SVHC: Court of Justice of the European Union Contradicts the ECHA

In a clarification, the Court of Justice of the European Union has clarified that every manufacturer and importer of substances of very high concern (SVHC) must register the substances with the ECHA if the concentration of an SVHC in an article exceeds 0.1% weight by weight. The applicable principle is “once an article, always an article”. In other words, each individual component of a product is considered an article. For example, both a transistor in and the housing for a laptop would be considered an article, not simply the laptop itself. This approach results in stricter regulations.

The clarification resulted from the differing opinions of the ECHA and various countries about what is to be understood as an article or product and the conditions that require a notification to the ECHA. In the guidelines it issued in 2011, the ECHA stated that a notification was required only when the concentration of SVHC in an article exceeded 0.1% weight by weight. But it defined only the end product as an article, not the individual components.

Authorities in France, Belgium, Denmark, Sweden, Germany, Austria, and Norway did not consider the definition sufficiently broad. They saw too little protection for human health and the environment and issued their own guidelines in 2013. Their guidelines required notification when the concentration of SVHC in individual components of an end product exceeded 0.1% weight by weight. For example, the guidelines state that if the concentration of a SVHC in a transistor exceeded 0.1% weight by weight, the manufacturer must notify the ECHA. If the reference value had been the total weight of a laptop, the original ECHA guidelines would not have required notification.

The decision of the Court of Justice of the European Union thus legitimates that the stricter guidelines of the countries noted.

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