8.5.3 Enforcement regime in the Netherlands

The Netherlands has chosen to implement REACH strictly. The maximum punishment for a breach is a fine of EUR 670,000 and/or imprisonment for up to six years. Dutch restrictions on using hazardous substances are more severe than those listed in Annex XVII of REACH.1 Under Dutch law, the enforcement of REACH has become part of the Environmental Management Act (EMA; Wet milieubeheer). Article 9.3.3(1) EMA qualifies the violation of certain provisions of REACH, including article 33(2) concerning the consumer's right to information, as a 'serious infringement' or 'environmental offence' under the Economic Offences Act (Wet op de economische delicten). The supervision of company compliance with REACH falls within the sphere of competence of the Ministry of Housing, Spatial Planning and the Environment (VROM). The Inspectorate for Housing, Spatial Planning and the Environment (V7), the Food and Consumer Product Safety Authority (VWA) and the Labour Inspectorate (AT) also supervise company compliance with REACH pursuant to administrative law. These governmental authorities are authorised to investigate infringements of REACH provisions and are authorised to issue an official report on their findings. In the event of an infringement, the Minister has discretionary powers to enforce administrative measures under article 18.7 EMA. Additionally, the Minister can impose an order for incremental penalty payments under article 5:32 of the General Administrative Law Act (Algemene wet bestuursrecht) on the infringer.

From a consumer perspective, it is essential to understand what he can do if the company does not reply to his request for information. There are no guidelines or relevant provisions on how the consumer can proceed with his complaint if and when this should occur. Pursuant to inquiries by the author, VROM officials informed us that, in principle, the VWA is responsible for the enforcement of article 33(2) of REACH. Hence, the consumer has to contact this agency with a complaint and the VWA might impose sanctions that can be of an administrative as well as of a penal character.

It is doubtful, however, whether a consumer would actually take action against a company. Firstly, most consumers are simply unaware of the fact that they have a right to information concerning dangerous chemicals. This has been poorly communicated to consumers.2 Secondly, even if a consumer wishes to undertake action against a company, the absence of clear guidelines as well as difficulties which present themselves when trying to access the relevant authorities will most likely bring his enthusiasm to an end. Obviously, it will not be a priority for the authorities to employ their resources to take action against a company that has failed to send a response to a consumer.

If not providing a full answer on an 'article 33(2) REACH question' was to be qualified by the Dutch authorities as tortious behaviour, e.g. as an 'unfair trade practice' , it would certainly assist a consumer, or a consumer organisation on his behalf, in addressing such a company, and if relevant in claiming damages (e.g. in line with articles 6:193b or 6:193c DCC on unfair trade practices and misleading information). Alternatively, civil law could stipulate that non-compliance with article 33(2) of REACH provides ground for rescission of the purchase contract for the product concerned.