General Background on REACH Regulation
Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) was adopted to improve the protection of human health and the environment from the risks that can be posed by chemicals, while enhancing the competitiveness of the EU chemicals industry.
REACH basically provides for a European system of registration of chemical substances. In the registration process, the chemical substance and its intended use have to be reported to the European Chemicals Agency (ECHA) by the producer or importer into the EU. Producers and importers also have to test the chemical substances and provide respective data to ECHA.
REACH, as a European Regulation, is directly applicable in Member States and hence applies to the defence sector as well. However, REACH in its Article 2, paragraph 3, states that “Member States may allow for exemptions from this Regulation in specific cases for certain substances, on their own, in a mixture or in an article, where necessary in the interests of defence”.
Detailed Description of the EDA REACH Project
Starting back in early 2009, the European Defence Agency (EDA), at the request of its participating Member States, launched – in coordination with the European Commission – an initiative with respect to REACH and its defence implications, specifically focusing on the areas of national defence exemptions and their potential impact on the European Defence Equipment Market (EDEM) as well as on building a common understanding of REACH and exchanging best practice.
To this end, the EDA has established a network of national REACH defence experts to discuss important REACH defence related topics, of interest to the Member States. A subset of this network, the so called REACH Task Force is working at the technical level on specific REACH related topics.
Furthermore, the EDA is closely interacting and cooperating with the European Commission, the European Chemicals Agency (ECHA) and the European Space Agency (ESA) in order to identify possible synergies on REACH defence aspects, as well as with defence industry.
So far, the main activities carried out within the EDA REACH portfolio are the following:
EDA Code of Conduct (CoC) on REACH Defence Exemptions
Granting REACH defence exemptions is first and foremost a national responsibility. However, REACH is clearly an area where a harmonised approach towards granting or denying of national defence exemptions would contribute to a level playing field for European defence industries, reducing their administrative burden and related costs and hence support the creation of an open and transparent EDEM and the maintenance and development of a capable and capability-driven European Defence Technological and Industrial Base (EDTIB), providing Armed Forces with the right defence equipment to meet their operational requirements.
Accordingly, the EDA Steering Board Decision on REACH in March 2010 tasked the Agency to work with Member States in establishing harmonised standards for granting defence exemptions, emphasising in parallel the need for transparency about national policies and procedures.
As a result, the EDA’s REACH web-portal, allowing pMS to post basic information on their national procedures for granting defence exemptions, was established and is accessible to the public since 14 October 2010.
In March 2015, the EDA Code of Conduct (CoC) on REACH Defence Exemptions and associated technical Framework for Applying for a Defence Exemption from a Requirement of REACH, annexed to the CoC, were adopted by the EDA participating Member States.
The Code of Conduct on REACH Defence Exemptions sets as common goal that subscribing Member States (sMS) will fully support the objectives of REACH and provide for the highest safety and traceability standards possible when granting REACH defence exemptions. Furthermore, the sMS agree to establish on a voluntary basis suitable measures to acknowledge other sMS exemption decisions in accordance with national law, as well as to make information on national procedures publicly available. In parallel, the technical Framework for Applying for a Defence Exemption from a Requirement of REACH, annexed to the Code of Conduct, aims to standardise, as far as reasonably practicable, national defence exemption procedures and provide an agreed set of minimum standards in order to guarantee a safety equivalent with the REACH requirements.
All EDA participating Member States, except Poland, as well as Norway have decided to subscribe to and therefore participate in the implementation of the Code of Conduct on REACH defence exemptions. On the basis of national implementation of the Code of Conduct, harmonisation of subscribing Member States’ national procedures for granting REACH defence exemptions, is being progressively achieved.
