1 This request for a preliminary ruling concerns the interpretation of Article 2(1)(b), Article 3(10) and (11) and Article 6(1) of 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 (OJ 2006 L 396, p. 1, and corrigendum OJ 2007 L 136, p. 3), as amended by Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 (OJ 2008 L 353, p. 1) (‘the REACH Regulation’).
2 The request has been made in proceedings between the FOD Volksgezondheid, Veiligheid van de voedselketen & Leefmilieu (FPS (Federal Public Service) for Health, Food Chain Safety and the Environment, Belgium) (‘the FPS for Health’), on the one hand, and Triferto Belgium NV (‘Triferto’), established in Ghent (Belgium), on the other, concerning a fine imposed on the latter for failure to fulfil the obligation to register substances laid down in Article 6(1) of the REACH Regulation.
3 Under recitals 10, 16, 17 and 19 of the REACH Regulation: ‘(10) Substances under customs supervision which are in temporary storage, in free zones or free warehouses with a view to re-exportation or in transit are not used within the meaning of this Regulation and should therefore be excluded from its scope. The carriage of dangerous substances and of dangerous mixtures by rail, road, inland waterways, sea or air should also be excluded from its scope as specific legislation already applies to such carriage. … (16) This Regulation lays down specific duties and obligations on manufacturers, importers and downstream users of substances on their own, in mixtures and in articles. This Regulation is based on the principle that industry should manufacture, import or use substances or place them on the market with such responsibility and care as may be required to ensure that, under reasonably foreseeable conditions, human health and the environment are not adversely affected. (17) All available and relevant information on substances on their own, in mixtures and in articles should be collected to assist in identifying hazardous properties, and recommendations about risk management measures should systematically be conveyed through supply chains, as reasonably necessary, to prevent adverse effects on human health and the environment. … … (19) Therefore, the registration provisions should require manufacturers and importers to generate data on the substances they manufacture or import, to use these data to assess the risks related to these substances and to develop and recommend appropriate risk management measures. To ensure that they actually meet these obligations, as well as for transparency reasons, registration should require them to submit a dossier containing all this information to the [European Chemicals Agency (ECHA)]. Registered substances should be allowed to circulate on the internal market.’
4 Article 1 of that regulation, entitled ‘Aim and scope’, provides, in paragraph 1 thereof: ‘The purpose of this 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.’
5 Article 2 of that regulation, entitled ‘Application’, states, in point (b) of paragraph 1 thereof: ‘This Regulation shall not apply to: … (b) substances, on their own, in a mixture 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’.
6 Article 3 of the REACH Regulation, entitled ‘Definitions’, provides, in paragraphs 10 to 14 and paragraph 24 thereof: ‘For the purposes of this Regulation: … 10. import: means the physical introduction into the customs territory of the Community; 11. importer: means any natural or legal person established within the Community who is responsible for import; 12. placing on the market: means supplying or making available, whether in return for payment or free of charge, to a third party. Import shall be deemed to be placing on the market; 13. downstream user: means any natural or legal person established within the Community, other than the manufacturer or the importer, who uses a substance, either on its own or in a mixture, in the course of his industrial or professional activities. …; 14. distributor: means any natural or legal person established within the Community, including a retailer, who only stores and places on the market a substance, on its own or in a mixture, for third parties; … 24. use: means any processing, formulation, consumption, storage, keeping, treatment, filling into containers, transfer from one container to another, mixing, production of an article or any other utilisation’.
7 Article 5 of the REACH Regulation, entitled ‘No data, no market’, is worded as follows: ‘Subject to Articles 6, 7, 21 and 23, substances on their own, in mixtures or in articles shall not be manufactured in the Community or placed on the market unless they have been registered in accordance with the relevant provisions of this Title where this is required.’
8 Article 6 of that regulation, entitled ‘General obligation to register substances on their own or in mixtures’, provides, in paragraph 1 thereof: ‘Save where this Regulation provides otherwise, any manufacturer or importer of a substance, either on its own or in one or more mixture(s), in quantities of one tonne or more per year shall submit a registration to [ECHA].’
