Is it an offence if you don’t comply with REACH?
Yes, it is a criminal offence to fail to comply with most duties in REACH. It is also an offence to cause or permit others to contravene a listed REACH provision. There are a number of additional offences such as failure to comply with enforcement notices, providing false or misleading information, or obstructing inspectors.
There are some duties in REACH that will not attract criminal penalties for non-compliance, as civil law processes are more suitable to remedy the situation. Examples are information sharing requirements in SIEFs, or requirements regarding joint submission of data to ECHA.
Schedule 1 of the REACH Enforcement Regulations 2008 contains ‘the listed REACH provisions’, any breach of which will be an offence.
What are the penalties for non-compliance?
The levels of penalties depend upon where the case is heard:
- in ‘lower’ courts, e.g. Magistrates Courts, a fine of up to £5,000 and/or up to 3 months imprisonment, and
- in ‘higher’ courts, e.g. Crown Courts, an unlimited fine and/or up to 2 years imprisonment.
The penalties reflect the maximum available penalties under the European Communities Act 1972 (the ‘enabling Act’ for the REACH Enforcement Regulations 2008).
Can people be sent to prison for non-compliance with REACH?
Yes – there is provision in the REACH Enforcement Regulations 2008 for imprisonment following conviction for an offence, but this would only be expected for the most serious or persistent offences.
In addition, those with duties under REACH are often legal entities rather than natural persons, e.g. a limited company. When prosecutions are brought, it is typically against these legal entities rather than individuals in their own right. A fine may therefore be the only option in some cases. Even so, the REACH Enforcement Regulations 2008 state that where offences committed by a ‘body corporate’ are shown to have been committed with the ‘consent or connivance’ of, or are due to the neglect of, a senior person in that organisation, they too are guilty of the offence and can be prosecuted separately.
What powers do enforcing authorities have to enforce REACH?
The powers of enforcing authorities are given in Schedule 6 of the REACH Enforcement Regulations 2008. These generally correspond with powers granted to them under existing health and safety, consumer protection or environmental protection legislation.
How are you going to enforce against importers if HM Revenue and Customs (HMRC) are not named in the enforcement legislation?
HMRC will have a significant role in the enforcement of REACH despite not being a named enforcer. HMRC will assist the enforcing authorities by detaining goods at import, either when asked to do so, or if HMRC suspect that goods may be imported which are in breach of REACH. HMRC can also share intelligence with, and assist criminal investigations by, the named enforcing authorities.
Will customs prevent my goods from being imported if I don’t provide them with a registration / pre-registration number?
HM Revenue and Customs (HMRC) are not named as an enforcing authority in the REACH Enforcement Regulations 2008, although they still play a significant role in REACH enforcement. At the moment, there are no formal requirements in relation to REACH and shipping documents, although the European Commission is considering Community-wide proposals in relation to this. Currently, HMRC do not require evidence of REACH pre-registration or registration for substances imported into the UK, and there is no legal requirement to include pre-registration numbers in any import or export documents.
In what circumstances will you seek to take prosecutions against offenders?
Enforcement decisions are made on a case-by-case basis. As such, it is not possible to generalise about the circumstances in which a prosecution will, or will not, be brought. Each enforcing authority has its own enforcement policy which will determine the circumstances in which a prosecution is suitable. Typically a prosecution must be ‘proportionate’ to the offence committed, and in the public interest.
How far do I have to go to show compliance? / Is there a ‘due diligence’ defence in REACH?
REACH contains no ‘due diligence’ defence or similar provisions, and so no such provision has been made in the REACH Enforcement Regulations 2008. On a strict interpretation of the law, therefore, it is not a defence to show that others are in fact responsible for an offence you may have committed, even if you have committed the offence in good faith and after having done all you can to comply.
As a matter of enforcement practice, enforcement decisions are made on a case-by-case basis. It is not possible, therefore, to lay down any definite rules as to when enforcement action will or will not be taken. However, the UK enforcing authorities recognise the scale of the tasks imposed by REACH on industry. It is reasonable to expect they will look more favourably on a dutyholder who has taken all reasonable steps and made every effort to comply than on a dutyholder who has not. Courts will also take mitigating circumstances into account when determining the appropriate level of penalty.
If a business discovers they have a registration duty but only after 1 December 2008 (and they have not pre-registered), what enforcement action will you take?
