European Union: EU Court Clarifies The Calculation Of SVHC In Articles And Related Notification Duties

Last Updated: 12 October 2015
Article by Claudio Mereu

On 10 September 2015, the European Court of Justice delivered an important judgment in case C-106/14 Fédération des entreprises du commerce et de la distribution (FCD) and Fédération des magasins de bricolage et de l'aménagement de la maison (FMB) v Ministre de l'Écologie, du Développement durable et de l'Énergie. The case is a request for a preliminary ruling from the French Conseil d'État (Supreme Court) and it concerns the concept of ''article'' under the REACH Regulation, and the duty to notify the presence of Substances of Very High Concern (''SVHC'') which are present in the article at a concentration of 0.1% weight by weight (w/w).

Fieldfisher published an article on Advocate General Kokott's Opinion on the case in March 2015, which is available here.


REACH defines "articles" as "an object which during production is given a special shape, surface or design which determines its function to a greater degree than its chemical composition".  Article 7(2) in conjunction with Articles 57 and 59 of REACH imposes on producers and importers the obligation to provide information to the European Chemicals Agency ("ECHA") when an article contains more than 0.1% w/w of an SVHC. The same duty is imposed by Article 33 on suppliers vis-à-vis recipients and consumers of such articles. A notification is not required for a substance in articles which have been produced or imported before the substance has been included on the Candidate List for authorisation.

The question arises as to whether, in the case of a product composed of one or more articles within the meaning of Article 3(3) of the REACH Regulation, Articles 7(2) and 33 of that regulation must be interpreted as meaning that the concentration threshold for a SVHC of 0.1% w/w referred to in those provisions must be established in relation to the total weight of that product or only the component part in which it is present.

The issue of how to calculate the concentration where an article is made up of different articles has been subject to many disagreements between Member States since the entry into force of REACH in 2007. 

In particular, the European Commission, supported by the majority of the Member States, takes the view that the proportion of a SVHC should be calculated by reference to the assembled article in total. Other Member States — such as France in these proceedings — contend that the threshold must be related to the individual components of the article. It is in this context that the two French trading company federations were contesting the government's position.


In summary, the Court concluded that in the case of complex articles the calculation of the 0.1 % w/w threshold must be made by reference to each component that qualifies as an "article".

The Court and the Advocate General analysed two legal points – firstly, the concept of 'article' under Article 3(3) of REACH; and secondly, its relevance for the duties to provide information under Articles 7(2) and 33 of REACH.

Concept of "article"

It should be noted that REACH does not contain any provisions governing so-called ''complex'' product. In the absence of any specific provisions, the Court held that "there is no need to draw a distinction not provided for by the REACH Regulation between the situation of articles incorporated as a component of a complex product and that of articles present in an isolated manner".

Thus, the classification as an article remains applicable to any object meeting the criteria of Article 3(3) REACH and forming part of the composition of the complex product. Therefore, when such an article contains a SVHC in a concentration above 0.1% w/w, it should be notified to ECHA pursuant to Article 7(2) of REACH and to the recipient of the article pursuant to Article 33 of REACH.

Duties of market players

The Court held that a producer's duty to notify articles under Article 7(2) concerns those articles which "they make or assemble themselves". It follows that a producer's obligation to notify articles is not applicable to an article that was made by a third party. This is the case even when the article is used by that producer as an input. The third party, on the other hand, is subject to the duty to notify articles that it makes or assembles.

In its observations the Commission stated that it can be difficult for importers to obtain the required information from their suppliers that are established in non-EU countries. According to the Court, difficulties of that nature do not, however, affect the interpretation of Article 7(2) of REACH. Thus, the Court concluded that the importer of a product, comprising one or more of the objects defined as articles, must also be considered to be the importer of those articles and has a duty to notify ECHA.

With regards to suppliers, the Court said that their duty to provide information under Article 33 has to be applied to successive operators all along the supply chain and is "therefore intended to follow the article to which it relates through to the final customer."  Further, the Court held that it is for the supplier of a product containing an SVHC above 0.1% w/w "to inform the recipient and, on request, the consumer, of the presence of that substance by providing them, as a minimum, with the name of the substance in question."


This ruling of the European Court of Justice has far-reaching consequences for the chemicals industry because it changes the approach taken by the Commission and ECHA in the past towards the calculation of the 0.1% w/w threshold for SVHC in articles. Based on a literal interpretation of Article 3(3) of REACH the Court took the view that there is no support for adding a distinction that is not provided for by the REACH Regulation between the situation of articles incorporated as a component of a complex product and that of articles present in an isolated manner.

The judgment thus shows that ECHA's interpretations are not always necessarily correct and that the Courts are ultimately in charge of interpreting EU law. In other words, it is not always permissible for ECHA to add distinctions and criteria going beyond the wording of REACH.

It will be interesting to see if and how this ruling will affect other ongoing discussions of a similar nature  where ECHA has added distinctions or additional criteria, e.g., the definition of intermediates, on which there is some disagreement between ECHA and the industry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions