Will REACH Registration Lose Validity after Britain Withdrawing from EU?

In June 2016, Britain voted to leave the European Union in a referendum. Although it is still quite difficult to judge how it will affect the world, there is no doubt that profound changes will occur in the political, economic and diplomatic structures of the European Union. As for enterprises, they pay more attention to whether their trade in Britain will be affected. Currently, it is apparent that non EU enterprises that have entrusted a British only representative with their REACH registration are the first to be affected. Those enterprises are extremely anxious as they have paid high data fee and administrative fee for the REACH registration. If this issue cannot be settled, they may suffer heavy losses.

Relevant industries have made multiple guesses on whether REACH is still available in Britain after Britain withdrawing from EU. Non EU enterprises that have entrusted a British enterprise with the REACH registration hope that REACH will continue to be effective in Britain. Other enterprises, who intended to establish trade relations with Britain, are still staying on the sidelines as they are not sure whether REACH will be available after Britain leaves the EU.

On 22 September 2017, ECHA updated the Q & A page in their official website. Information concerning how the REACH, CLP, BPR and PIC are affected after Britain withdraws from the UK is newly added into the Q & A page.

Following are the newly added questions and answers:

1. With a view to the UK withdrawal from the EU, does my UK-based company still need to submit a registration dossier for a phase-in substance to ECHA by the 2018 REACH registration deadline? Would we need to do the same for a non phase-in substance?

Until the date of the withdrawal of the UK on 30 March 2019, the UK remains an EU Member State in which the provisions of the REACH Regulation fully apply. You will therefore have to register your substance for the 2018 REACH registration deadline. Moreover, your registration obligations will continue until the date of the UK withdrawal. Even beyond that date, it will be advisable for you to follow the legislative development in the UK with regard to domestic registration obligations.

2. My UK-based company has successfully registered a substance, and ECHA has provided my company with a registration number. How will the UK withdrawal from the EU affect my registration?

Article 3(7) of the REACH Regulation establishes that a registrant must be a manufacturer or importer of a substance or a producer or importer of an article. Article 3 (4), (9) and (11) stipulates that registrants must be established in the EU. After 30 March 2019, the UK will no longer be a Member State of the EU. Hence, any UK-based registrant can no longer be a registrant. For the purpose of the EU’s REACH Regulation, any registration by such a registrant will therefore be regarded as non-existent, as your company will, after the UK withdrawal, be based in a “third country” outside the EU/EEA. Consequently, your EU-EEA customers will need to register the respective substance themselves. Alternatively, in order to continue supplying your EU-27(or EEA)-based customers on the basis of your own registration, as a manufacturer you will need to either relocate to the EU-27/EEA or to appoint an Only Representative within the EU-27/EEA. As a UK-based importer from a non-EU/EEA country, you will have the option to legally establish yourself as an importer based within the EU-27.

3. My UK-based company is currently acting as an Only Representative of a non-EU manufacturer. Once the United Kingdom leaves the European Union, how will that affect our status of Only Representative?

The REACH Regulation is very clear in this regard. According to its Article 8, Only Representatives shall be legally established within the EU. After the UK withdrawal, this will mean the territory of the EU-27/EEA. The manufacturer having appointed you as Only Representative will need to involve an Only Representative based in one of the EU-27 Member States or the three EEA Member States, and you will need to change the Only Representative in REACH-IT.

4. My UK-based company has paid the requisite fee to ECHA for the registration of our substance whilst the United Kingdom is currently still a Member State of the European Union. Will ECHA charge the payment of a fee for a legal entity change in the case that our company transfers our REACH registrations or the Only Representative status to an Only Representative based in the EU-27?

Under the provisions of the REACH Fee Regulation, our Agency will indeed charge the foreseen fee. The circumstance of the UK withdrawal from the EU does not provide a legal basis for waiving the charge of fees.

5. My UK-based company has registered a substance with ECHA. Will we still need to update our dossier after the UK withdrawal?

No. As the EU legislation will no longer apply to the UK after the withdrawal date, you will no longer be subject to the obligation of updating your dossier without undue delay.

6. My UK-based company is placing a substance of very high concern (SVHC) which is mentioned in Annex XIV of the REACH Regulation on the EU/EEA market. With a view to the UK withdrawal from the EU, will we need to apply for a REACH Authorisation for its uses?

This depends on what date comes earlier – the respective sunset date or the date of the withdrawal of the United Kingdom from the European Union. If the date of withdrawal precedes the respective sunset date, you will not need to apply for a REACH Authorisation as the REACH Regulation will no longer be binding in the United Kingdom. After the UK withdrawal, you will no longer be bound by the REACH prohibition of placing substances on Annex XIV on the market, and as a non-EU company, you will yourself not be entitled to apply for a REACH Authorisation. Instead, the EU-27-based importer of the substance and/or the EU-27-based downstream user of the substance may need to apply for REACH Authorisation for the use of the substance in the EU.

7. My UK-based company holds a valid REACH Authorisation for certain uses of a chemical substance, granted by decision of the European Commission. After the UK withdrawal, will we still need to adhere to the conditions of use determined by this decision?

As from the date of the UK withdrawal from the EU, the REACH Authorisation granted to your company will cease to have effect under EU law. You will no longer need to comply with the conditions established by the Commission’s Authorisation decision.