Enforcement decisions are made on a case-by-case basis and it is not possible to generalise about what kind of enforcement action will be taken. It is important to recognise that being unaware of REACH (or any other law) is not an excuse for non-compliance, and REACH does not allow for any kind of ‘due diligence’ defence. However, enforcing authorities will usually consider the efforts made by companies to comply when deciding what kind of enforcement action to take. If legal proceedings are taken, Courts will usually consider mitigating circumstances surrounding a breach of law.
Regulatory authorities in the UK have to act according to certain guidelines. They usually have a publicly-available enforcement policy that guides decisions about how enforcement will normally be carried out. Within the context of these guidelines and policies, enforcing authorities make decisions on a case-by-case basis, applying general principles but also taking into account individual circumstances.
As UK REACH Competent Authority, HSE will enforce registration related duties within the wider framework of the HSE enforcement policy. ‘Enforcement’ is a broad term, and includes a variety of different approaches to securing compliance with the law and managing risks, which are HSE’s overall enforcement aims. Enforcement can involve prosecution, but more usually it involves less forceful approaches. These include issuing enforcement notices to change behaviour, as well as approaches to help companies understand their legal duties and how to meet them.
What should I do if I missed the pre-registration deadline but have a registration duty?
Article 5 of REACH prohibits the manufacture, import (into the EU) and/or supply of substances (on their own, in preparations or intentionally released from articles) that have not been registered according to the requirements of REACH. This prohibition has applied since 1 June 2008 to all EU-based manufacturers, importers and only representatives of 'in scope' substances, though from 1 June to 1 December 2008 those companies that submitted a valid pre-registration to ECHA are able to benefit from extended registration deadlines.
This pre-registration window closed on 1 December 2008, and those that did not pre-register cannot take advantage of the extended deadlines. The only exception to this is for those businesses who become a manufacturer or importer of a phase-in substance for the first time after 1 December 2008 (see question 11 below). This means that businesses already importing or manufacturing a registerable substance before 1 December 2008 cannot pre-register after this date. Instead, they either have to register in full and immediately in order to continue the manufacture, import and/or supply of the substance, or cease those activities (‘no data, no market’).
The REACH Enforcement Regulations 2008 provide that a breach of Article 5 (‘no data, no market’) is an offence, and so dutyholders in this situation must take the necessary steps to ensure they achieve compliance with Article 5. This will normally mean submitting a full registration for the substance(s) in question, though there may be other means by which compliance can be achieved.
Dutyholders who find themselves in this position are encouraged to contact the REACH Compliance team at CRDCompliance@hse.gov.uk providing appropriate details, including the nature of their business and the substances for which they have a registration duty. You will then be contacted to establish the best way to take things forward.
Can I pre-register ‘late’?
Yes, but only if you are a first-time manufacturer or importer of a phase-in substance. Pre-registration is now only an option for those who, since REACH has been in force, manufacture or import a phase-in substance in quantities of 1 tonne or more per year for the first time after 1 December 2008. For example, those that are new to the market, or those whose manufacture or import has never previously exceeded one tonne per year, can still pre-register.
This pre-registration will need to be submitted within six months of exceeding the one tonne per year threshold and at least twelve months before the relevant deadline for registration (e.g. for a one tonne per year substance, the latest you could pre-register would be 30 May 2017).
If you fail to meet the criteria for late pre-registration you will need to register in full straight away (and see question above).
What happens if I’ve pre-registered the wrong substance?
ECHA are not permitted to allow mistakes with substance identity in a pre-registration to be rectified, though they would encourage the use of the 'similar substances' tab in REACH IT to allow the pre-registrant to enter a more appropriate SIEF. This does not, however, change the original pre-registration, and so this is not a mechanism to allow pre-registrants to change the chemical identity of the substance(s) they have pre-registered.
Under Article 28 of REACH, pre-registrants must submit all the required information in order to benefit from the phase-in deadlines set out in Article 23. Part of the information required includes the EINECS number where available, and the name of the substance. If mistakes are made such as a misspelling of the substance name or an incorrect EINECS number, then strictly speaking the required information has not been submitted; this means that the dutyholder cannot rely on the phase-in deadlines.
