Titles XIII and XIV of REACH require each Member State to appoint a Competent Authority (CA) and maintain an appropriate control system for enforcement. Member States were required to have an enforcement regime in place by 1 December 2008, which provides '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 then at five year intervals.
REACH also recognises the need for high levels of co-operation, co-ordination and exchange of information between the Member States, the European Chemicals Agency (ECHA) and the European Commission regarding enforcement. It sets up a "Forum for Exchange of Information on Enforcement", which will coordinate harmonised enforcement projects and joint inspections. It will also 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 developed the enforcement arrangements, acting with the Department for Business, Innovation and Skills (BIS) 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 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 given to those authorities, alongside their other regulatory activities. The second consultation, during Summer 2008, focused 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, by:
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:
The REACH Enforcement Regulations 2008 set out which enforcing authority is responsible for enforcing the listed REACH provisions, though broadly speaking:
|Environmental protection||Health and safety|
|England & Wales|
Though not given an enforcement duty by the REACH Enforcement Regulations 2008, the following authorities also have important roles to play:
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 allow the carrying out of an enforcement duty by another authority. This means that there is flexibility for the most suitable enforcing authority to carry out enforcement in any particular case.
You can find out more about the arrangements put in place in the UK for cooperation and information sharing on the UK enforcement liaison page.
You can also read the strategy and guidance for REACH enforcement in the UK . This contains guidance for enforcing authorities on REACH enforcement, and sets the strategy for REACH enforcement in the UK.
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.
You can find out more about the Forum, its responsibilities and its work programme on the EU enforcement liaison page.
The REACH Enforcement Regulations 2008 give each enforcing authority the powers they need to carry out their responsibilities. These powers are not only for the purposes of inspection and investigation (such as powers of entry, powers to seize evidence etc) but also for formal enforcement of the legislation (for example, powers to serve various kinds of enforcement notice, or to prosecute offenders etc).
While the powers of each enforcing authority are all described in Schedules to the Regulations, they generally reflect those already used for the authority's other enforcement activities.
Each enforcing authority has its own enforcement policy which will set out the general principles and approach that its staff are expected to follow when making enforcement decisions. You can find out more about HSE's enforcement policy and approach by visiting the enforcement section of the HSE website.
The REACH Enforcement Regulations 2008 provide that it is an offence for a person to contravene a 'listed REACH provision' or to cause or permit another person to do so.
The Enforcement Regulations allow for a person in breach of a listed REACH provision to be tried summarily (e.g. in Magistrates Courts) or on indictment (e.g. in Crown Courts). The same potential maximum penalty applies for each provision, namely up to the maxima permitted under the European Communities Act 1972. These are:
The Enforcement Regulations also provide for a number of other criminal offences. These include obstruction of inspectors, providing false statements, failing to comply with enforcement notices, and so on. These additional offences are also the subject of penalties, which are the same as those above.
REACH imposes a variety of duties related to the manufacture, importation, supply and use of substances. At the same time, REACH provides that it applies 'without prejudice' to existing Community workplace and environmental protection legislation (other than that it repeals or amends). REACH will therefore operate alongside other regimes. It follows that compliance with one regime will not excuse a failure to comply with another.
You can contact the REACH Compliance Team: