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What is the ECHA?
The European Chemicals Agency (ECHA) is the driving force among regulatory authorities in implementing the EU's chemicals legislation for the benefit of human health and the environment as well as for innovation and competitiveness.
ECHA helps companies to comply with the legislation, advances the safe use of chemicals, provides information on chemicals and addresses chemicals of concern.
REACH regulation in general terms applies to:
(I) Substances as its own as chemical elements in its natural state or obtained through a manufacturing process.
(II) Substances in mixtures.
(III) Objects.REACH Regulation refers to alloys as "special mixtures" being treated in the same way as other mixtures under REACH. Alloy is defined by the REACH regulation as a metallic material, homogenous on a macroscopic scale, consisting of two or more elements so combined that they cannot be readily separated by mechanical means.
It is very important to define the role to be played under the REACH supply chain in order to know REACH obligations and therefore liabilities.There are different obligations under REACH, but registration obligations in general terms apply to substances manufactured or imported in quantities of one tone or more per year per manufacturer or importer.
Exemptions for registration or information obligations under REACH regulation:
1.- Substances, mixtures or articles in temporary storage or in a Free Zone provided that they do not undergo any treatment or processing) with a view to re- exportation, or in mere transit.
2.-Re importation of goods previously exported and registered.
3.-Substances listed in the Annex IV of REACH regulation.
4.-Substances listed in the Annex V of REACH regulation as:
Substances which result from a chemical reaction.
Substances which occur in nature, if they are not chemically modified as minerals, ores or ore concentrates.
Substances to be used for medicinal products, food, feeding stuffs or cosmetics.
The definition of the importer of records (from now to on "IOR") from a REACH regulation perspective and the definition of IOR from a customs regulation one are different, as example if goods are introduced in a Free Zone to undergo processing, the importation from a REACH regulation perspective takes place at the moment in which goods are placed under the Free Zone even if goods are finally re exported out of the EU. But from a customs perspective if the goods are finally re- exported out of the EU, no importation takes place.
Therefore it is crucial to determine the role to be played by every entity involved in a REACH supply chain as well as liabilities; in this sense INCOTERMS may also play an important role.
The accurate definition according to the REACH regulation of the goods to be imported (as substance, mixture or article) is an important factor to be taken into consideration.
Distributor of objects in general terms does not fall under REACH scope.
Ownership of the goods
This situation has been analyzed by ECHA for instance under a Sales Agency contract.
In the case of a Sales Agency with permanent establishment in the EU that acts as an intermediary:
“i.e. transmitting orders from a buyer to a non-EU supplier being paid for that service but taking no responsibility on the goods or the payment for the goods and not having their ownership at any stage, then, the sales agency is not to be considered as the importer for the purposes of REACH. The sales agency is not responsible for the physical introduction of the goods. (…) The Sales Agency does not choose the manufacturer from which to order the goods"
Therefore and based on various ECHA commentaries, as far as a company does not take title on the goods and therefore no responsibility over the goods, the company cannot be deemed in principle as IOR from a REACH regulation perspective. Taking liabilities on the goods and ownership on the goods allow taking liabilities as IOR from a REACH perspective.
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