EU Rallies REACH Enforcement Troop

In a series of articles on the Registration, Evaluation, and Analysis of Chemicals (REACH) published by myself and others for EBN and Velocity, there has been much information provided for understanding the basics of the legislation and the resources that can guide a company through the procedures for necessary compliance. (See: Bridging the REACH Gulf With Sitmae and The End of JGPSSI & JIG-101.)

The European Chemical Agency (ECHA) is the main body responsible for registrations and inquiries concerning particular substances used by the various applicant companies. If the only incentive was the betterment of the health and safety of human beings and the environment, the number of applicants for registration would be much fewer than it is today. Like any rule or regulation, those who are subject to the pertinent demands of the legislation are usually reluctant to comply if extra effort or cost is involved. However, because there are other incentives that impact a company's cost of doing business, the legislation will eventually serve its intended purpose and achieve the desired goals.

If a company does not take the required measures to register a substance of very high concern (SVHC), that company will not be permitted to sell the offending product into the EU member states. In addition to the banning of the product, if the company has undeclared SVHC-laden product that is subsequently discovered, then that importer or company may be penalized or sanctioned according to each member state's REACH enforcement practices.

Article 126 of REACH refers to the obligation for member states to impose "penalties." The sanctions or penalties are characterized by their punitive or repressive character. However, this repressive character does not prevent a sanction from having also a preventive dimension. The type of penalty varies among the countries under study. In general, the member states have systematically included fines in their penalty systems, as a continuation of their existing regulations. Other types of penalties include injunctions (including market withdrawal), prison sentences, and name-and-shame methods where non-compliance is made public.

The most recent changes to the REACH legislation concerning penalties stipulate the European Customs authorities would be involved in the next enforcement project. Customs will be asked to identify importers and all the imported chemicals. At the present time the non-EU producers and their designated "Only Representatives" and importers enjoy some autonomy from customs authorities, but with the upcoming changes, the interactions among these entities will also be subject to investigation. Customs is the most likely place to "catch" all the incoming articles and substances, but now with their extended authorities, they will be part of the enforcement coverage.

There are three main types of enforcement regime. Each member state has its own criteria for identifying both the nature of an offence and the subsequent penalty. In short, the three are: administrative, criminal, and a mixture of both. Roughly calculated, administrative-only actions comprise about 41 percent of the total, compared to 10 percent for criminal-only. The 49 percent remaining penalty category is a combination of both, not particularly weighted one way or the other. The EU Commission requires that the punishment fit the crime. As it's said in Article 126, "The penalties provided in Member State legislation are to be dissuasive, proportionate and effective."

With regards to administrative measures, the main type of sanction is economic. Fines are the only instrument foreseen at the administrative level in Bulgaria, Cyprus, Estonia, Hungary, Italy, Latvia, Liechtenstein, and Romania. Some countries, although having the possibility to apply fines, rarely use them since their systems are mostly based on coercive measures, including initial warnings and formal notices, and fines are imposed only as a last resort.

On the other hand, the Nordic countries consider the fine as a coercive instrument, rather than as a punitive tool. The fine is then calculated on a case-by-case basis, depending on varying criteria, such as the size of the company, the importance of the interests affected by the offence, or the severity of the infringement.

With regard to criminal sanctions, three main types of measures -- pecuniary, deprivation of rights, and prohibitions and orders -- can be identified. Fines and prison sentences are the main criminal sanctions in all countries where criminal law is applied. The fine can be extremely high, and will usually be higher than the administrative fine, in the countries where fines can be imposed both under criminal and administrative law. In almost all countries with criminal sanctions, the most serious breaches of the REACH regulation are punished with imprisonment.

Effective enforcement is ultimately the biggest deterrent to any crime. Crimes against the environment and the subsequent consequences for any and all violations may be exactly what Mother Earth needs to get her day in court.