Companies finally lose REACH legal challenge on monomers

EU court confirms REACH applies to reacted monomers, dismisses claims of unfairness against importers
07-Jul-2009
A legal challenge of the REACH Regulation's requirements for registration of monomers in polymers was firmly rejected by the European Court of Justice (ECJ) today.

The ruling brings legal clarity to the issue but will disappoint many companies who were still hoping for a last-minute reprieve from having to register monomers under the REACH Regulation.

Four firms - SPCM of France, Lake Chemicals and Minerals (UK), C.H. Erbslöh (Germany) and Hercules (USA) - initiated the legal challenge in the UK in 2007, even before the REACH Regulation entered into force. Their complaint on the question of monomers was referred to the ECJ which gave a preliminary ruling earlier this year. Today, the ECJ ruled on the two specific issues in question:

• That the companies were correct in interpreting Article 6 (3) of the REACH to mean only unreacted monomers in polymers, providing they are not impurities. However, the ECJ disagreed. It concluded that "the concept of monomer substances in Article 6 (3)... relates only to reacted monomers which are incorporated in polymers". Unreacted monomers, it notes, must be registered as substances according to Article 6 (1) and 6 (2).

• That the application of Article 6 (3) to manufacturers or importers of polymers [is] unlawful by reason that the requirements are irrational, discriminatory or disproportionate. The ECJ ruled on these as follows:

• Irrationality and proportionality: Given that there are a limited number of monomer substances, a 12-year validity period for registered substances and that REACH strives to enable data-sharing in order to reduce costs, "the obligation to register reacted monomer substances in polymers does not appear to be manifestly disproportionate in the light of the free movement of goods on the internal market open to fair competition."

• Discriminatory: The four firms claimed that importers are at a disadvantage in complying with Article 6 (3) because it is much more difficult to obtain the necessary registration data from suppliers outside the EU. However, the ECJ concluded that EU manufacturers and importers are treated identically as they have to follow the same processes and that if importers were treated differently, this would be unfair to EU manufacturers. Therefore, "no infringement of the principle of equal treatment can be found".

• Overall: The ECJ concluded that "it follows from all of the foregoing that examination of the second question has revealed no factor of such a kind as to affect the validity of Article 6 (3) of the REACH Regulation."

The firms had already lost a further complaint concerning the need to separately register individual subsatnces in preparations in the UK High Court). The Court also gave a nationally applicable interpretation in response to a third issue concerning the definition of "supply chain".

A decision on payment of costs has been referred back to the UK High Court.