DOCTRINE : RÈGLEMENT CE - SUBSTANCE CHIMIQUE - IMPORT - TERRITOIRE DE L’UE - SANCTIONS

Reach : Un règlement très technique qui soulève des questions de distribution et de concurrence

The EC REAC Regulation was adopted on December 18, 2006, and entered its active phase on January 1, 2009. REACH requires undertakings to cooperate with each other in order to register any chemical substance they manufacture, import or use within the EU territory ; otherwise, they could be subject to penalties and banned from marketing their products within the EU. The implementation of this Regulation raises two different issues. On the one hand, the regulation imposes obligations on every supply chain actor (vertical level). Non-compliance with the Regulation gives rise to distribution issues. Thus, manufacturers and importers that do not abide by REACH and continue to market their products could not only be subject to the specific fines prescribed by REACH but could also be charged with non-performance of their contractual obligations by their commercial partners. However, if they are unable to market their products because they failed to register their substances, they risk being held liable for a sudden supply breakdown. On the other hand, the Regulation imposes the obligation on potential competitors to cooperate (horizontal level), which indirectly raises competition law issues. The Regulation also obliges undertakings to exchange technical information and to jointly register the substance they manufacture or import. A satisfactory implementation of this obligation would favour the setting up of consortia uniting the undertakings. These mechanisms run the risk of facilitating the exchange of commercially sensitive information or of generating discriminatory practices that violate Articles 81 and 82 of the EC Treaty. Thus, the REACH Regulation must be considered as a regulation that imposes serious technical obligations, but whose implementation is likely to generate pitfalls in both vertical and horizontal relationships.

1. 849 pages, 17 annexes, 41 definitions, approximately 30,000 chemicals and 66,000 undertakings potentially concerned throughout the European Union (EU)... 2. Such statistics clearly imply that the subject involved is very technical. Indeed, these figures constitute characteristics of the Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), adopted on 18 December 2006, in force since 1 June 2007, and which entered its main stage (cooperation and registration) on 1 January 2009. 3. REACH constitutes a major review of the EU chemicals legal framework, based on a mechanism of registration which governs the placing on the market (importation included) of substances. Manufacturers and importers of chemicals falling within the scope of the

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Frédéric Puel, Stephanie Chantre, Reach : Un règlement très technique qui soulève des questions de distribution et de concurrence, mai 2009, Concurrences N° 2-2009, Art. N° 25765, pp. 78-88

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