REACH obligation to register imported chemicals may be assumed by a person other than the buyer

Under the EU’s REACH Regulation 1907/2006, substances must be registered with the European Chemicals Agency before being imported. The duty to register lies with the importer. In practice, the act of ‘importing’ often involves multiples actors, including the seller, the buyer and various intermediaries who move the goods across borders. So, who then should register the substance, who is the ‘importer’, and is it possible to shift the responsibility? In the Triferto case (C-654/22), the EU Court of Justice (ECJ) clarified that a person other than the buyer may present itself as the importer and assume the registration obligation.

The case arose when Triferto, a Belgian wholesaler of fertilisers, purchased urea from Dreymoor, a Singapore-based seller. At Dreymoor’s request, import logistics and REACH registration were handled by Belor, a German distributor, who arranged for the goods to be brought into a customs warehouse in Belgium.

The Belgian authorities, however, fined Triferto, claiming that it—not Belor—was the importer and therefore responsible for registering the substance under REACH. Triferto and Belor disagreed and jointly sought judicial review in the Ghent Court of First Instance, which referred the matter to the ECJ.

Under Article 6(1) of the REACH Regulation, an importer who imports a substance in quantities of one tonne or more per year must register that substance with the European Chemicals Agency (ECHA). Article 3(11) defines an importer as any natural or legal person established within the EU who is responsible for import. Import, in turn, is defined in Article 3(10) as the physical introduction into the EU customs territory. In summary, the obligation to register falls on the person who is responsible for the physical introduction into the EU.

The definition does not resolve cases involving multiple actors. Moreover, the ECJ has acknowledged that more than one party may fit the legal definition. Indeed, both Triferto and Belor had roles that could be construed as importing. However, this does not mean that all the various parties involved must also make a registration. Registration is about gathering information to assist in identifying the hazardous properties of the imported substances. To attain that objective, the Court has noted, it is sufficient that one person fulfills the obligation under Article 6(1) of REACH.

Responsibility for the importing typically rests with the buyer—in this case, Triferto. But, as the Court has noted, that does not preclude another actor in the supply chain from lawfully assuming that duty and fulfilling the registration requirement.

While the Court’s reasoning permits flexibility, it also imposes two constraints.

Firstly, operators cannot shift the importer responsibility to circumvent REACH obligations; for example, by splitting import quantities to avoid the one-tonne-per-year registration threshold.

Secondly, the importer responsibility is not to be designated lightly. The ECJ has noted that, under Article 10 of the REACH Regulation, a substance registration must include a complete dossier and chemical safety report. Article 22(1) states that the party making the registration must update their registration without delay when new information arises. The operators involved must have a legitimate expectation that such a registrant has the necessary knowledge and capacities to meet these requirements. They must also ensure the registrant has actually registered the substance with ECHA. In other words, the buyer cannot simply point to someone else and assume that their registration responsibility is completed.

In this case, Belor had properly assumed the importer’s role, which made the Belgian authorities’ insistence on Triferto’s responsibility incorrect.  

The Court in Triferto has adopted a functional reading of ‘importer’. REACH does not define a single, fixed importer; instead, responsibility may rest with any EU-based actor in the supply chain who takes responsbility over the introduction of the substance into the EU. That person may even be the seller, as the ECJ has explictly noted. This flexible view reflects the fact that, in Triferto, all registration requirements had been met. So the Court probably saw little reason to fixate on Triferto’s role as the buyer.

By declining to categorically assign responsibility to Triferto and instead recognising that another actor (Belor) had taken the lead, the judgment validates private arrangements to allocate compliance duties.

This pragmatic interpretation could reverberate beyond REACH. The EU’s Official Controls Regulation (2017/625), for instance, similarly focuses on the “operator responsible for a consignment entering the Union”. There, too, function may trump formal title.

The ECJ’s Triferto ruling provides welcome clarity on the responsibilities for registering imported chemicals under the REACH Regulation. It confirms that importer responsibility under REACH can be assumed by an EU-based entity other than the buyer, so long as the registration duties are properly discharged. By interpreting the notion of ‘import’ functionally, the judgment has validated private arrangements to allocate compliance duties.

For further information, please contact Bregt Raus (bregt.raus@altius.com) or Bart Junior Bollen (bart.bollen@altius.com).

Written by

• Bregt Raus

  Managing Associate

• Bart Junior Bollen

  Associate