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 the European Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and its defence implications, specifically focusing on the area of national defence exemptions and their potential impact on the European Defence Equipment Market (EDEM).
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”.
Granting such 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.
The Agency is also building a common understanding of REACH and to exchange best practice. To this end, the EDA has established a network of national REACH defence experts to discuss other important defence related REACH 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. The EDA supported by the REACH Task Force is currently developing a common view for ammunition classification under REACH, which has been identified as an important issue for Defence Ministries and industry.
The EDA is closely interacting and cooperating with European Commission and the European Chemicals Agency (ECHA) in order to identify possible synergies on REACH defence aspects, as well as with defence industry.
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.