REACH (Titles XIII and XIV) requires each Member State to appoint a Competent Authority (CA) and maintain an appropriate control system with respect to enforcement. Member States are required to have an enforcement regime in place by 1 December 2008, which provides for ‘effective, proportionate and dissuasive’ penalties for non-compliance. Results of inspections, monitoring and penalties are to be reported to the European Commission by 1 June 2010, and after that every five years.
REACH also recognises the need for high levels of co-operation, co-ordination and exchange of information between the Member States, ECHA and the European Commission regarding enforcement. It establishes a “Forum for Exchange of Information on Enforcement”, which will coordinate harmonised enforcement projects and joint inspections, as well as develop working methods and tools for inspectors, identify enforcement strategies and develop an electronic information exchange procedure.
In the UK, Defra has the policy lead on REACH and has developed the enforcement arrangements, acting with the Department for Business, Enterprise and Regulatory Reform (BERR) and the Devolved Administrations for Scotland, Wales and Northern Ireland.
In developing the REACH enforcement regime, Defra led two public consultations on REACH enforcement. The first was during Spring 2007, and this sought to establish the principles upon which an enforcement regime would be developed. This considered, amongst other things, whether enforcement of REACH should be carried out by a new regulator, but concluded that enforcement should be undertaken by existing enforcing authorities, using the powers generally provided to those authorities, alongside their current regulatory activities. The second consultation was undertaken in Summer 2008, this time focussed on the details of the draft enforcement legislation, as well as the administrative arrangements for the proposed enforcement regime. You can find more information on both consultations on Defra’s website.
The enforcement regime for REACH has been implemented by the REACH Enforcement Regulations 2008. These Regulations apply to the UK and provide for the enforcement of REACH. They allocate responsibility for REACH enforcement to a number of enforcing authorities and provide them with the powers they need. The Regulations also require enforcing authorities to cooperate and share information with other bodies connected to REACH enforcement, and they set down the offences and penalties for contraventions of REACH requirements.
The paragraphs below explore these areas in more detail.
The authorities given enforcement responsibility by the REACH Enforcement Regulations 2008 are those with existing remits to protect human health, consumer safety, and the environment:
Regulation 3 and Schedule 1 of the REACH Enforcement Regulations 2008 sets out which enforcing authority is responsible for enforcing the listed REACH provisions, though broadly speaking:
Though not identified in the REACH Enforcement Regulations 2008 as named REACH enforcers, the following authorities also have important roles to play:
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 require enforcing authorities to co-operate and share information with each other to facilitate compliance with, and the effective enforcement of, REACH. The Regulations also give enforcing authorities power to agree arrangements with each other to facilitate the carrying out of an enforcement duty by another authority. This means that there is flexibility for the most appropriate enforcing authority to carry out enforcement in any particular case.
A Memorandum of Understanding (MoU) on REACH enforcement is being developed, and a draft version of the MoU formed part of Defra’s Summer 2008 consultation (and is available on Defra’s website). The MoU details the administrative procedures and working arrangements between enforcing authorities, and contains provisions as to joint working arrangements where enforcement responsibility overlaps, the sharing of information between enforcers, notification of matters of concern regarding dutyholders, and so on.
To further strengthen co-operation and ordination, the MoU establishes a UK REACH Enforcement Liaison Group is established. This will bring together representatives from all UK enforcers of REACH at periodic intervals, and its functions include:
The Forum for Exchange of Information on Enforcement (‘the Forum’) is the principle mechanism for ensuring co-operation and co-ordination across the European Union. The overarching aim of the Forum is to contribute to a more effective and stronger enforcement in Member States. Article 76(1) of REACH indicates that the Forum shall coordinate the “network of Member State authorities responsible for enforcement” of REACH, and article 77(4) allocates to the Forum the following specific tasks:
The REACH Enforcement Regulations 2008 give each enforcing authority the suite of powers they need to enable them to carry out their responsibilities. While the powers of each enforcing authority are all described in Schedules to the Regulations, in each case the powers merely reflect those already used in an enforcing authority’s existing enforcement activities.
The REACH Enforcement Regulations 2008 provide that it is an offence for a person to contravene a ‘listed REACH provision’ (this refers to the REACH requirements listed in the table in Schedule 1 of the Regulations) or to cause or permit another person to do so.
The Enforcement Regulations allow for a breach of a listed REACH provision to be tried summarily (e.g. in Magistrates Courts) or on indictment (e.g. in Crown Courts), and provide that the same potential maximum penalty will apply for each provision, namely up to the maxima permitted under the European Communities Act 1972. These are currently:
The Enforcement Regulations also provide for a number of supplementary criminal offences. These include obstruction of inspectors, providing false statements, failing to comply with enforcement notices, and so on. These supplementary offences are also the subject of criminal penalties which are consistent with those above.
Businesses already importing or manufacturing a registerable substance before 1 December 2008 cannot pre-register after 1 December 2008, and will instead 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’).
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 provide for any kind of ‘due diligence’ defence. However, enforcing authorities will usually take into account the efforts made by companies to comply when deciding what kind of enforcement action to take, and should this involve bringing legal proceedings, Courts will usually consider mitigating circumstances surrounding a breach of law.
Regulatory authorities in the UK have to act according to certain guidelines, and 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, such as issuing enforcement notices to change behaviour, as well as approaches to help companies with legal duties understand what these are and how they can be met.
You can contact the REACH Compliance Team: