UK based entities who rely on or currently hold REACH registrations need to take immediate action to ensure continued access to the EU market in the event of the UK’s possible withdrawal from the EU on 31 October 2019. In the event of no deal, existing UK REACH registrations will be void and access to such registrations on REACH-IT will be lost unless the registration transfer to an EU entity is initiated before the withdrawal date.
As highlighted in our previous alerts, ECHA has released guidance on how to transfer UK REACH registrations and it is clear that the transfer cannot be achieved overnight. It is a more straightforward process for the UK based manufacturers as well as Only Representatives; UK REACH registrations can be moved to a new EU based Only Representative. However, ECHA is insisting that an “importing business” has to be moved for the UK based traders and importers holding REACH registrations and that a “letter box with address” will not suffice to take over the UK REACH registrations.
In any event, new entities in the EU have to: be set up or appointed, new contracts drafted, data ownership issues resolved, and the ECHA “transfer of registration fee” needs to be paid. Once these stages have been completed, the UK entity holding REACH registrations can “initiate” the REACH registration transfer on REACH-IT, though it is advisable for a new EU entity to accept such a transfer only after Brexit actually happens, which at the time of writing could well be 31 October 2019.
K&L Gates has been advising numerous UK based REACH registrants on the best strategies available to undertake the REACH registration transfer in line with the requisite legislation and guidance while limiting disruption to the company’s day to day business activities. However, this process needs to be undertaken urgently by companies relying on UK REACH registrations to ensure that existing customer relationships are not jeopardized as well as ensuring access to the EU market is not disrupted.
In the wake of Brexit, the UK will have its own REACH regime as already suggested and set out in the guidelines available via the HSE website. Should the UK leave the customs union, the UK and EU regulatory agencies would operate independently from each other, companies supplying and purchasing substances, mixtures or articles to and from the UK will need to ensure that the substances are registered with the new UK agency (i.e. the HSE) as well as ECHA. Companies procuring substances and mixtures from EU countries would become importers under UK REACH, these companies will then have an obligation to hold a UK registration as importers.
In order to ensure continued access to the UK market and to maintain supply chains, the HSE has proposed to implement a notification system before full registration obligations are required. The HSE has highlighted that it intends for the primary aspects of the REACH regulation to be retained in the UK, subsequent to the changes necessary for it to work in a domestic context, but a separate registration procedure from ECHA will still be required.
K&L Gates REACH team will monitor the developments that arise from any new guidance that is published by the HSE and DEFRA in the near future.
As it may take time to implement any necessary changes, we recommend businesses seek advice on the available options as soon as possible to avoid the potential risk of UK REACH registrations being void post-Brexit.