Case C‑650/15 P

Polyelectrolyte Producers Group GEIE (PPG)

and

SNF SAS

v

European Chemicals Agency (ECHA)

(Appeal — Regulation (EC) No 1907/2006 (REACH) — Article 57 — Substances of very high concern — Identification — Article 2(8)(b) — Exemption — Article 3(15) — Definition of ‘intermediate’ — Acrylamide)

Summary — Judgment of the Court (First Chamber), 25 October 2017

Approximation of laws—Registration, evaluation, authorisation and restriction of chemicals—REACH Regulation—Uses or categories of use exempted from the authorisation requirement—Exemption in favour of on-site isolated intermediates and transported isolated intermediates—Effect on the identification of such an intermediate as of very high concern—None

Article 3(15) of Regulation No 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) requires three conditions to be fulfilled for the use of a substance to be capable of being regarded as use of an intermediate. The first of those conditions concerns the intended purpose at the time of the manufacture and use of a substance as an intermediate, which consists of transforming that substance into another. The second condition concerns the technical means by which that processing takes place, namely a chemical process known as ‘synthesis’. The third condition restricts the scope of the definition of ‘intermediate’ to uses of a substance which remain confined to a controlled environment, which may be either the equipment within which synthesis takes place, or the site in which the manufacturing and synthesis takes place or to which that substance is transported. Since the intended purpose at the time of the manufacture and use of the substance is to transform it into another substance, the first of the three conditions which derive from Article 3(15) of Regulation No 1907/2006 in order for a substance to be classified as an ‘intermediate’ is satisfied. Article 3(15) of that regulation contains no additional criterion allowing a differentiation to be made according to whether that purpose was primary or secondary in nature or examination of whether or not the chemical process by which one substance is transformed into another is indistinguishable from the end use for which that substance is intended. (see paras 33, 38)

See the text of the decision. (see para. 44)

In that regard, Article 1(1) of Regulation No 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), states that the purpose of the 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, as well as the free circulation of substances on the internal market while enhancing competitiveness and innovation. To that end, that regulation introduces an integrated system for monitoring chemical substances, including registration, evaluation and authorisation, together with possible restrictions on their use. Regulation No 1907/2006 makes substances ‘of very high concern’ subject to careful attention. Those substances are thus subject to the authorisation scheme laid down in Title VII of that regulation which, pursuant to Article 55 of that regulation, is intended to ensure the good functioning of the internal market while assuring that the risks from substances of very high concern are properly controlled and that these substances are progressively replaced by suitable alternative substances or technologies where these are economically and technically viable. The first stage under that authorisation scheme is the procedure for identifying substances of very high concern on the basis of the criteria set out in Article 57 of Regulation No 1907/2006. The second stage is the inclusion of those substances on the list of substances subject to authorisation set out in Annex XIV to that regulation, and the third and final stage concerns the procedure that leads, if appropriate, to the authorisation of a substance of very high concern. (see paras 54-56)