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

(Request for a preliminary ruling from the Conseil d’État (France)]

‛Reference for a preliminary ruling — Environment and protection of human health — Regulation (EC) No 1907/2006 (REACH Regulation) — Articles 7(2) and 33 — Substances of very high concern present in articles — Duties to notify and provide information — Calculation of threshold of 0.1% weight by weight’

Summary — Judgment of the Court (Third Chamber), 10 September 2015

See the text of the decision. (see para. 25)

Given the legislature’s intention to confer, through Article 77(2) of Regulation No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), as amended by Regulation No 366/2011, on the Secretariat of the European Chemicals Agency (ECHA) the task, inter alia, of providing technical and scientific guidance and tools where appropriate for the operation of that regulation, a document such as an ECHA Guidance document may be one of the factors to be taken into consideration in interpreting the REACH Regulation. However, despite the scientific and technical nature of the aspects relating to the chemical substances regulated by Regulation No 1907/2006, a document of that nature remains purely explanatory. The interpretation it gives of that regulation’s provisions is of no legislative effect whatsoever. It is a document drawn up by the ECHA and is not among the legal acts of the European Union referred to in Article 288 TFEU; accordingly it cannot be of a legally binding nature. (see para. 28)

It is clear from the definition of ‘article’ in Article 3(3) of Regulation No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), as amended by Regulation No 366/2011, that the classification of an object as an article within the meaning of that regulation turns on three factors. Firstly, the term ‘article’ refers only to objects which have undergone ‘production’. It therefore pertains only to manufactured objects, in contrast to objects in their natural state. Secondly, the production process must give the object in question ‘a special shape, surface or design’, except for inter alia physical or chemical properties. Thirdly, that shape, surface or design resulting from the manufacturing process must be more decisive for the function of the object in question than its chemical composition. In the case of a so-called ‘complex’ product because it is made up of a number of manufactured objects meeting the criteria laid down in Article 3(3) of Regulation No 1907/2006, that regulation does not contain any provisions governing specifically such a situation. The question whether a complex product itself may be classified as an article therefore turns solely on a determination according to the criteria laid down therein. Consequently, the classification as an article remains applicable to any object meeting the criteria in Article 3(3) and forming part of the composition of a complex product unless, following a production process, that object becomes waste or ceases to have the shape, surface or design which is more decisive in determining its function than its chemical composition. (see paras 47-50, 53, 54)

Regarding the duty of notification of substances of very high concern provided for in Article 7(2) of Regulation No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), as amended by Regulation No 366/2011, it is clear from a combined reading of Articles 3(4) and 7(2) of Regulation No 1907/2006 that the producers’ duty of notification concerns only those articles which they make or assemble themselves. By contrast, that duty is not applicable to an article which, although used by the producer as input, was made by a third party. (see paras 55, 57)

In the scenarios provided for in Article 7(2) of Regulation No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), as amended by Regulation No 366/2011, the producer is required to notify the European Chemicals Agency (ECHA) of the presence of substances of very high concern in the article that producer is making or assembling. If that article is subsequently used downstream by a second producer as input in the production of a complex product, that second producer is not then required also to notify the ECHA of the presence of the substance in question in that article. Such a notification would duplicate the one effected by the producer of that article. Such a redundant and needless burden is difficult to reconcile with the principle of proportionality observance of which is referred to in recital 130 in the preamble to that regulation. The foregoing considerations are applicable, mutatis mutandis, to the duty of notification importers have under Article 7(2) of Regulation No 1907/2006. It follows that, for the purposes of application of Article 7(2) of Regulation No 1907/2006, it is for the producer to determine whether a substance of very high concern identified in accordance with Article 59(1) of that regulation is present in a concentration above 0.1% weight by weight of any article it produces and, for the importer of a product made up of more than one article, to determine for each article whether such a substance is present in a concentration above 0.1% weight by weight of that article. (see paras 61-63, 83, operative part)