A decision of the Court of Justice of the European Union (CJEU), published on 10 September 2015, increases the stringency of the obligation for manufacturers to report the presence of substances classified as of very high concern.
According to the Reach Regulation of 2006, when a chemical substance said to be “of very high concern” for health or the environment due, in particular, to its carcinogenic, mutagenic or toxic properties, is present in a concentration exceeding 0.1% of the mass of an item, the producer or importer of the item must report this to the European Chemicals Agency (ECHA).
Now, some Member States raise questions concerning the application of Reach for products consisting of several items. Do manufacturers have to declare the substance when it has a concentration exceeding 0.1% of the total product or a concentration exceeding 0.1% of each item forming the product? To put an end to the diverse interpretations, in 2010 the European Commission and the ECHA published a series of documents which explain that notification is required whenever the substance exceeds 0.1% of the total product.
The French government, like its counterparts in Austria, Belgium, Denmark and Germany, is convinced that the threshold of 0.1% of the total product does not ensure a high level of protection for health. In June 2011, the French Ministry of Ecology issued an opinion specifying that notification is required whenever the substance represents 0.1% of an item. The federation of retailing and distribution companies (FCD) and the federation of DIY and home furnishing stores (FMB) then referred the matter to the “Conseil d’Etat” to request the withdrawal of the Ministry of Ecology’s opinion. The French High Court then decided to pose a preliminary question to the CJEU on the concept of the item.
The Court found in favour of the French state in a ruling of 10 September 2015, considering “that each of the items incorporated as a component of a complex product is subject to the obligations of notification and information in question, when they contain a substance of very high concern in a concentration exceeding 0.1% of their mass”.