Einde inhoudsopgave
Corporate Social Responsibility (IVOR nr. 77) 2010/8.5.2
8.5.2 Enforcement of REACH
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS364578:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
EC Treaty (Treaty of Rome, as amended), art. 249 (pursuant to the Lissabon Treaty this has become article 288 EC Treaty).
Note 10 supra [Craig, De Burca], p. 85.
The principle of procedural autonomy implies that in the absence of uniform procedural rules, the Member States have authority to lay down the procedural rules and remedies available before national courts as a matter of national law. Also see note 2 supra [Reich, Micklitz], p. 35.
ECHA, 'The Forum of the European Chemical Agency', at: http://echa.europa.eu/about/organisation/forum_en.asp, accessed on 25 June 2010.
Strategies for enforcement of Regulation (EC) no. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), 2009, Forum for Exchange of Information on Enforcement, 2-4 December 2008, at http://echa.europa.eu/doc/about/organisation/forum/strategies_enforcement_reach.pdf, accessed on 24 June 2010.
Most of the new Member States have chosen more lenient measures to penalise violations of REACH. E.g., in Latvia, the fine is from 300 to 1,000 Lats (1000 Lats is equivalent to EUR 1.426) depending on the seriousness of the infringement; in Romania, the punishment is a fine from 6,500 to 50,000 Lei (50,000 Lei is equivalent to EUR 11.771 euro); and in the Czech Republic, fines range from 50,000 to 500,000 CZK (500,000 CZK is equivalent to EUR 19.772). The majority of the other EU States have imposed more stringent penalties.
As REACH is a Regulation, it has direct effect in all Member States,1i.e. it will automatically form part of Member States' national legislation.2 In accordance with the principle of procedural autonomy,3 the enforcement of REACH is carried out through Member State legislation. The Member States thus have a significant responsibility for establishing mechanisms that will ensure the smooth implementation of REACH by their industries. Due to the complexity of REACH (849 pages of legislation), a 'Forum for Exchange of Information on Enforcement' (Forum) was created for the purpose of assisting the Member States with the implementation. The Forum is part of ECHA.4 It has issued non-binding guidelines5 which allow Member States a certain degree of discretion to adopt enforcement strategies according to their national priorities. Member States' enforcement regimes may therefore vary. For example, the penalty system according to article 126 of REACH stipulates that the Member States shall lay down "the provisions on penalties applicable for infringement of the provisions of the Regulation and shall take all measures necessary to ensure that they are implemented". Many differences can be observed among the States that have already determined the penalty system for infringements of the Regulation.6
The consumer's right to information under article 33(2) of REACH can only be guaranteed if sanction mechanisms or other measures are adequately set up and maintained at a national level. The question is how the enforcement of the consumer's right to information can be regulated. To find an answer to this question, the author examined the Dutch legal system.