Many businesses will have considered the implications of a “no deal” Brexit scenario on the supply of regulated substances between EU-27 and the UK. In the event that the UK were to withdraw from EU membership without an agreement on 29 March 2019 or at any point thereafter, significant changes arise under the REACH; Classification, Labelling and Packaging (CLP); Prior Informed Consent (PIC); and Biocidal Products (BPR) regulations. Information on the changes is available at www.echa.europa.eu; www.hse.gov.uk and www.gov.uk. Crucially, to keep substances that are registered under REACH legally on the EU-27/EEA market post a hard Brexit, UK-based manufacturers and formulators can either transfer their business to an entity in, or appoint an Only Representative in, one of the EU-27/EEA countries or the EU-27/EEA importer will have to submit registrations.
The European Chemicals Agency (ECHA) has announced a ‘Brexit window’ in REACH-IT from 12 to 29 March, 24:00 hours CET (11 p.m. UK time) to enable UK-based businesses to make these changes. If an EU-27 Only Representative is not appointed and no transfer of registration takes place, the EU-27/EEA importers will have to submit their own registrations.
Step-by-step instructions for using the ‘Brexit window’ are available on ECHA’s website. The pages also include a link to the European Chemical Industry Council’s (Cefic) recommended standard wording for the suspensive conditional clause to be used in contractual arrangements when appointing Only Representatives which should be put in place prior to Brexit date but only take effect upon Brexit. This change will need to be notified in REACH-IT immediately ahead of the UK withdrawal by transferring the registrations to the new Only Representative.
If a downstream user in one of the EU-27/EEA countries relies on REACH authorisations granted to a UK-based company, they need to make sure that there is another EU-27/EEA supplier with a valid authorisation for their use.
Under CLP the importer in the EU-27 will need to submit notifications to the C&L Inventory.
Under the BPR, substance or product suppliers of biocides have to either be located in the EU or have an appointed EU-based representative to be listed in the Article 95 list of substances and suppliers. Non-EU companies are included together with their appointed EU representatives. UK-based suppliers will need to appoint an EU-27 based representative ahead of the UK’s withdrawal to avoid being removed from the Article 95 list. Non-EU companies listed under Article 95 of the BPR and with an EU representative located in the UK will also need to appoint a new representative within the EU-27.
EU-27 companies will also need to notify their exports of hazardous substances regulated under the PIC Regulation when exporting to the UK. The export notification needs to be submitted 35 days before the export. ECHA has published a manual export notification form that will allow exporters based in the EU-27 to notify their planned exports to the UK before the date of the UK’s withdrawal from the EU. These export notifications will take effect if the UK is, as of the withdrawal date, a third country without a withdrawal agreement entering into force. This is a temporary procedure that will allow EU-27 companies that are exporting chemicals subject to the PIC Regulation to the UK right after withdrawal to comply with their obligations to notify their exports 35 days before the expected date of import.
Imports into the UK
Companies based in the EU-27/EEA and in the UK will need to prepare for placing substances on the UK market after Brexit, which will be governed by UK law and a new regime mirroring the EU chemicals regime. As the UK will not have access to data submitted to ECHA the onus will be on businesses to obtain access to previously submitted information or prepare duplicate information in a staged way. From a practical perspective this could cause significant difficulties and if not already investigated, in the remaining period prior to any withdrawal any ability to gain access to existing data should be considered and pursued as far as possible. Detailed guidance on new obligations is available on the HSE website.