Government Approves Changes to Chemicals Act to Implement REACH - International Law Office

Implementing Authorities
Administrative Offences, Fines and Penalties
Powers of Enforcement
Comment

On June 1 2007 the EU Regulation on the Registration, Evaluation and Authorization of Chemicals (REACH) (1907/2006) entered into force. In December 2007 the German government agreed on a draft bill to bring national law into line with REACH. The regulation must still be passed by the Bundesrat (the upper house of Parliament), which has requested further amendments, but these do not affect the material content of the relevant provisions in relation to REACH. Once passed, the regulation will become effective on June 1 2008 - that is, the date on which all new substances are subject to registration under REACH.

Implementing Authorities

The central player among the competent authorities will be the Federal Agency for Occupational Health, Safety and Medicine in Dortmund, which is the designated federal agency for chemicals. Its tasks include:

• commenting on draft decisions of the European Chemicals Agency (Article 9(8));
• evaluating documentation in connection with substance testing (Chapter VI);
• cooperating in relation to the harmonized classification and labelling of chemicals (Article 115(1));
• acting as the national helpdesk (under Article 124(2)); and
• collaborating with the Federal Environmental Agency, the Federal Institute for Risk Assessment and various departments of the Federal Agency for Occupational Health, Safety and Medicine which are responsible for specific aspects of the evaluation of chemicals, such as environmental, health and occupational safety.

Administrative Offences, Fines and Penalties

Non-compliance with REACH can be penalized by a fine of up to €100,000 or imprisonment for between two and five years (although the maximum sentence may be imposed only if life, health or valuable property was put at risk). The main difference from earlier drafts is that negligent non-compliance is generally considered an administrative rather than criminal offence.

Powers of Enforcement

The regulation recognizes the need to empower the competent authorities to fulfil their duties under REACH - for example, by giving them the right to enter third-party premises or exchange information with other authorities for monitoring purposes.

The Chemicals Act has been amended to allow the customs authorities and other competent bodies to forward information acquired in the course of their work to the authorities responsible for implemening REACH, which is not possible in all cases at present.

Comment

It remains to be seen whether the regulation will be sufficient to harmonize German law with REACH. The Bundesrat has already stated that further amendments to the act are necessary to avoid discrepancies in wording; therefore, more changes are likely to follow.

For further information on this topic please contact David Elshorst at Clifford Chance LLP by telephone (+49 69 71 99 01) or by fax (+49 69 71 99 4000) or by email (david.elshorst@cliffordchance.com).