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The UKs withdrawal from the EU

REACH

With a view to the UK withdrawal from the EU, does my UK-based company still need to submit a registration dossier for a phase-in substance to ECHA by the 2018 REACH registration deadline? Would we need to do the same for a non phase-in substance?

Until the date of the withdrawal of the UK on 30 March 2019, the UK remains an EU Member State in which the provisions of the REACH Regulation fully apply. You will therefore have to register your substance for the 2018 REACH registration deadline. Moreover, your registration obligations will continue until the date of the UK withdrawal. Even beyond that date, it will be advisable for you to follow the legislative development in the UK with regard to domestic registration obligations.

My UK-based company has successfully registered a substance, and ECHA has provided my company with a registration number. How will the UK withdrawal from the EU affect my registration?

Article 3(7) of the REACH Regulation establishes that a registrant must be a manufacturer or importer of a substance or a producer or importer of an article. Article 3 (4), (9) and (11) stipulates that registrants must be established in the EU. After 30 March 2019, the UK will no longer be a Member State of the EU. Hence, any UK-based registrant can no longer be a registrant. For the purpose of the EU’s REACH Regulation, any registration by such a registrant will therefore be regarded as non-existent, as your company will, after the UK withdrawal, be based in a “third country” outside the EU/EEA. Consequently, your EU-27(EEA) customers will need to register the respective substance themselves. Alternatively, in order to continue supplying your EU-27-based customers on the basis of your own registration, as a manufacturer you will need to either relocate to the EU-27 or to appoint an Only Representative within the EU-27/EEA. As a UK-based importer from a non-EU/EEA country, you will have the option to legally establish yourself as an importer based within the EU-27. In case your company has registered as an Only Representative, the non-EU/EEA manufacturer will need to appoint an EU-27-based Only Representative in place of your company.

My UK-based company is currently acting as an Only Representative of a non-EU manufacturer. Once the United Kingdom leaves the European Union, how will that affect our status of Only Representative?

The REACH Regulation is very clear in this regard. According to its Article 8, Only Representatives shall be legally established within the EU. After the UK withdrawal, this will mean the territory of the EU-27/EEA. The manufacturer having appointed you as Only Representative will need to involve an Only Representative based in one of the EU-27 Member States or the three EEA Member States, and you will need to change the Only Representative in REACH-IT.

My UK-based company has paid the requisite fee to ECHA for the registration of our substance whilst the United Kingdom is currently still a Member State of the European Union. Will ECHA charge the payment of a fee for a legal entity change in the case that our company transfers our REACH registrations or the Only Representative status to an Only Representative based in the EU-27?

Under the provisions of the REACH Fee Regulation, our Agency will indeed charge the foreseen fee. The circumstance of the UK withdrawal from the EU does not provide a legal basis for waiving the charge of fees.

My UK-based company has registered a substance with ECHA. Will we still need to update our dossier 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 the obligation of updating your dossier without undue delay.

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 UK-based company is a downstream user of a chemical substance registered under REACH. After the UK withdrawal, will we need to continue informing our UK supplier of its uses?

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 UK-based company is a downstream user of a chemical substance registered under REACH. After the UK withdrawal, will we need to continue informing our EU-27 supplier of its uses?

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 UK-based company is a downstream user of a chemical substance registered under REACH. After the UK withdrawal, will we need to continue notifying ECHA of its uses?

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 EU-27-based company is purchasing a chemical substance from a UK-based business partner which has registered the substance under REACH. Can we still rely on the substance having been legally and validly registered within the EU in accordance with the REACH Regulation after the UK leaves the EU?

No. Your business partner will need to appoint an Only Representative established within the EU-27 or relocate to the EU-27 for the substance to remain legally registered with ECHA for the EU-27/EEA. In the absence of such an appointment or relocation by your UK-based supplier, you will need to register the substance yourself as an importer.

My EU-27-based company is a registrant in a joint submission for which a UK-based company is the Lead Registrant as well as owner of the data to which we have obtained a Letter of Access. What impact will the UK withdrawal from the EU have on our registration?

After the date of the UK withdrawal, the registration by the UK-based company will be considered non-existent. To ensure that you can benefit from a functioning joint submission with a lead registrant, you should ensure that the lead registrant moves to the EU or does a legal entity change to become an EU-27-based Only Representative, or appoint a new lead registrant and transfer the lead registrant role before the date of the UK withdrawal. Agreements among registrants should include a provision regulating the case that the appointed Lead Registrant can no longer exercise their function and foreseeing that the shared information is transferred to a new lead registration, as well as arrangements to ensure data and cost sharing can be continued in the future.

