REACH and CLP
Regarding the REACH regulation, the UK’s withdrawal from the EU will have implications for Irish companies who source their chemicals from UK suppliers. Any Irish company currently purchasing their chemicals in the UK should now review and consider the impact that the EU withdrawal will have on their future business and duties under REACH. In addition, any company purchasing from an IE distributor, should ask their supplier where they source their chemicals, as over 36% of companies we asked in 2017 indicated they got their chemicals from a UK supplier.
REACH requires (with some exemptions) that any substance manufactured in, or imported into, the EU at greater than 1 tonne per annum be registered. Registrations that are currently in place from UK companies will no longer be valid once the UK withdraws from the EU (as only EU legal entities can register under REACH).
Changes in roles regarding registration
At present, if an Irish company sources their substances from a UK supplier, then their role under REACH is as a downstream user and as such they have no registration obligations. However, after the UK withdraws from the EU, they will be considered a third country and so any substances imported into Ireland from the UK will be deemed as being imported from outside the EU. Thus, any Irish company who continues to source their substances from a UK supplier after the UK withdrawal will lose their downstream status and will have a role as an EU importer and thus will have registration obligations under REACH. Any Irish company potentially finding themselves in such a situation should speak to their UK supplier and determine his plans post withdrawal - will he appoint an Only Representative in one of the EU-27 Member States (if he is a manufacturer) for example. Alternatively, as registration can be a resource intensive and costly process, if the Irish company wishes to avoid future registration obligations, they should now consider sourcing those chemicals from another supplier based in one of the EU-27/EEA countries.
Joint submissions with a UK based lead registrant
Irish registrants who are in a joint submission for which a UK based company is the lead registrant and owner of data for which the Irish company has obtained a letter of access allowing them to refer to the data need to be aware that the UK company’s registration will be non-existent following the UK withdrawal. In such a situation, it should be ensured that the lead registrant moves to the EU-27/EEA or that a legal entity change is completed so that the current lead registrant becomes an EU-27/EEA based only representative. Alternatively, a new lead registrant can be appointed and the lead registrant role transferred before the date of the UK withdrawal.
If an Irish company is considered as a downstream user under REACH due to the appointment by his non-EU supplier of an only representative (OR), and that OR is based in the UK, then the Irish company needs to be aware that once the UK leaves the EU, the UK based company can no longer act as OR. In such a case, the OR would need to move its business to an EU-27/EEA country, or a different OR in EU-27/EEA would need to be appointed by the non-EU manufacturer.
Impact on authorisations
If an Irish company relies on a REACH authorisation granted to a UK supplier (or a pending application for authorisation), then they should be aware that their use will no longer be covered after the UK leaves the EU. REACH authorisations will lose their legal effect as of the date of the UK withdrawal. This means that the Irish company will need to rely on a supplier with a valid authorisation from amongst the EU-27/EEA. If this is not possible, and the Irish company wishes to continue using the substance after the date of the UK withdrawal, then they will need to apply for an authorisation themselves. In any event, it is recommended that such companies speak to their suppliers now about their supplier’s intentions post UK withdrawal, as the UK company may avail of the possibility to appoint an OR in EU-27/EEA and transfer the authorisation to that OR post UK withdrawal.
Further information on REACH and the effect of the UK’s withdrawal is available on ECHA’s website at https://www.echa.europa.eu/support/qas-support/browse/-/qa/70Qx/view/topic/theukswithdrawalfromtheeu.
Classification, Labelling and Packaging (CLP)
With respect to the CLP Regulation (EC) No 1272/2008 on the classification, labelling and packaging of substances and mixtures, any Irish company currently buying or selling chemicals to or from the UK needs to plan ahead and be prepared for the UK’s withdrawal from the EU.
For a company buying chemicals directly from the UK, their role under CLP will change from that of a downstream user or a distributer to that of an importer following the UK’s withdrawal from the EU. Following withdrawal, the UK supplier will be seen as a non-EU manufacturer, with no role under CLP. The Irish company, who will then become the EU importer, will be responsible for ensuring that all hazardous chemicals being placed on the Irish market are classified, labelled and packaged, and for certain hazardous mixtures, notified to the National Poisons Information Centre, in accordance with the CLP Regulation. There may also be duties with respect to notification to the classification and labelling inventory at ECHA.
Irish companies supplying chemicals into the UK should note that the chemicals will be subject to UK law after withdrawal. In principle, this means that they will no longer need to comply with the CLP Regulation. However, the label elements that are based on the United Nations’ Global Harmonised System (GHS) will remain obligatory, as the UK will still implement the GHS. Thus, for example, the pictograms will be valid within the UK.
Further information on the CLP regulation and the effect of the UK withdrawal is available on ECHA’s website at https://www.echa.europa.eu/support/qas-support/browse/-/qa/70Qx/view/topic/theukswithdrawalfromtheeu.