Clarification of the Deadline for Notifications to the Classification and Labelling Inventory

Date: Jul 29, 2009

The European Commission has recently clarified the deadline by which most companies would have to notify for the Classification and Labelling (C&L) Inventory under the new Classification, Labelling and Packaging (CLP) Regulation (Regulation (EC) No 1272/2008).

Obligation to notify information to C&L inventory

Article 40 of the CLP establishes an obligation for any manufacturer or importer, or group of manufacturers or importers, who place a covered substance on the market of the European Union (EU) to notify for the C&L Inventory.

For details regarding the substances covered by the notification requirement and the information required in the Notification, please refer to the article published on the Keller and Heckman LLP website on 18 March 2009[1].

The notification deadline

Originally, the deadline to notify information to the European Chemicals Agency (ECHA) for inclusion in the C&L inventory was provided by Article 116 of REACH which provided that:

"The obligations set out in Article 113 [to notify information to the Agency for inclusion into the inventory] shall apply from 1 December 2010."(Emphasis added)

The Commission originally interpreted this provision as meaning that notifications had to be submitted by 1 December 2010 even under the new CLP. In other words, 1 December 2010 was originally considered the obligatory deadline for notifications.

The entry into force of the CLP on 20 January 2009, repealed Article 116 of REACH and the CLP now applies. With regards to notification, Article 40(3) of the CLP provides that:

"Substances placed on the market on or after 1 December 2010 shall be notified in accordance with paragraph 1 within one month after their placing on the market.

Substances placed on the market before 1 December 2010 may be notified in accordance with paragraph 1 before that date."

The use of the word "may" seemed to indicate that the 1 December 2010 is not an obligatory deadline but an option offered to operators to notify early.

This new provision created a contradiction within the CLP text. In addition, there was a divergence among Member States as to the interpretation of the deadline, some Member States considering that the deadline was mandatory and others that it was only a possibility.

In order to clarify the situation and improve legal certainty, the Commission made a proposal to the Competent Authorities for REACH and CLP (CARACAL) at the end of June 2009.

  • Clarification of the deadline by the European Commission

The European Commission considers that interpretation of Article 40(3) to require notification by an obligatory deadline of 1 December 2010 would not respect the intention of the legislator. On the contrary, it was the intention of the legislator to include a non-obligatory deadline of 1 December 2010, in order to encourage, but not to oblige, notification before that date.

In conclusion, the Commission stated that it is of the opinion that Article 40(3) CLP creates two deadlines:

  • The first deadline, notification before 1/12/2010, is an option for substances placed on the market before 1/12/2010. It is strictly voluntary and therefore it is not obligatory to comply with it. The European Chemicals Agency (ECHA) could consider informing stakeholders that it is encouraged or advisable to notify by this deadline.
  • The second deadline is obligatory. It is a one month deadline counting from the placing on the market and therefore it has to be calculated on a case-by-case basis.

The proposal made by the Commission is as follows:

"3. For substances placed on the market before 1 December 2010, notifications shall be made within one month of that date."

There is still some discussion around the true deadline because 1 January 2010 is a legal holiday in the EU and elsewhere. The ECHA is considering extending the deadline beyond the holiday but no decision has yet been taken. We will keep you up to date on any new development in this regard.

For more information, please contact Herb Estreicher in the Washington, D.C. office at (202) 434-4334.

[1] http://www.khlaw.com/showpublication.aspx?Show=2674