Some Considerations on the Scope of REACH: Importance of the correct legal Classification of Substances

The adoption of the REACH Regulation has toughened the administrative intervention regime with regard to manufacturers, importers and downstream users of substances included under the scope of the Regulation. However, the degree of intervention and hence the legal status of these persons differs on the basis of the legal classification of the substance. In this respect, wastes are excluded from the scope of REACH whereas recovered substances are generally included. In addition, a differentiated regime is laid down for other related categories such as by-products, second raw materials and intermediates. This differentiation of the legal regime applicable to the various categories leads to different obligations for manufacturers, importers and downstream users according to the legal classification of a substance. However, reaching a correct legal classification is no easy task, primarily for two reasons. One is the complexity of some of the definitions contained in REACH, such as the definition of the concept of intermediate and the different categories into which it is subclassified (on-site isolated, transported isolated, and nonisolated) and the way in which it is distinguished from other similar realities. The other is the absence of definitions of certain substances for which REACH lays down a concrete legal regime, thus making it necessary to turn to the judgements rendered by the Court of Justice of the European Communities (hereafter CJEC) on what could be termed alike materials such as by-products or second raw materials. In line with the above, this article attempts to establish certain criteria enabling distinctions to be made between the different substances by drawing on the above legislation and caselaw.