Q&As

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The UKs withdrawal from the EU

REACH

My UK-based company does not hold and is not covered by a REACH Authorisation for an Annex XIV substance and the Latest Application Date is approaching. With a view to the UK withdrawal from the EU, do we need to apply?

Companies using the substance in the UK would need to hold or be covered by an Authorisation between the sunset date and the date of the UK withdrawal. Whenever the sunset dates of respective Annex XIV substances fall after the UK withdrawal date of 30 March 2019, you will not have to apply for a REACH Authorisation to use any such substance.

Note, however, that if an applicant has submitted its application prior to the Latest Application Date, they benefit from transitional arrangements (please see the Q&A 572, “why I should submit the application before the Latest Application Date” on ECHA’s other Q&A webpages). This may become important in the case that the REACH provisions on Authorisation continue to apply in the UK beyond the UK withdrawal, due to either domestic UK law or potential agreements between the EU and the UK.

For UK companies placing an Annex XIV substance on the EU-27/EEA market after the UK withdrawal, please see the Q&A 1428 on downstream users located in the EU-27/EEA relying on an Authorisation granted to a UK supplier, on these webpages.

My UK-based company holds or is covered by a REACH Authorisation for certain uses of an Annex XIV substance. After the UK withdrawal, will my company still need to adhere to the conditions of use determined by this decision?

No. As the EU legislation will no longer apply to the UK after the withdrawal date, you will no longer be subject to this obligation. Even before that date, we advise you to follow the legislative development in the UK with regard to domestic authorisation obligations, as you will need to adhere to applicable UK law in this respect. For REACH Authorisations covering a UK-based company’s downstream users located in the EU-27/EEA, please see the respective Q&A on these webpages.

My UK-based company is a downstream user within the UK of a substance covered by a REACH Authorisation in accordance with Article 56 (2) of the REACH Regulation. Will we need to continue to comply with the obligations imposed by the Authorisation decision also after the UK withdrawal?

No. As the EU legislation will no longer apply to the UK after the withdrawal date, you will no longer be subject to this obligation.

My company is a downstream user located in the EU-27/EEA and relies on a REACH Authorisation granted to a UK supplier (or a pending application for an Authorisation). Will our use be covered after the UK withdrawal?

No. As the REACH Regulation will no longer apply to the UK upon the UK withdrawal from the EU, the REACH Authorisations (and pending authorisation applications) will lose their legal effect as of the date of the UK withdrawal.

Therefore, you will need to rely on a supplier with a valid Authorisation (or with a pending authorisation application) in the EU-27/EEA. If your supplier does not hold an authorisation, and you wish to continue to use the substance after the date of the UK withdrawal, you will yourself need to apply for an Authorisation. We recommend that you contact your supplier, to ask them about their intentions.

As for UK-based Authorisation holders (or authorisation applicants), there are a number of situations in which they can transfer their Authorisation (or pending authorisation application):

  1. UK-based manufacturers and formulators can transfer their Authorisation or pending application for authorisation to an Only Representative based in the EU-27/EEA;
  2. UK-based Only Representatives can transfer their Authorisation or pending application for authorisation to a new Only Representative based in EU-27/EEA, appointed by the non-EU manufacturer (also see Q&A 1250). Please note however that UK-based importers cannot transfer their Authorisation to an Only Representative in the EU-27/EEA.
  3. Like any EU-based legal entity, UK-based legal entities can currently transfer their Authorisation or pending application for authorisation where the transfer is the result of the change of legal entity referred to in Q&A 1239 (for instance, as the result of a merger, a split or an asset sale (sale of a production site or business)) and the person to whom it is transferred qualifies as manufacturer, importer or downstream user with regard to the substance(s) and the use(s) covered by the application for authorisation or the decision. A change of legal entity cannot extend the scope of the original application for authorisation or of the Authorisation, e.g. to cover different uses. (Please see Q&As 1239 and 1241 to 1249.).

With regard to the timing of such transfers:

  • In case 1, the transfer can only take effect on the occasion of the UK withdrawal (for detailed advice, please see Q&A 1466).
  • In cases 2 and 3, the transfer must take place ahead of the UK withdrawal and be notified to ECHA (through the ‘Legal entity change’ functionality in REACH-IT) without undue delay. In fact, ECHA recommends to initiate the transfer at least one week ahead of the UK withdrawal, to allow for a timely update should ECHA identify any issue with the attached documentation. It should also be noted that after this transfer, the UK-based company cannot continue its manufacturing / importing / Only Representative activity, as long as the REACH Regulation applies to the UK. If the UK-based company only intends to implement the transfer on the withdrawal date, it can include a suspensive clause in the transfer agreement with the successor company stipulating that the transfer takes effect on the date of UK withdrawal from the EU. In this case, after the legal entity change is initiated in REACH-IT, the successor legal entity should review the transfer, but not proceed to accept it before the UK’s withdrawal. (Please see also the instructions in the 'How to transfer your UK REACH registrations prior to the UK withdrawal from the EU' guide).

The advice provided above applies to both Authorisations and pending applications.

Can my company, which is a UK-based manufacturer or formulator, transfer its REACH Authorisation (or its Application for Authorisation) to an Only Representative within the EU-27/EEA? How can my company do this prior to the UK withdrawal from the EU to avoid our Authorisation (or application) being voided as non-existent when the UK withdrawal takes effect?

Yes, such a transfer will become possible at the time of the UK withdrawal.

However, as long as the UK is still a Member State of the EU and your company is therefore not located in a “third country”, your company will not qualify for performing such a transfer. Consequently, we recommend that prior to the UK withdrawal from the EU you set up a contractual agreement to appoint an Only Representative which contains a suspensive conditional clause stipulating that the appointment takes effect on the date when the UK withdrawal from the EU takes effect. The date and time of the UK withdrawal is foreseen to be 30 March 2019, 0000 hours CET (i.e., 29 March 2019, 2300 hours BST). The Only Representative will need to adhere to all the conditions of use determined by the Authorisation decision, including any specific duties foreseen in the decision for your company.

Your company will need to notify this change in REACH-IT immediately ahead of the UK withdrawal by transferring the applications or authorisations to the new Only Representative: You will need to initiate the transfer during the ‘Brexit window’ between 12 and 29 March 2019, similarly to the instructions in the 'How to transfer your UK REACH registrations prior to the UK withdrawal from the EU' guide. In fact, ECHA recommends to initiate the transfer as early as possible during the window, to allow for a timely update should ECHA identify any issue with the attached documentation. See also Q&A 1242 on how to use the legal entity change functionality of REACH-IT for applications for authorisation.

ECHA will forward the notification to the European Commission.

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