8. My UK-based company is a downstream user within the UK of a substance covered by a REACH Authorisation in accordance with Article 56 (2) of the REACH Regulation. Will we need to continue to comply with the obligations imposed by the Authorisation decision also after the UK withdrawal?

No. As the EU legislation will no longer apply to the UK after the withdrawal date, you will no longer be subject to this obligation.

9. My UK-based company is a downstream user of a chemical substance registered under REACH. After the UK withdrawal, will we need to continue informing our UK supplier of its uses?

No. As the EU legislation will no longer apply to the UK after the withdrawal date, you will no longer be subject to this obligation.

10. My UK-based company is a downstream user of a chemical substance registered under REACH. After the UK withdrawal, will we need to continue informing our EU-27 supplier of its uses?

No. As the EU legislation will no longer apply to the UK after the withdrawal date, you will no longer be subject to this obligation.

11. My UK-based company is a downstream user of a chemical substance registered under REACH. After the UK withdrawal, will we need to continue notifying ECHA of its uses?

No. As the EU legislation will no longer apply to the UK after the withdrawal date, you will no longer be subject to this obligation.

12. My EU-27-based company is purchasing a chemical substance from a UK-based business partner which has registered the substance under REACH. Can we still rely on the substance having been legally and validly registered within the EU in accordance with the REACH Regulation after the UK leaves the EU?

No. Your business partner will need to appoint an Only Representative established within the EU-27 or relocate to the EU-27 for the substance to remain legally registered with ECHA for the EU-27/EEA. In the absence of such an appointment or relocation by your UK-based supplier, you will need to register the substance yourself as an importer.

13. My EU-27-based company is a registrant in a joint submission for which a UK-based company is the Lead Registrant as well as owner of the data to which we have obtained a Letter of Access. What impact will the UK withdrawal from the EU have on our registration?

After the date of the UK withdrawal, the registration by the UK-based company will be considered non-existent. To ensure that you can benefit from a functioning joint submission with a lead registrant, you should ensure that the lead registrant moves to the EU or does a legal entity change to become an EU-27-based Only Representative, or appoint a new lead registrant and transfer the lead registrant role before the date of the UK withdrawal. Agreements among registrants should include a provision regulating the case that the appointed Lead Registrant can no longer exercise their function and foreseeing that the shared information is transferred to a new lead registration, as well as arrangements to ensure data and cost sharing can be continued in the future.

14. My EU-27-based company is using a substance under the conditions of a REACH Authorisation that the European Commission has granted to our UK-based supplier. Will we still be covered for the downstream use of the substance?

No. As the REACH Regulation will no longer apply to the UK upon the UK withdrawal from the EU, the respective REACH Authorisation will lose its legal effect with the date of the UK withdrawal. You will need to assure yourself that you or one of your upstream suppliers based in the EU has obtained a REACH Authorisation for the respective use of the substance, taking the place of your UK-based business partner.

15. Based on the Community Rolling Action Plan (CoRAP) 2012-2014 and its updates (lastly the update that ECHA published on 21 March 2017, covering the years 2017, 2018 and 2019), the review of certain substances under the REACH evaluation process is assigned to UK public authorities. What will happen to the respective substance evaluations that will still be pending by the date of the UK withdrawal?

Our Agency, in collaboration with the European Commission and Member State competent authorities, will review all pending substance evaluations in due time for appointing another Member State authority to take over the respective evaluation. The UK withdrawal is also being taken into consideration in the draft CoRAP update for the years 2018-2020 as well as subsequent updates.

16. What does my UK-based company need to keep in mind when we appoint an Only Representative (OR) in an EU-27 Member State?

You should only appoint an OR who has a sufficient background in the practical handling of substances and of the information related to them, as required by Article 8(2) of the REACH Regulation. As your representative, the OR will bear all responsibilities of importers under the Registration Title and other titles of the REACH Regulation. Among them, the OR shall keep available and up-to-date information on the quantities imported and customers sold to, as well as information on the supply of the latest update of the SDS. Please also remember to inform the importers within the same supply chain of the OR appointment. ECHA’s webpages provide more detailed information on the role of Only Representatives

17. Can my UK-based company set up a company on paper only in an EU-27 Member State and transfer its registrations there?

No. Every registrant company is responsible for its registrations and the substances that are covered by these registrations. Therefore, responsible staff and the relevant documentation must be available for inspection at the premises of every registrant. Only Representatives must live up to the requirements in Article 8(2) REACH. A mere address or letter box is not sufficient and may lead to legal consequences being taken by enforcement authorities or ECHA. The company that you set up must comply with all local regulations and have legal personality at its place of establishment. You can undertake the legal entity change in REACH-IT. We also recommend that you consult ECHA’s Practical Guide No. 8

CIRS warmly reminds that if your enterprise have entrusted an UK-based enterprise to serve as your only representative for the REACH registration and the registration have not been completed, it is suggested that you’d better alter your only representatives as soon as possible.

If you have already completed your registration as a British importer, you may consider transferring your registration number to other companies by legal entity change.

Besides, CIRS also warmly reminds that relevant enterprises should continue to pay attention to the chemical regulations in Britain in case the trade is obstructed.

If you have any other questions, please contact us at service@cirs-reach.com

Further Information

ECHA Q & A