9 Under Article 10 of that regulation, entitled ‘Information to be submitted for general registration purposes’: ‘A registration required by Article 6 or by Article 7(1) or (5) shall include all the following information: (a) a technical dossier including: … … (b) a chemical safety report when required under Article 14, in the format specified in Annex I. The relevant sections of this report may include, if the registrant considers appropriate, the relevant use and exposure categories.’
10 Article 21 of the REACH Regulation, entitled ‘Manufacturing and import of substances’, states, in the first subparagraph of paragraph 1 thereof: ‘A registrant may start or continue the manufacture or import of a substance or production or import of an article, if there is no indication to the contrary from [ECHA] in accordance with Article 20(2) within the three weeks after the submission date, without prejudice to Article 27(8).’
11 Article 22 of that regulation, entitled ‘Further duties of registrants’, provides, in paragraph 1 thereof: ‘Following registration, a registrant shall be responsible on his own initiative for updating his registration without undue delay with relevant new information and submitting it to [ECHA] in the following cases: …’
12 Article 5 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the Customs Code’), entitled ‘Definitions’, provides, in points 3, 11 and 17 thereof: ‘For the purposes of the Code, the following definitions shall apply: … (3) “customs controls” means specific acts performed by the customs authorities in order to ensure compliance with the customs legislation and other legislation governing the entry, exit, transit, movement, storage and end-use of goods moved between the customs territory of the Union and countries or territories outside that territory, and the presence and movement within the customs territory of the Union of non-Union goods and goods placed under the end-use procedure; … (11) “temporary storage declaration” means the act whereby a person indicates, in the prescribed form and manner, that goods are in temporary storage; … (17) “temporary storage” means the situation of non-Union goods temporarily stored under customs supervision in the period between their presentation to customs and their placing under a customs procedure or re-export’.
13 The procedure for the temporary storage of goods is regulated by Articles 144 to 152 of the Customs Code, which are set out in Section 3 of Chapter 2 of Title IV of that code. Under that procedure, goods not originating in the European Union (‘non-Union goods’) are in temporary storage from the moment they are presented to customs. Those goods may remain under that procedure for a maximum period of 90 days.
14 The customs transit procedure is the subject of Articles 226 to 236 of the Customs Code (which form part of Section 1 of Chapter 2 of Title VII of that code) and includes the external transit procedure, which permits non-Union goods to be moved from one point to another within the customs territory of the Union without being subject to import duty, other charges, or commercial policy measures. The customs transit procedure also includes the internal transit procedure, which permits Union goods to be moved from one point to another within the customs territory of the Union, via a country or territory outside that customs territory, without any change in their customs status.
15 The customs warehousing procedure is governed by Articles 240 to 242 of the Customs Code, which are set out in Section 2 of Chapter 3 of Title VII of that code. That procedure permits the storage of non-Union goods in premises or any other location authorised for that procedure, known as ‘customs warehouses’, by the customs authorities and under customs supervision. Customs warehouses may be available for use by any person for the customs warehousing of goods (public customs warehouse), or for the storage of goods by the holder of an authorisation for customs warehousing (private customs warehouse).
16 Section 3 of Chapter 3 of Title VII of the Customs Code contains Articles 243 to 249 of that code, which concern the customs procedure in the free zone, under which goods are placed under suspension of, inter alia, import duties and other charges.
17 In 2019, Triferto ordered more than one tonne of urea from Dreymoor Fertilizers Overseas PTE LTD, established in Singapore. The goods came from a non-member country and the agreed place of delivery was Ghent. At the request of the latter company, Belor-Eurofert Gmbh (‘Belor’), established in Bamberg (Germany), physically introduced the shipment of urea at issue in the main proceedings into the European Union and stored it in a customs warehouse in Ghent. Belor had previously, by declaring itself an importer, within the meaning of Article 6(1) of the REACH Regulation, submitted to ECHA a registration for the urea at issue in the main proceedings and made the customs declaration for those goods.
18 Following a check carried out on 11 February 2020 to verify compliance with the REACH Regulation, the FPS for Health took the view that it was Triferto, and not Belor, that had to be regarded as the importer, within the meaning of the combined provisions of Articles 3 and 6 of the REACH Regulation. Considering that it was for Triferto to submit a registration for the urea at issue in the main proceedings, the FPS for Health imposed a fine of EUR 32856 on that company.
