The obligation to submit information on substances of very high concern (so-called SVHCs) is laid down in Article 9 (1) (i) of the Waste Framework Directive 2008/98/EC as amended by Directive (EU) 2018/851 (available at Directive (EU) 2018/851). Accordingly, a supplier of an article within the meaning of Article 3 No. 33 of Regulation (EC) No. 1907/2006 (REACH) has to submit certain information within the scope of Article 33 (1) REACH to a central database of the European Chemicals Agency (ECHA) as of 05.01.2021. Until now, it is still highly controversial whether the information requirements demanded by ECHA’s prototype of the so-called SCIP database (= Substances of Concern In articles as such or in complex objects (Products)) are legitimate and within the scope of the empowerment under the Directive (details of the information requirements and the database itself can be found at: ECHA – SCIP Database, ECHA – SCIP Prototype and ECHA – SCIP- Database Notifications – How to prepare and submit a SCIP notification dossier) . Nevertheless, the German legislator has now submitted a concrete draft for the transposition of the Directive into German law (available at: BT-Drs. 19/19373).
According to this, the implementation of the information submission obligation will be included into a new Section 62a of the German Act to promote recycling management and ensure environmentally sound waste management (Kreislaufwirtschaftsgesetz – KrWG). The proposal of the German Bundesrat to implement this obligation under the German Chemicals Act (ChemG) has been clearly rejected.
The new Section 62a Para. 1 of KrWG merely lays down the general obligation to submit information to the SCIP database, without specifying details of the scope and content of the submission. According to the draft of Section 62a Para. 2 KrWG, detailed provisions in this regard are reserved for a statutory ordinance yet to be issued. The content of the ordinance will take into account the guidelines for submission to the SCIP database developed at Union level.
In the explanatory memorandum to the draft legislation, the Federal Government clarified that a deviation in Germany from the information requirements laid down at Union level for submissions to the SCIP database is out of the question, since a divergent implementation of the submission obligation in different Member States would undermine the intention of the Union legislator.
Although the question of the scope of the information requirements is still being intensively discussed at Union level, the Federal Government already indicates in the draft legislation that it assumes, in line with ECHA, that the submission of information which goes beyond Article 33 (1) REACH, in particular on the products concerned, is inherent in the submission obligation. However, it is already becoming apparent that the national transposition will provide ground for judicial review of the scope of the information obligations. Only a decision by the European Court of Justice within the framework of a corresponding preliminary ruling procedure will therefore probably bring final clarity.
In conclusion, it should be noted on the one hand that the current draft legislation does not provide for sanctions for violations of the submission obligation, but on the other hand it is highly probable that sanction provisions will be included either in the statutroy ordinance yet to be issued pursuant to Section 62a Para. 2 of KrWG or subsequently in the KrWG itself.
Affected companies should use the remaining time to either systematically prepare the necessary information for submission to the SCIP database, if it is already available, or even to obtain it from their suppliers in order to be able to comply with the new legal obligations as of 05.01.2021. It is not recommended to wait until the consultations at Union level on the detailed scope of the submission obligations are completed. It is very likely that the submission obligation will actually exist from 05.01.2021 and that the information requirements (initially, possibly until a court decision at Union level) will probably not deviate significantly from the current status of the guidelines published by ECHA.
Do you have any questions about this news or would you like to discuss the news with the author? You are welcome to contact: Michael Öttinger
