several further 
consecutive times. 
TRIFERTO BELGIUM 
 
3 
An agreement between Dreymoor and Belor is before the court in which the latter 
confirms being responsible for the physical importation of urea 46% into the EU 
with the vessel MV ‘HC SVEA KIM’, ‘in accordance with the REACH 
guidelines’.  
The FOD Volksgezondheid takes the view that not Belor but Triferto should be 
regarded as the importer within the meaning of Article 6 read in combination with 
Article 3 of the REACH Regulation. It was thus obliged to register the urea, which 
it failed to do. The FOD Volksgezondheid imposed a fine on Triferto of 
EUR 32 856.00.  
III. CLAIMS 
The FOD Volksgezondheid seeks a ruling ordering Triferto to pay the 
outstanding fine of EUR 32 856.00 plus statutory interest as of 6 January 2020. 
Triferto asks the Court of First Instance: ‘to rule that neither Article 5 nor 
Article 6 of the REACH Regulation was violated by it and that therefore there can 
be no question of any sanction pursuant to Articles 17, §1, 3°, a) and 17, §2, 4° a) 
of the de wet van 21 december 1998 betreffende de productnormen ter 
bevordering van duurzame productie- en consumptiepatronen en ter bescherming 
van het leefmilieu, de volksgezondheid en de werknemers (Law of 21 December 
1998 on product standards to promote sustainable production and consumption 
patterns and to protect the environment, public health and workers); 
- to dismiss as unfounded the claim of the FOD Volksgezondheid seeking 
payment of the aforementioned fine; 
- in the alternative, if the court considers that there is still uncertainty about 
the substance physically introduced into the customs territory of the Union by 
Belor not being covered by the exemption under Article 2.1. (b) of the REACH 
Regulation, or about there not being an obligation on Triferto (as purchaser of 
part of the shipment of urea that was stored in a bonded warehouse in Belgium 
without being responsible for physically introducing it into the customs territory 
of the Union) to register the substance anew, to refer a question to the Court of 
Justice of the European Union for a preliminary ruling before delivering its 
judgment.’  
[…] 
III. DISCUSSION 
1. 
On the applicable EU legislation 
REQUEST FOR A PRELIMINARY RULING OF 17. 10. 2022 – CASE C-654/22 
 
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The purpose of the REACH Regulation is to ensure a high level of protection of 
human health and the environment, including the promotion of alternative 
methods for assessment of hazards of substances. The aim is also to ensure the 
free circulation of substances on the internal market while enhancing 
competitiveness and innovation (Article 1 of the Regulation). 
Article 6(1) of the REACH Regulation provides as follows: ‘Save where this 
Regulation provides otherwise, any manufacturer or importer of a substance, 
either on its own or in one or more preparation(s), in quantities of 1 tonne or 
more per year shall submit a registration to the Agency.’  
An ‘importer’ within the meaning of the REACH Regulation is any natural or 
legal person established within the Union ‘who is responsible for import’ 
(Article 3(11) of the REACH Regulation. ‘Import’ is the physical introduction 
into the customs territory of the Union (Article 3(10) of the REACH Regulation). 
Under Article 2(1)(b) of the REACH Regulation, it is not applicable to substances, 
on their own, in a preparation or in an article, which are subject to customs 
supervision, provided that they do not undergo any treatment or processing, and 
which are in temporary storage, or in a free zone or free warehouse with a view to 
re-exportation, or in transit. 
2. 
Essential arguments of the parties 
2.1 
According to the FOD Volksgezondheid, the term importer within the meaning of 
the REACH Regulation should be interpreted as referring to the person who 
purchased the substance directly from the third country and not to the person who 
introduced/transported the substance into the Union. It refers in this regard to the 
explanation given on the ECHA website (at https://echa.europa.eu). 
It is of the view that registration should take place at the moment that the 
substance ordered was called by the buyer and placed under the free circulation or 
inward processing regime.  
2.2 
According to Triferto, the company that is responsible for the physical 
introduction of the substance must be considered the importer, apart from the 
person who purchased the substance. According to Triferto, companies can agree 
that the person who makes the customs declaration is also responsible for the 
import. This person should be considered the ‘importer’ within the meaning of the 
REACH regulation and is responsible for registration. According to Triferto, 
companies can also decide that a forwarding agent/logistics service provider 
makes the declaration, but that the final responsibility for the import lies with 
TRIFERTO BELGIUM 
 
5 
another company. In that case, the latter company should be regarded as the 
‘importer’ within the meaning of the REACH Regulation. In support of its view, 
Triferto refers to the ‘factsheet REACH en importeurs’ (‘REACH and importers 
fact sheet’) of the Netherlands Central Government (at 
https://www.chemischestoffengoedgeregeld.nl/content/factsheet-reach-en-
importeurs). 
Triferto is of the opinion that, except in the cases mentioned in Article 2 of the 
REACH Regulation, the registration of the substance should occur as quickly as 
possible, i.e. at the moment it is introduced into the Union. The fact that the 
substance is subsequently called by the buyer does not, according to Triferto, alter 
the foregoing. 
The lawyer representing Triferto, which has a presence both in the Netherlands 
and in Belgium, stressed at the hearing that in practice this difference in vision 
between the Netherlands and Belgian authorities leads to uncertainty with regard 
to the designation of the person to be regarded as responsible for the import and 
who should therefore perform the registration.  
3. 
Reference of the questions to the Court of Justice for a preliminary ruling 
The Court of First Instance considers that it appears necessary, before giving a 
ruling, to submit to the Court of Justice of the European Union for a preliminary 
ruling, in accordance with Article 267 TFEU, the questions formulated in the 
operative part of this judgment.  
V. DECISION OF THE COURT OF FIRST INSTANCE 
The Court of First Instance rules as follows after the exchange of arguments: 
The Court of First Instance reserves judgment until the Court of Justice of the 
European Union has given a preliminary ruling on the following questions: 
1. Must Articles 6(1), 3(10) and 3(11) of the REACH Regulation be interpreted 
as meaning that a registration obligation rests on the person who orders/purchases 
the substance from a non-EU manufacturer, even though all the arrangements for 
physically introducing the substance into the customs territory of the Union are in 
fact made by a third party who also expressly confirms being responsible for 
doing so? 
In answering the foregoing question, is it relevant whether the quantity 
ordered/purchased forms only part (but exceeds 1 tonne) of a larger shipment of 
the same substance from the same non-EU manufacturer which is introduced into 
REQUEST FOR A PRELIMINARY RULING OF 17. 10. 2022 – CASE C-654/22 
 
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the customs territory of the Union by that third party to be stored in a bonded 
warehouse?  
2. Must Article 2(1)(b) of the REACH Regulation be interpreted as meaning 
that a substance which is stored in a bonded warehouse (by placing it under 
procedure J – code 71 00 in box 37 of the single administrative document) also 
remains outside the scope of the REACH Regulation until it is removed at a later 
stage and placed under a different customs procedure (e.g. release for free 
circulation)? 
If so, must Articles 6(1) and 3(10) and 3(11) of the REACH Regulation be 
construed as meaning that, in that circumstance, the registration obligation rests 
on the person who has directly purchased the substance outside the Union and 
who calls for it (without having previously physically introduced the substance 
into the customs territory of the Union), even if the substance has already been 
registered by the third undertaking which previously physically introduced it into 
the customs territory of the Union?  
Thus delivered and pronounced in open court by the First Chamber of the Court of 
First Instance of East Flanders, Ghent Division, on Monday, 17 October 2022 
[…]. 
[…] [signatures]