EDA Study on the impact of REACH and CLP chemical regulations on the defence sector
REACH creates significant challenges for defence stakeholders, especially because military equipment can be characterised by low production runs and long life-cycles, high complexity, and supply chain depth and diversity. EDA outsourced a dedicated study to examine what impact the EU’s regulations on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and on the Classification, Labelling and Packaging of chemical substances and mixtures (CLP) have had on the European defence sector (governments and industry) since they entered into force in 2007 and 2009 respectively. Further to assessing the impact of REACH (and associated CLP) regulation on defence, the study aimed to develop recommendations for further improvement of REACH regulation and its current implementation regime.
The basis for the study, which was finalised in December 2016, aimed for a win-win solution achieving two principle goals: a high level of health and environmental protection, as well as ensuring the operational effectiveness of Member States’ Armed Forces and enhancing the competitiveness and innovation of the European Defence Technological and Industrial Base.
The study’s consultation facilitated input from a wide range of European defence stakeholders including, in particular, the EDA Member States’ Ministries of Defence (MoD), European Commission, European Chemicals Agency (ECHA), Member States’ Competent Authorities on REACH and CLP and the defence industry.
Based on the study results, considering the complexity of defence supply chains and long lifecycles of military equipment, REACH (and associated CLP) regulation, as they stand now, may impact the actual operability of Member States’ Armed Forces.
Against this backdrop, the study proposes several improvements and related actions for stakeholders, broadly grouped into the three main areas:
- More time and resources (for innovative substitution of Substances of Very High Concern);
- Consistency of REACH, other EU laws and policies;
- EU-level solutions for defence under REACH.
EDA has informed the competent stakeholders (Member States’ MoDs, European Commission, ECHA and the defence industry) on the outcome of the study and is now in the process to further liaise with them, and to support further examination and implementation of the study proposals.
The study recommendations addressed to the Commission also serve as EDA input to the upcoming Commission review of the REACH regulation in 2017.
Ammunition Classification under REACH
Based on the outcome of the Agency’s work conducted in this field since 2014, in September 2017 the EDA Member States adopted a Common Position on Ammunition Classification under REACH, developed with the close support of the Member States’ REACH and ammunition experts at technical level and on the basis of continuous exchange with the European Commission, ECHA and EU defence industry.
The adoption of the Common Position by Member States constitutes an important milestone, contributing greatly towards:
- Reducing the risk of misinterpretation of, and exchanging compliance to, the REACH provisions on substances / mixtures or articles;
- Supporting the EDTIB in its efforts to raise awareness on issues pertaining to ammunition classification under REACH;
- Minimising the possibility of potential incorrect classification of ammunition along the REACH provisions on substances / mixtures or articles, and related potential negative impact on the operational effectiveness of Member States’ Armed Forces.
Following its adoption by EDA participating Member States, also Norway reviewed and decided to adopt the Common Position on Ammunition Classification under REACH in November 2017.
EDA REACH Roadmap 2018-2020
Following assessment and prioritisation of an initial large number of proposals for EDA REACH activities tabled previously by Member States, the Commission, EU defence industry and related recommendations of the EDA Study on the Impact of the REACH and CLP European Chemical Regulations on the Defence Sector, on 20 October 2017 the EDA Steering Board endorsed a comprehensive list of EDA REACH activities for years 2018-2020 (EDA REACH Roadmap 2018 – 2020), aiming especially at mitigating the impact of REACH on defence.
The EDA REACH Roadmap 2018-2020 comprises 2 different categories of activities:
- Generic tasks/subtasks, which are conducted in a continuous manner, including administrative tasks, interaction and monitoring/coordinating activities with stakeholders; and
- Specific tasks/subtasks, which have a specific scope/duration and are therefore prioritised with respect to the sequence of implementation, including activities related to the Commission REACH Refit 2017, the EDA Code of Conduct on REACH Defence Exemptions, the EDA Member States’ Common Position on Ammunition Classification under REACH and specific proposals of the EDA Study on the Impact of the REACH and CLP Regulations on the Defence Sector.
Upon its endorsement, the Agency has disseminated the Roadmap as widely as possible to relevant stakeholders and continues to work closely with Member States’ REACH experts (including the EDA REACH Task Force at the technical level), the Commission, ECHA and defence industry for its implementation, which is in full progress.