Submitting incorrect information during pre-registration would not normally be an offence under the REACH Enforcement Regulations 2008. However, it could result in a contravention of Article 5 (‘no data, no market’) if the pre-registrant continues to manufacture, import or supply the substance without having submitted its registration in full.
In such cases, enforcing authorities will decide whether or not to pursue enforcement action. It is not possible to state generally whether enforcing authorities would take enforcement action in these situations. Such decisions would instead be made on a case-by-case basis, though clearly within the framework of the enforcing authority’s overall enforcement policy (see question 9 above).
How is a consistent and co-ordinated approach to enforcement going to be achieved across the EU?
The REACH Regulation creates a committee known as the Forum for the Exchange of Information on Enforcement (often referred to just as ‘the Forum’). The Forum is made up of representatives from every Member State and is given a number of specific tasks by REACH. These include, for example, requirements to spread good practice and highlight problems at Community level; to propose, co-ordinate and evaluate harmonised enforcement projects and joint inspections; and to identify enforcement strategies, as well as best practice in enforcement.
For more information about the Forum, its responsibilities and its work programme, please visit the EU enforcement liaison page.
In addition, REACH requires every Member State to report back to the European Commission the results of inspections, monitoring and penalties by 1 June 2010, and every five years after that.
How is a consistent and co-ordinated approach to enforcement going to be achieved in the UK?
Close co-operation and co-ordination between enforcing authorities will be crucial to the effective enforcement of REACH in the UK. The REACH Enforcement Regulations 2008 are accompanied by a Memorandum of Understanding (MoU) on REACH enforcement. The MoU contains provisions relating to joint working arrangements where enforcement responsibility overlaps, sharing information, the notification of matters of concern regarding dutyholders, and supporting each other with enforcement activities.
To further strengthen co-operation and coordination, and to ensure the effective operation of the MoU on enforcement, a UK Enforcement Liaison Group has been set up. This Group brings together representatives from all UK enforcers of REACH, in order to carry out the functions of the MoU, discuss emerging enforcement issues or grey areas, propose amendments to guidance, based on practical experience, and so on.
To find out more about the UK arrangements for co-operation and information sharing, please visit the UK enforcement liaison page.
Can you continue to use substances after 1 December 2008 even if they have not been registered or pre-registered?
The requirements of REACH article 5 (‘no data, no market’) prohibit the manufacture, import and supply of substances that are not registered, where this is required by Title II of REACH. There is no such prohibition on use. However, downstream users of substances that have not been registered or pre-registered should be aware that the supply of such substances may be prohibited when detected by an enforcing authority. Loss of supply has the potential to cause significant disruption to business activities.
Downstream users should also note that some substances will either be restricted or subject to authorisation according to REACH, in which case their use will be allowed only if it does not contravene the restriction or is subject to an appropriate authorisation.
How will REACH fit in with existing legislation governing the safe use of chemicals, e.g. COSHH?
REACH applies ‘without prejudice’ to existing Community legislation on health and safety and environmental protection. This means that other legislation such as COSHH is unaffected. Compliance with one set of legislation will not be treated as justification for failing to meet the requirements of other legislation.
What paperwork do I need for a REACH inspection?
Dutyholders will need to demonstrate compliance with REACH to those who inspect their premises, e.g. HSE, the Environment Agency, local authorities etc. The authorities are likely to ask for a number of documents in the course of a typical inspection, to assist them in checking whether the dutyholder is compliant or not. It is not possible to state what documents will be asked for because this will depend on the particular circumstances of the case. However, documents such as invoices, receipts, records of tonnages manufactured / imported / supplied, safety data sheets, certificates (or other results) of analysis (which meet relevant testing standards), confirmatory letters / emails from suppliers etc. are good examples of relevant documents.
Dutyholders should also be prepared to demonstrate whether (and how) appropriate communication has been taking place within their supply chain. Evidence that REACH compliance is considered as part of a wider management system would also be helpful, e.g. a purchasing policy that incorporates REACH conformity as a criterion.
Importers of substances that are covered by an only representative (OR) would normally be expected to provide evidence of the OR’s appointment by the non-EU manufacturer/supplier. This normally takes the form of a letter of appointment, which will need to state which substance(s) the OR is assuming responsibility for, and which EU-based importers are covered by the appointment (and who therefore become 'downstream users' under REACH). The importer would also be expected to have enquired about the validity of the OR's registration(s) or pre-registration(s).