Assembled article is no longer the reference for SVHC identification

On 10 September 2015, European Court of Justice (ECJ) made a ruling regarding REACH Regulation that each single article rather than an assembled article is the reference for the identification of substances of very high concern (hereinafter referred as “SVHC”). So the testing result obtained when assembled article is the reference for SVHC testing cannot be applied to such identification and will be invalid after the ruling.

In the judgment, ECJ made notes to the definition of “article” as the following: “article: means an object which during production is given a special shape, surface or design which determines its function to a greater degree than does its chemical composition”. Consequently, it lacks theoretic basis for the point that “It ceases to be an article when it is assembled or joined with other objects in order to form with them a complex product”. Under such circumstance, ECJ ruled that it was not reasonable to determine SVHC content by taking the final imported products as the reference.

There are two conclusions in the ruling:
“1. Article 7(2) of REACH Regulation, it is for the producer to determine whether a substance of very high concern 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.
2. Article 33 of REACH Regulation, it is for the supplier of a product one or more constituent articles of which contain(s) a substance of very high concern in a concentration above 0.1% weight by weight of that article, to inform the recipient and, on request, the consumer, of the presence of that substance by providing them, as a minimum, with the name of the substance in question.”

Actually European Commission issued “Update of Commission opinion – Substances in articles” to its member states back in February 2012. And ECHA also issued “Guidance on requirements for substances in articles” two month after that. European Commission holds the view that the article as supplied is the reference for the 0.1% threshold, regardless of how many articles and of which single articles it is made up. As interpreted, if the SVHC present in the product doesn’t exceed the threshold, relevant operators will have no penalties even when some important articles incorporated in the product exceed the threshold (w/w).

However, Norway and other six EU countries showed disapproval. Germany as well as Denmark, Austria, France, Belgium, Sweden and Norway issued guidance for suppliers-- "Once an Article – Always an Article" in July 2013 to specify that each single article incorporated rather than the final exported products shall be the reference for the calculation and identification of SVHC content. Once a spare part incorporated is produced as a single article, the spare part shall still be required to fulfill responsibility and obligation in relation to SVHC under REACH Regulation no matter how it is assembled or incorporated in a complex product.

For SVHC present in the products, it is difficult for both suppliers to comply and state members to enforce concerning the notification and information communication obligations as per requirements of REACH Regulation. Furthermore, the inconsistency of SVHC identification within the EU makes it tougher for suppliers and exporters. Undoubtedly, such ruling harmonises the identification requirements of SVHC within the EU. However, it also means a higher threshold for Chinese exporters to place their products in the EU market as more money and time are to be invested.

The ruling expressly provides that the single article is the reference for SVHC identification. So the testing result obtained when assembled article is the reference for SVHC testing cannot be applied to such identification and will be invalid after the ruling. There is a possibility that products prove to be “PASS” when assembled article is the reference for SVHC testing may fail if taking single article as the reference.

Taking the bicycle as example, the difference between calculations based on final products and single article can be seen as below:

	Reference	SVHC Content	Calculation of SVHC present in the article	Result
Calculate according to previous REACH Regulation before the ruling,	Total weight of coating frame: 2.9Kg (Total weight of bicycle: 6.5kg )	Containing certain SVHC 1,500ppm	1500ppm*2.9kg/6.5kg =669ppm	<0.1%, PASS
Requirements of the ruling (i.e. previous requirements of six EU countries)			Taking coating frame as the object, i.e., SVHC present in coating frame is 1,500ppm	> 0.1% (in Coating frame) pass on relevant information

Reminder:Businesses shall scrutinize your testing reports (if obtained). A re-evaluation for risks is necessary to decide whether to test the products again.