19 By a joint application lodged on 10 February 2022, Triferto and the FPS for Health brought an action before the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Court of First Instance, East Flanders, Ghent Division, Belgium), which is the referring court.
20 Recalling the relevant provisions of EU law, that court raises the question of the interpretation of the concept of ‘importer’ within the meaning of Article 3(11) of the REACH Regulation, as that concept is, in its view, of decisive importance for the correct application of Article 6(1) of that regulation.
21 In addition, the referring court raises the question of the interpretation of Article 2(1)(b) of the REACH Regulation, according to which that regulation is not applicable to substances, on their own, in a mixture 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, in a free zone or free warehouse with a view to re-exportation, or in transit.
22 That court states that, according to the FPS for Health, the concept of ‘importer’, within the meaning of the REACH Regulation, must be interpreted as referring to the person who has directly purchased a substance in a third country and not to the person who has physically introduced and/or transported that substance into the European Union. The FPS for Health relies, in that regard, on the information provided on ECHA’s website.
23 The referring court indicates that, by contrast, Triferto submits that the undertaking responsible for the physical introduction of the substance concerned must be regarded as the importer of that substance, irrespective of the person who purchased it. That company also submits that it is open to the undertakings concerned to agree either that the undertaking which makes the customs declaration is the importer, within the meaning of the REACH Regulation, and is therefore responsible for registration with ECHA, or that the final responsibility for import lies with an undertaking other than the agent or the logistics service provider, in which case that undertaking is the importer, within the meaning of that regulation. Triferto relies in that regard on a thematic sheet, relating to that regulation and to importers, published on the internet by the Netherlands authorities.
24 In those circumstances, the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Court of First Instance, East Flanders, Ghent Division) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must [Article 6(1) of the REACH Regulation, as well as Article 3(10) and (11) thereof,] be interpreted as meaning that a registration obligation rests on the person who orders [or] 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 [or] 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 the customs territory of the Union by that third party to be stored in a [customs] warehouse? (2) Must Article 2(1)(b) of the REACH Regulation be interpreted as meaning that a substance which is stored in a [customs] 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 ([such as] release for free circulation)? If so, must [Article 6(1) of the REACH Regulation, as well as Article 3(10) and (11) thereof,] 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?’
25 By the first part of its second question, which it is appropriate to examine first, the referring court asks, in essence, whether Article 2(1)(b) of the REACH Regulation is to be interpreted as meaning that the exclusion from the scope of that regulation laid down in that provision applies only to substances, on their own, in a mixture or in an article, which are subject to customs supervision and which do not undergo any treatment or processing, where those substances are placed in one of the situations expressly referred to in that provision.
26 Under Article 2(1)(b) of the REACH Regulation, that regulation is not applicable to substances ‘[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’.
27 It follows that the REACH Regulation is not applicable to substances presented to customs which satisfy a twofold condition, namely (i) those substances do not undergo any treatment or processing and (ii) they are placed in one of the situations referred to in that provision.
28 In the present case, it is apparent from the information provided by the referring court in its second question that the substance at issue in the main proceedings underwent customs supervision during which it was placed under procedure J - code 71 00, box 37, of the single administrative document. That code indicates that the substance was placed under the customs warehousing procedure (71) and that there was no previous customs procedure involved (00).
29 As has been noted in paragraph 27 of the present judgment, in order for the exclusion from the scope of the REACH Regulation set out in Article 2(1)(b) of that regulation to be applicable, it is necessary, inter alia, that the substance in question be placed in one of the situations referred to in that provision, that is to say, it must be in temporary storage, in a free zone or free warehouse for re-export, or in transit.
30 Given that the customs warehousing procedure is not one of those situations, it must be held that the referring court is asking, in essence, whether the customs warehousing procedure, covered by Articles 240 to 242 of the Customs Code, which are set out in Section 2 of Chapter 3 of Title VII of that code, may nevertheless, for the purposes of delimiting the scope of the REACH Regulation, be equated with one of those situations.
31 As regards, in the first place, temporary storage, this is referred to in points 11 and 17 of Article 5 of the Customs Code and regulated by Articles 144 to 152 of that code, which form part of Section 3 of Chapter 2 of Title IV thereof. As the Advocate General noted in point 34 of her Opinion, this situation is an alternative to the goods being placed under a customs procedure, that is to say also to their storage in a customs warehouse, with the result that the latter procedure cannot be equated with temporary storage.
