Regulation EC/1907/2006 on the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) does not provide for a general exemption of the defense industry from REACH, but leaves it to “Member States to allow for exemptions from the Regulation in specific cases for certain substances, on their own, in a preparation or in an article, where necessary in the interest of defense” (Article 2 (3) of REACH).
In this respect REACH takes a different approach than Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (RoHS) which contains chemical restrictions for hazardous substances specifically for electrical and electronic equipment and Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators. The RoHS Directive applies to certain types of electrical and electronic equipment covered by Directive 2002/96/EC on waste electrical and electronic equipment (WEEE), which itself specifically excludes from its scope “equipment which is connected with the protection of the essential interests of the security of Member States, arms, munitions and war material.” This exemption however, does not apply to products which are not intended for specifically military purposes (i.e. dual-use items). The Batteries Directive does not apply to batteries and accumulators used in “equipment connected with the protection of member States’ essential security interests, arms, munitions and war material, with the exclusion of products that are not intended for specifically military purposes”.
Different approaches regarding REACH defense exemptions in EU Member States
As a result, any exemptions for the defense industry can differ from country to country since Member States may allow for exemptions but are not obliged to do so. The wording used in REACH leaves Member States room for interpretation on how to further detail defense exemptions in their national legislation. A review of the current situation regarding defense exemptions in three countries (the United Kingdom, France and Germany) reveals that it is likely that different approaches will be taken by different countries.
The UK, for example, published REACH Guidelines for the Ministry of Defense (MoD)in January 2008 and in a MoD REACH Process Guidance Document in May 2008 stated that the Secretary of State (SoS) can exempt the MoD or anyone involved in defense-related business from the requirements of specific articles of the REACH Regulation. According to UK Government guidelines, these exemptions will be granted in the form of written certificates, conforming to UK legislation. The MoD will establish standards and management arrangements that aim to reach at least the level of the REACH Regulation, if feasible. Moreover, the MoD declared that it will grant defense exemptions from REACH “when absolutely necessary” and it urges Defense Industry Partners to ensure that their suppliers implement a system to register all substances in accordance with REACH. With this approach, the MoD aims to highlight in advance the need to look for alternatives for a substance if the supplier intends to discontinue providing it.
France foresees an exemption for the defense industry from REACH in the Environment Code (Code de l’Environnement), which the Ministry can grant where national defense interests justify. Such exemptions are to be granted in specific cases and for certain substances and preparations. Regulatory provisions implementing this article have not been adopted yet, therefore currently no specific information can be given on which substances and circumstances will be concerned by the exemptions neither on the regulatory approach to be used to grant such exemptions. However, the Ministry of Defense states that it will aim for a measured application of the exemption clause for the defense industry and it will ask its suppliers to comply with REACH requirements.
In Germany the situation is similar to France. The Chemicals Act (Chemikaliengesetz – ChemG) empowers the Ministry of Defense to adopt exemptions from the Act itself referring to REACH as well as detailing Ordinances, on a case-by-case basis as well as for certain substances, preparations and articles, if this is necessary in the interest of defense and possible under Community legislation. No further details are currently available on how the Ministry of Defense will handle this exemption option and the Ministry did not provide any information on the issue. However, the Federal Association for German Industry (Bundesverband der Deutschen Industrie – BDI) urged the Ministry to adopt comprehensive regulations in order to avoid competitive disadvantages for the German defense industry.
The exemption or non-exemption from REACH can have serious impacts on the defense industry, particularly concerning the import, export and transit of military equipment into States outside the European Economic Area (EEA), which includes all EU Member States plus Iceland, Liechtenstein and Norway. EU companies may have a competitive advantage if non-EU companies
are prevented from selling their equipment in the EEA because of non-compliance with REACH requirements. On the other hand, EU companies may suffer a disadvantage selling their products in non-EU States, as EU products may not be compatible with other products or may be too expensive due to compliance with REACH requirements .
It should also be considered that compliance with REACH provisions could affect interoperability of military equipment for example regarding their use, maintenance and logistic support between EEA and other countries. Moreover, in the case of overseas operations, problems could occur regarding the maintenance and support of equipment if necessary chemicals are not available.
Registration and authorization provisions under REACH may also lead to the disclosure of sensitive and confidential information due to the requirements to submit registration and authorization dossiers. Furthermore, the decision of suppliers to discontinue providing certain substances may lead to increased costs since alternatives for this substance would need to be found which requires extensive testing and could affect the composition and design of the product. Certain substances currently used in military equipment may even be completely removed from the market as their authorization would not be economically viable due to high testing costs. In this case, alternatives would have to be found for the products concerned. The problems and challenges faced by the defense industry in this regard are very similar to those of the aeronautics industry.
At this stage it is difficult to foresee how REACH defense exemptions will affect industry. However, as REACH test data becomes available, Enhesa is keeping close track of these and related regulatory and policy developments to assist clients in managing their compliance risks in the most cost-effective manner.
EU Regulatory Expert