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 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 in the EU-27/EEA. If this is not the case, whilst you wish to continue to use the substance after the date of the UK withdrawal, you will need to apply for an Authorisation, yourself. We recommend that you contact your supplier, to ask them about their intentions.

As for UK-based Authorisation holders, there are two situations, in which they can transfer their Authorisation:

  • UK-based manufacturers and formulators can transfer their Authorisation to an Only Representative based in the EU-27/EEA; and
  • UK-based Only Representatives can transfer their Authorisation to an Only Representative based in EU-27/EEA. Please note however that UK-based importers cannot transfer their Authorisation to an Only Representative in EU-27/EEA.
Based on the Community Rolling Action Plan (CoRAP) 2012-2014 and its updates (lastly the update that ECHA published on 21 March 2017, covering the years 2017, 2018 and 2019), the review of certain substances under the REACH evaluation process is assigned to UK public authorities. What will happen to the respective substance evaluations that will still be pending by the date of the UK withdrawal?

Our Agency, in collaboration with the European Commission and Member State competent authorities, will review all pending substance evaluations in due time for appointing another Member State authority to take over the respective evaluation. The UK withdrawal is also being taken into consideration in the draft CoRAP update for the years 2018-2020 as well as subsequent updates.

What does my UK-based company need to keep in mind when we appoint an Only Representative (OR) in an EU-27 Member State?

You should only appoint an OR who has a sufficient background in the practical handling of substances and of the information related to them, as required by Article 8(2) of the REACH Regulation. As your representative, the OR will bear all responsibilities of importers under the Registration Title and other titles of the REACH Regulation. Among them, the OR shall keep available and up-to-date information on the quantities imported and customers sold to, as well as information on the supply of the latest update of the SDS. Please also remember to inform the importers within the same supply chain of the OR appointment. ECHA’s webpages provide more detailed information on the role of Only Representatives

Can my UK-based company set up a company on paper only in an EU-27 Member State and transfer its registrations there?

No. Every registrant company is responsible for its registrations and the substances that are covered by these registrations. Therefore, responsible staff and the relevant documentation must be available for inspection at the premises of every registrant. Only Representatives must live up to the requirements in Article 8(2) REACH. A mere address or letterbox is not sufficient and may lead to legal consequences being taken by enforcement authorities or ECHA. The company that you set up must comply with all local regulations and have legal personality at its place of establishment. Your company will need to notify this change in REACH-IT immediately ahead of the UK withdrawal. ECHA will clarify the practical steps that you will need to take, closer to this date. We also recommend that you consult ECHA’s Practical Guide No. 8.

My UK-based manufacturing company intends to transfer its registration to an Only Representative (OR) within the EU-27. Can we already do this prior to the UK withdrawal from the EU to avoid our registration being voided as non-existent when the withdrawal occurs?

Such a transfer of registration will become acceptable for UK-based manufacturers at the time of the UK withdrawal. According to Article 8 of the REACH Regulation, only a natural or legal person established outside the EU may by mutual agreement appoint a natural or legal person established within the EU to fulfil, as Only Representative, the obligations that the REACH Regulation imposes on importers. As long as the UK is a Member State of the EU, your company therefore will not qualify for performing such a transfer. Consequently, we recommend that you, prior to the UK withdrawal from the EU, 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). Your company will need to notify this change in REACH-IT immediately ahead of the UK withdrawal. ECHA will clarify the practical steps that you will need to take, closer to this date.

My EU-27-based company obtains its supplies of a chemical substance from a UK-based importer into the EU. When the UK withdrawal from the EU takes effect, our supplier will become an actor based in a “third country”. If we continue our business relations with our UK-based supplier, would our UK-based supplier be entitled to appoint our company as its Only Representative in the EU-27/EEA and transfer its registration to us, or would we need to register as an importer ourselves?

The latter is the case. You would need to act as an importer of the substance into the EU-27/EEA and submit a new registration. Article 8 of the REACH Regulation only allows manufacturers or producers of articles established outside the EU to appoint an Only Representative. This option will thus not be available to UK-based companies that will have been importers into the EU until the date of the UK withdrawal. Thus, it is not possible to transfer a registration of a UK importer to a newly appointed Only Representative. Non-EU manufacturers of the substance may of course appoint an EU-based Only Representative of the substance. However, such an Only Representative would then need to submit a new registration for the substance.

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. ECHA will clarify the practical steps to take closer to this date.

The Authorisation holder/applicant needs to notify ECHA of the transfer. ECHA will forward the notification to the European Commission.

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