5th January 2021 is getting closer, and with it the obligation of suppliers of articles (as such or in complex objects) to provide information about SVHCs (substances of very high concern) in the ECHA’s (European Chemicals Agency) SCiP database (Substances of Concern In articles as such or in complex objects (Products)). This obligation seems unavoidable, even though many questions are still open.
The amendment to the Waste Framework Directive (WFD) by Directive 2018/851/EU resulted in the following general provisions:
- Obligation of suppliers of articles in the sense of the ECHA’S REACH Regulation to “make available” the information required in Art. 33 Sec. 1 as of 05.01.2021.
- Task of the ECHA to set up a database for this information (in theory) by 05.01.2021 and make it available to waste treatment facilities and, on request, to consumers.
Until now, the ECHA has only presented a database prototype, which it did in March 2020; SCiP version 1.0 is planned for October/November 2020.
Since the underlying legislation is a directive, each individual member state must implement the regulation in its own legislation. Past experience has shown that such implementations, which should basically be a one-to-one transposition, always take on different slants, e.g. during the translation process. For that reason new legislation at the European level is now enacted in the form of (directly applicable) EU regulations (see Medical Device Regulation, planned Machinery Regulation).
The member states had a deadline of 5th July 2020 for implementing the new provisions of the Waste Framework Directive into national legislation. In Germany, the Bundestag adopted the amendment of the Circular Economy Act (KrWG) on 17th September 2020. In the German rendering of the newly added Section 62a KrWG, suppliers are obliged to enter data (“einstellen”), rather than make it available (“zur Verfügung stellen”), which clearly intensifies the requirements to the detriment of suppliers. Germany’s liberal FDP party referred to that in their motion to adopt the formulation from the Waste Framework Directive one-to-one in the German Circular Economy Act. We will need to wait and see how the provisions are implemented in the other member states.
Another open point is that the ECHA has clearly overstepped its competence with regard to the specific information requirements. The legal grounds presented by the ECHA as justification do not substantiate the information requirements that are being called for. Art. 9 Para. 1 i) WFD specifically references Art. 33 Para. 1 of the REACH Regulation. Recital 38 of Directive (EU) 2018/851 does not have the validity of a legislative act; nor does the “Non-paper on the implementation of articles 9(1)(i) and 9(2) of the revised Waste Framework Directive 2008/98/EC” have any legally binding effect.
The ECHA first presented the specific information requirements in September 2019 in the document “Detailed information requirements for the SCiP database”. Although the “mandatory information” requirements have been somewhat reduced since then, they still include requirements that go considerably beyond the notification obligation pursuant to Art. 33 Para. 1 of the REACH Regulation.
- “Primary article identifier”: Entry of a numerical or alphanumerical code to identify the article or complex object (e.g. EAN, GITN)
- “Article category”: Entry of the article/complex item category (e.g. TARIC code)
- “Material category and/or mixture category”: Entry of the material or mixture category
In the future this information must be collected in (even more specific) contractual agreements with the supplier. That would seem to mean that the so-called risk-based approach with corresponding classification of the trustworthiness of the supplier is no longer sufficient.
The planned simplifications for entering information, e.g. using links to existing entries created by a (previous) supplier (“simplified notification” or “referencing”) have not yet been finally clarified.
Yet the goal of the SCiP database is to provide the recycling sector and others with the information they need to efficiently handle products containing “substances of very high concern”. However, the recycling sector (including the BDE - Federal Association of the German Waste Disposal, Water and Raw Materials Industry) has already stated in a position paper that the SCiP database in its present form does not offer any practical improvement for the recycling and waste sector. For efficiency reasons, it is not practicable to use the database to determine information about individual resources for each component of an object, as recycling companies generally think in terms of tons rather than individual items. The waste stream of complex objects does not allow an assignment of different components to individual resources and materials.
It is still highly doubtful how and whether the prerequisites for the SCiP database can be clarified before 5th January 2021. As is so often the case, it is companies that are suffering here, as they still have to meet their obligations in real life.