What does REACH require as regards enforcement?
REACH requires 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 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.
The REACH Enforcement Regulations 2008
The enforcement regime for REACH has been implemented by the REACH Enforcement Regulations 2008. These Regulations apply to Northern Ireland and provide for the enforcement of REACH, by:
- allocating responsibility for REACH enforcement to a number of enforcing authorities;
- providing these enforcing authorities with the powers they need;
- requiring enforcing authorities to cooperate and share information with other bodies connected to REACH enforcement; and
- setting the offences and penalties for contraventions of REACH requirements.
The paragraphs below explore these areas in more detail.
Who enforces REACH in Northern Ireland?
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 Health and Safety Executive for Northern Ireland (HSENI);
- the Northern Ireland Environment Agency (NIEA) - daera-ni.gov.uk
- Local Government Association (LAs), as regards occupational health and safety and consumer protection (trading standards) issues.
The REACH Enforcement Regulations 2008 set out which enforcing authority is responsible for enforcing the listed REACH provisions, though broadly speaking:
- HSENI, in its capacity as the REACH CA, will enforce those duties in REACH concerning registration;
- HSENI in Northern Ireland will enforce supply related duties up to the point of retail sale, with local authority trading standards departments then responsible for consumer protection issues.
- A wide range of enforcing authorities will enforce use related duties, as per existing arrangements for enforcing health, safety and environmental legislation.
Though not given an enforcement duty by the REACH Enforcement Regulations 2008, the following authorities also have important roles to play:
- the UK Border Agency (UKBA) is responsible for delivering risk based anti-smuggling controls at UK points of entry to detect illegal imports of prohibited and restricted goods. UKBA may provide assistance to the named REACH enforcing authorities by detaining goods at import for a maximum of two working days, either when requested to do so or in the event that UKBA have reasonable grounds to suspect that goods may be being imported which are in breach of REACH.
- HM Revenue and Customs (HMRC) is responsible for delivering the customs clearance function for imports from non EU countries and for operating the import customs declaration system. HMRC may disclose information obtained or held in the exercise of its functions relating to imports, to facilitate the exercise of a duty of an enforcing authority under the Enforcement Regulations.
- the Home Office & the Department of Health, Social Services and Public Safety: A key theme of REACH is the need to minimise the use of animals in testing and where possible to use suitable non-animal methods. In the UK, the Animals (Scientific Procedures) Act 1986 regulates any experimental or other scientific procedures that may have the effect of causing animals pain, suffering, distress or lasting harm. This Act is administered in Great Britain by the Home Office and in Northern Ireland by the Department of Health, Social Services and Public Safety. Licences will, if necessary, be amended to ensure REACH compliance is taken into account when projects are agreed for the conduct of animal tests, and appropriate conditions added to licences so that meaningful and informative records of these tests are maintained and made available for inspection.
What are the arrangements for co-operation and co-ordination?
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.
Co-operation and co-ordination across the European Union
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.
What powers do enforcing authorities have?
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.
What are the penalties for non-compliance?
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:
- up to £5,000 fine and/or up to three months imprisonment following summary conviction; and
- an unlimited fine and/or up to two years imprisonment following conviction on indictment.
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.
How does REACH interact with other legislation about chemicals?
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.
Arrangements for liaison between enforcing authorities
What do the REACH Enforcement Regulations 2008 say?
Close co-operation and co-ordination between enforcing authorities is crucial to the effective enforcement of REACH. The REACH Enforcement Regulations 2008 require enforcing authorities to co-operate and share information with each other to assist 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.
Co-operation and information sharing across the European Union
The Forum for Exchange of Information on Enforcement
REACH recognises the need for high levels of co-operation 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 (“the Forum”), which is the principle mechanism for ensuring adequate co-operation, co-ordination, communication and information exchange across the European Union.
The Forum’s aim is to contribute to more effective and harmonised enforcement in Member States. REACH states that the Forum shall co-ordinate the “network of Member State authorities responsible for enforcement” of REACH, and allocates to the Forum the following specific tasks:
- spreading good practice and highlighting problems at Community level;
- proposing, co-ordinating and evaluating harmonised enforcement projects and joint inspections;
- co-ordinating exchange of inspectors;
- identifying enforcement strategies, as well as best practice in enforcement;
- developing working methods and tools of use to local inspectors;
- developing an electronic information exchange procedure;
- liaising with industry and other stakeholders, including relevant international organisations; and
- examining proposed chemical restrictions to advise on enforceability.
The Forum’s composition and activities
The Forum is composed of representatives from all EU Member States and also the EEA-EFTA States (Iceland, Liechtenstein and Norway). Meetings occur typically 2-3 times a year at ECHA’s premises in Helsinki, Finland. Stakeholders may be invited to observe meetings as appropriate, at the request of the Forum members.
You will find more information about the Forum and its work on:
How to comply with REACH chemical regulations from 1 January 2021 - GOV.UK - UK REACH, the UK’s independent chemicals regulatory framework, starts on 1 January 2021. Anyone importing, manufacturing or distributing chemicals in GB and/or Northern Ireland needs to understand how the UK REACH and EU REACH rules might affect their business after 1 January 2021.
- European Chemicals Agency (ECHA) website
- Frequently Asked Questions about REACH enforcement
- REACH Glossary
- REACH Enforcement Regulations 2008 - legislation.gov.uk
- European Communities Act 1972 - legislation.gov.uk