Joint letter on SCIP: the database for articles containing Substances of Very High Concern.

ACEM-APPLiA-COCIR-EPEE-EPTA-LE-TIE lay out recommendations on the SCIP Database.

We are writing to you on behalf of several industry associations representing manufacturing companies from a diverse and wide range of sectors (i.e. The signatories) with regard to the development of a database for articles containing Substances of Very High Concern.

As it had been already made clear in an ACEM/APPLiA/COCIR letter dated 13.05.2019 (cfr. accompanying letter), we insist that the scope of the database must be strictly in line with Article 33.1 of Regulation (EC) No 1907/2006 of the European Parliament and of the Council (REACH). We can only conclude that the proposed database fails to meet that requirement.

The arguments presented in the Commission’s Non-paper1 and in a Document2 of the European Chemicals Agency (ECHA), are not valid in our view. The following paragraphs explain our reasons and further recommendations for the future database.

Effet utile of Recital 38 of Directive 2018/851

The aforementioned documents aim to legitimise the request for information not subject to Article 33.1 of REACH, upholding that Recital 38 of Directive 2018/851 would grant such authority. It is therefore claimed that the effet utile of Recital 38 of Directive 2018/851 provides ECHA with the right to determine the scope of information requirements to be submitted to the database and that these must include information about waste.

The signatories would like to stress, however, that while a recital can help to shed light on the interpretation to be given to a legal rule, it can never itself constitute such a rule nor justify derogating from the actual provisions of a Union act. Recital 38 must therefore be interpreted within the scope of Article 33.1 REACH, as referred to by the wording of Article 9.1(i) of the Waste Framework Directive (WFD) 2008/98/EC. There is no room for speculation about the effet utile of Recital 38, as the legal text itself clearly defines the scope of the information requirements. Neither Recital 38 nor its effet utile gives ECHA a mandate to determine the scope of the information requirements or to ensure that such information is ‘sufficient’ or ‘useful’ for waste treatment operators.

ECJ Judgement in Case C-106/14 and ECHA’s “Guidance on Articles”

ECHA further attempts to substantiate its position by reference to an ECJ Judgement in Case C-106/143 and its Guidance on Articles4, explaining that safe use information in the future database must include those targeted at waste management services and consumers.

We would like to remind ECHA that Article 9.1(i) of the WFD only mentions Article 33.1 of REACH, which excludes consumers as addressees for information. Moreover, the ECJ Judgement in Case C-106/14 does not focus on the content of Article 33.1 REACH information itself. In fact, the Judgement fails to constitute a legitimate basis for ECHA’s views and makes explicitly clear that Article 33.1 of REACH does not apply to waste: It follows that an object meeting the criteria laid down in Article 2(2) of that same regulation ceases to be an ‘article’ for the purposes of the REACH Regulation when it becomes waste as defined in EU law.5

As ECHA’s Guidance on Articles is exclusively based on REACH and on the text of the Judgement, and neither of these sources validate the demand of information that pertain to waste, it appears that ECHA had already attempted to unilaterally extend the scope of the information requirements under Article 33.1 of REACH. Yet, ECHA Guidance documents are not legally binding; they do not constitute a legal act of the EU. Therefore, the Guidance on Articles is irrelevant for the determination of information requirements regarding the future database.

Resolving the Problem

In conclusion, ECHA is developing a database with information requirements going beyond the scope of Article 33.1 of REACH without any authority to do so, and the database will therefore not be in compliance with Union law.

In order to establish compliance, we would recommend to design formats and submission tools, which request only mandatory information that are well within the scope of REACH 33.1. Further information requirements may be provided on a voluntary basis, e.g. information on concentration ranges, material declarations, information targeted at consumers and the safe use of waste. Please kindly refer to the Annex I, which is accompanying this letter, to have a general overview of our recommendations highlighted in red.

We would like to reiterate our commitment towards a solution that satisfies the legal framework of the database and thus ensures a stable environment for all stakeholders. We remain at your disposal to discuss the points we have raised and welcome any further exchange.

Download the joint letter.