32 In the second place, as regards the procedure for placing goods in a free zone, as referred to in Article 2(1)(b) of the REACH Regulation, although that procedure, like customs warehousing, is among the storage procedures which are the subject of Chapter 3 of Title VII of the Customs Code, it is nevertheless governed by another section of that chapter, namely Section 3 thereof, which contains Articles 243 to 249 of that code. Therefore, as the Advocate General observed in point 35 of her Opinion, those two customs procedures are mutually exclusive.
33 In the third place, as regards the free warehousing procedure, also referred to in Article 2(1)(b) of the REACH Regulation, it is sufficient to note that, as the Advocate General pointed out in point 36 of her Opinion, that procedure, at the time of the facts giving rise to the dispute in the main proceedings, was no longer provided for by the Customs Code.
34 In the fourth and last place, the transit procedure constitutes, as the Advocate General stated in point 38 of her Opinion, a specific customs procedure which is an alternative to the storage procedures and is covered by Chapter 2 of Title VII of the Customs Code - and therefore cannot be equated with the customs warehousing procedure either.
35 It follows that the customs warehousing procedure is a specific customs procedure which cannot be equated with one of the situations listed in Article 2(1)(b) of the REACH Regulation.
36 Consequently, as that provision is not applicable to substances which are subject to the customs warehousing procedure, those substances fall within the scope of the REACH Regulation, with the result that they must be regarded as having been imported, within the meaning of Article 3(10) of that regulation, as soon as they are physically introduced for the first time into the customs territory of the Union.
37 The conclusion set out in paragraph 35 of the present judgment is supported by the objectives of the REACH Regulation as well as by the ‘No data, no market’ rule laid down in Article 5 of that regulation.
38 In that regard, first, under Article 1(1) of the REACH Regulation, the purpose of that 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’. Secondly, Article 5 of that regulation prohibits, in principle, the placing on the market of a substance unless it has been registered in accordance with the relevant provisions of that regulation, where this is required. Under Article 3(12) of that regulation, import is deemed to be placing on the market.
39 In accordance with the case-law of the Court, the REACH Regulation does not aim to regulate exports of substances, but establishes a legal framework applying to manufacturers, to importers and to downstream users when they manufacture or import substances, place substances on the market or use substances, in order to ensure the free circulation of goods and a high level of protection of human health and the environment in the internal market (see, to that effect, judgment of 27 April 2017, Pinckernelle, C‑535/15, EU:C:2017:315, paragraph 43). Provided that the condition relating to the absence of treatment and processing, laid down in Article 2(1)(b) of that regulation, is satisfied, it must be held that, as is apparent from recital 10 thereof, substances which are in one of the situations referred to in that provision are not, at that stage, being used in the European Union. Therefore, the exclusion from the scope of that regulation laid down in that provision is based on the fact that it is unlikely that the risks associated with those substances will materialise in the European Union.
40 Consequently, the answer to the first part of the second question is that Article 2(1)(b) of the REACH Regulation must be interpreted as meaning that the exclusion from the scope of that regulation laid down in that provision applies only to substances, on their own, in a mixture or in an article, which are subject to customs supervision and which do not undergo any treatment or processing, where those substances are placed in one of the situations expressly referred to in that provision.
41 In view of the answer given to the first part of the second question, there is no need to answer the second part of that question.
42 By its first question, the referring court asks, in essence, whether Article 3(10) and (11) of the REACH Regulation, as well as Article 6 thereof, are to be interpreted as meaning that a buyer of more than one tonne per year of a substance imported into the European Union and falling within the scope of that regulation is not itself required to submit the registration for that substance where another person established in the European Union has assumed responsibility for importing that substance into the European Union.
43 Under Article 6(1) of the REACH Regulation, an importer who imports a substance in quantities of one tonne or more per year is to submit a registration to ECHA.
44 In that regard, it follows from the wording of Article 3(10) and (11) of the REACH Regulation that, for the purposes of that regulation, first, ‘import’ is the ‘physical introduction [of a substance] into the customs territory of the [Union]’ and, second, an ‘importer’ is ‘any natural or legal person established within the [European Union] who is responsible for import’.
