Articles incorporated as components of a complex product must be notified to the
European Chemicals Agency when they contain a substance of very high concern in
a concentration above 0.1%
The REACH Regulation provides that, where a chemical substance ‘of very high concern’ for
health or the environment because, in particular, of its carcinogenic, mutagenic or toxic properties
is present in a concentration above 0.1% of the mass of an article, the producer or importer must,
in principle, notify the European Chemicals Agency (ECHA). Similarly, the supplier must inform the
recipient thereof and, on request, the consumer of the article. In 2011, a note sent by the Commission to the Member States and a guide published by ECHA specified how the regulation is to be applied as regards substances of very high concern included in articles. In essence, with regard to articles incorporated in goods, those documents provide that the duties to notify and provide information laid down in the regulation apply only if the substance of very high concern exceeds 0.1% in the entire article.
That interpretation was not shared by five Member States or Norway.
Not being convinced that the instructions in those documents ensure a high level of protection of
human health and the environment, the French authorities issued an opinion on the manner in
which they intended to apply the relevant provisions of the regulation. They are of the view that the
concept of ‘article’ covers all objects meeting the definition of an article within the meaning of the
The Fédération des entreprises du commerce et de la distribution and Fédération des magasins de
bricolage et de l’aménagement de la maison have brought proceedings before the Conseil d’État
(Council of State, France) against that opinion, arguing that it was not in accordance with the
regulation as interpreted by the Commission’s note and the ECHA Guidance document. In that
context, the Conseil d’État asks the Court of Justice whether, in the case of a product composed of
several articles, the concentration threshold for a substance of very high concern must be
established in relation to the whole product.
By its judgment delivered today, the Court recalls, firstly, that the regulation defines the concept of
‘article’ as ‘an object which during production is given a special shape, surface or design which
determines its function to a greater degree than does its chemical composition’. However, it does
not contain any provisions specifically governing the situation of a complex product containing several articles. Consequently, there is no need to draw a distinction between the situation of articles incorporated as a component of a complex product and that of articles present in an isolated manner.
In those circumstances, the Court rules that each of the articles incorporated as a component
of a complex product is covered by the relevant duties to notify and provide information
when they contain a substance of very high concern in a concentration above 0.1% of their
The Court finds that the producer’s duty to notify covers only those articles which the producer
itself has made or assembled. That duty is therefore not applicable to an article which, although
used by that producer as input, was made by a third party. None the less, that third party is also
subject to the duty to notify in respect of the article which it makes or assembles.
Similarly, the importer of a product the composition of which comprises one or more of the
objects coming within the definition of the term ‘article’ must also be considered to be the
importer of that article or those articles. In that regard, the Court points out that the fact that it
can be difficult for importers to obtain the required information from their suppliers established in
non-EU countries does not alter their duty to notify.
The Court finds that the duty to provide information with regard to the recipients and consumers of
the product is not restricted to the producers and importers but applies to all operators along the
supply chain when that person supplies an article to a third party. It is therefore for the person
supplying a product one or more constituent articles of which contain(s) a substance of very high
concern in a concentration above 0.1% to fulfil his duty to provide information and provide the
recipient and the consumer of the product, as a minimum, with the name of the substance in