Interaction with Stakeholders
EDA maintains close interaction and coordination with key stakeholders on REACH defence issues, at EU level: European Commission, European Chemicals Agency and EU defence industry. Being one of the main addressees of the REACH Regulation, industry is a very important stakeholder for EDA REACH activities. The Agency has established, in the previous years, a continuous channel of communication and exchange on REACH defence issues with the ASD REACH & Chemicals Management Working Group, National Defence industry Associations (NDIAs) and individual industries with REACH expertise/activities on specific areas (e.g. ammunition). Finally, acknowledging the common interests and similar challenges faced between defence and space sectors on REACH issues, EDA has established close interaction and cooperation also with European Space Agency, in this area.
EDA Steering Board Decisions
On 12 December 2018, the EDA Steering Board (in R&T Directors’ format), while acknowledging the potential direct or indirect implications of REACH to the EU Ministries of Defence/Armed Forces, due to the risk of obsolescence of REACH-regulated substances that are critical for the sustainment or development of defence capabilities, encouraged participating Member States to consider priority actions as regards innovative R&T activities aiming at substitution of REACH-regulated substances. The Steering Board also tasked the Agency to pursue, in cooperation with participating Member States, the implementation of collaborative innovative R&T activities to mitigate, and if possible minimise the impact of REACH in the defence sector. R&T activities for the progressive substitution of Substances of Very High Concern (SVHCs) in the area of defence, contribute directly and strongly towards the overarching EU objectives for a non-toxic environment and a circular economy, wherein innovation is a key element.
On 21 February 2019, the EDA Steering Board (in National Armament Directors’ format)welcomed the overall progress in the implementation of the EDA REACH Roadmap 2018-2020, and tasked the Agency, in close coordination with Member States and the European Commission, and in consultation with industry, to pursue further implementation of the EDA REACH Roadmap activities and to report back on progress in 2021. In parallel, the Steering Board:
- noted the progress on the harmonisation of REACH defence exemptions at EU-level;
- noted an EDA analysis of the European Commission’s REACH Review with respect to the EDA REACH Study recommendations previously submitted to the European Commission, based on which the majority of the EDA study proposals have been dealt with; and finally
- encouraged Member States to take further actions at national level to harmonise procurement contracts with REACH, on the basis of related recommendations developed by EDA.
EDA Study on the impact of (other than REACH/CLP) European Chemical Regulations on defence
On 25 May 2020, EDA launched a new study to evaluate the impact EU regulations on chemicals and waste might have on the wider defence sector. The study will be carried out by a consortium encompassing Milieu Consulting SPRL (consortium leader) and REACHLAW Oy, and the results are expected to be available by the end of this year.
The study is a follow-up to the to the 2016 EDA Study on the Impact of REACH and CLP European Chemical Regulations on the Defence Sector, and its focus is other EU regulations related to chemicals which may also have an impact on European defence capabilities, such as:
Biocidal Products (BPR)
- Persistent Organic Pollutants (POP)
- Ozone Depleting Substances (ODS)
- Greenhouse Gases (F-GAS)
- Restriction of Hazardous Substances (RoHS).
The study will also look into potential repercussions on defence of the recently revised EU Waste Framework Directive (WFD), and specifically its provision under Article 9 on providing information to the European Chemicals Agency (ECHA) database on Substances of Concern in articles as such or In complex Products (SCIP), as from 5 January 2021.
The aim of the study is to provide detailed information on the impact of those EU legislations on the defence sector and to propose recommendations on how defence stakeholders (Ministries of Defence, Armed Forces, defence industry) could deal with them in a more coherent way.
As part of the study, the contractor will be conducting consultations with a range of relevant stakeholders, such as the European Commission, the European Chemicals Agency (ECHA), Member States’ MoDs, Member States’ competent authorities as well as defence industry stakeholders, including the AeroSpace and Defence Industries Association of Europe (ASD) as well as National Defence Industry Associations (NDIAs).