45 As the Advocate General observed in points 48 and 49 of her Opinion, although it cannot be ruled out that responsibility for the physical introduction of substances into the customs territory of the Union may be attributed to several natural or legal persons established in the European Union, that fact cannot, however, lead to an interpretation of Article 3(11) and Article 6 of the REACH Regulation as meaning that each of those persons must submit a registration for those substances.
46 It is true that, read in the light of recital 17 of that regulation, those provisions seek to ensure that all relevant available information on the substances subject to that regulation is collected in order to assist in identifying the hazardous properties of those substances. Thus, any quantity from one tonne per year of such a substance manufactured in, or imported into the European Union must be registered. That said, in order for that objective to be attained, it is not necessary for several persons who may be classified as an ‘importer’ to submit, in connection with the same import, a registration for the substances at issue. Provided that its registration is complete, it is sufficient that only one of those persons fulfils the obligation arising from Article 6(1) of the REACH Regulation.
47 In the present case, it is apparent from the file before the Court that only Belor and Triferto may be covered by the concept of ‘importer’ within the meaning of Article 3(11) of the REACH Regulation.
48 In that regard, it should be noted that, although ECHA’s guidance on registration, according to which it is necessary to identify the importer according to the circumstances of each case, may be of some use in practice by providing information making it possible to identify the person‘responsible for import’, within the meaning of Article 3(11) of the REACH Regulation, the fact remains that that guidance is not binding (see, to that effect, judgment of 10 September 2015, FCD and FMB, C‑106/14, EU:C:2015:576, paragraph 29).
49 Furthermore, as the Advocate General, in essence, emphasised in points 51 to 53 of her Opinion, it follows from that guidance that, although the person responsible for import of a substance is often the recipient of that substance, it cannot be ruled out that such responsibility may be assumed by the person who arranges that import, or even by the seller of that substance.
50 Therefore, that guidance cannot usefully be relied on in order to exclude the possibility that a person in the supply chain may assume, under certain conditions, responsibility for the import and registration of a substance under the REACH Regulation.
51 Responsibility for the import and registration of an imported substance cannot, however, be assumed in order to circumvent the obligations arising from the REACH Regulation by distributing the quantity of that substance between different importers, such that the quantity thus allocated to each of them is below the threshold of the registration obligation or one of the thresholds requiring the provision of more comprehensive information.
52 It follows, moreover, from Article 10 of the REACH Regulation that a registration for a substance must include a complete and detailed dossier on that substance and a chemical safety report for that substance. It also follows from the first subparagraph of Article 22(1) of that regulation that the registrant is responsible, in certain circumstances, on its own initiative, for updating its registration without undue delay with relevant new information, which it is required to submit to ECHA.
53 It follows that, as the Advocate General noted in point 56 of her Opinion, the assumption of responsibility for the import of a substance, within the meaning of Article 3(10) of the REACH Regulation, requires that all the operators involved in that import have a legitimate expectation that the person assuming responsibility for the registration of that substance has the necessary knowledge and capacities to fulfil the obligations arising from Articles 10 and 22 of that regulation. Thus, those operators must exercise due diligence by ensuring, prior to that import, that that person has actually registered the quantity of the substance concerned with ECHA.
54 In the present case, given that there is nothing in the file before the Court to indicate that Belor assumed responsibility for the import of the substance at issue in the main proceedings in order to circumvent the obligations laid down by the REACH Regulation and assuming that it is established that the registration submitted by that company related, comprehensively, to that substance as concerned by that import, which it is for the referring court to ascertain, it cannot be held that Triferto was itself required to register that substance.
55 It follows from all the foregoing considerations that Article 3(10) and (11) of the REACH Regulation, as well as Article 6 thereof, must be interpreted as meaning that a buyer of more than one tonne per year of a substance imported into the European Union and falling within the scope of that regulation is not itself required to submit the registration for that substance where (i) another person established in the European Union has assumed responsibility for importing that substance into the European Union, (ii) that person has submitted that registration, and (iii) there is nothing to show that the obligations relating to the registration mechanism established by that regulation have been circumvented.
56 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.