The European Chemicals Agency (ECHA), which is the overseer of most key matters related to the REACH Regulation and situated in Helsinki, Finland, announced on 30 April 2009 that a joint REACH enforcement project has begun across Europe. National inspectors are checking pre-registrations (or registrations) and other aspects of compliance, for products shipped to, or circulated within, the EU.

Hong Kong's exporters of chemicals and all kinds of preparations and articles that contain substances that need to be registered under REACH will already have familiarised themselves with the many stringencies of this far-reaching legislation. Businesses were given between 1 June and 1 December 2008 to ensure that they had pre-registered their substances; it was recently reported that around 143,000 substances were pre-registered by 65,000 companies (see: Business Alert-EU, issue 9/2009). Pre-registration was a relatively simple step, but nonetheless a requirement to ensure that trading activities of the substances concerned can continue unhampered, until the last date when full-fledged registration will need to take place. The deadlines for full-fledged registration, depending on the volume (or hazardous nature) of substances per entity, are 30 November 2010, 30 May 2013 and 30 May 2018.

The joint enforcement project, labelled "REACH-EN-FORCE-1", enforces the core principle of REACH, which is, in simple, language, no data, no market. National inspectors from Member State authorities will focus on the so-called phase-in substances (which number over 100,000 existing substances traded in the EU), and check by means of inspections whether companies have submitted a pre-registration (or indeed, a registration) and, where necessary, whether a Safety Data Sheet (SDS) has been supplied. An SDS is required, for example, where a substance or preparation meets the criteria for classification as dangerous.

The project is expected to give a first impression of the level of compliance by manufacturers and importers, including Only Representatives of non-Community manufacturers, with REACH. The ECHA has warned that, at the same time, the capacity of the enforcement authorities to enforce REACH will be increased. Hong Kong's exporters should note that their consignments into the EU may be subjected to spot-checks, and that valid documentation may need to be produced, showing inspectors that, for instance, a valid pre-registration has been made of the substances contained therein. Where Hong Kong manufacturers have appointed Only Representatives to carry out their pre-registrations, documentation in the form of a valid appointment contract or appointment letter may also need to be produced. This will show the authorities that a legal link has been established between the Hong Kong manufacturer of the substances concerned and the Only Representative who has pre-registered those substances.

Hong Kong sellers may also like to be apprised of the sanctions that competent authorities can impose on traders, for breaching the various aspects of the REACH Regulation. As in all other areas of Community law, while penalties are required to be "effective, proportionate and dissuasive", it is up to each Member State to decide what the sanctions should be for breaches on their territory.

In the UK, for example, the penalties for non-compliance are set down in the REACH Enforcement Regulations 2008. Penalties for contravening the REACH provisions could amount to a £5,000 fine and/or up to three months imprisonment following summary conviction; and an unlimited fine and/or up to two years imprisonment following conviction on indictment (a summary offence means a trial without a jury, jury trials being reserved for indictable offences. In practice, a summary offence is a minor offence).

In France, the penalties are set down in the French Environmental Code. Sanctions can amount to €15,000 and a €1,500 penalty per additional day of non-compliance. Criminal sanctions will be applied in cases where persons knowingly provide false or misleading information. These can amount to €75,000 and up to two years imprisonment. In Spain, fines can vary from €100,000 up to €1,200,000 for very serious offences; from €6,000 up to €100,000 for serious offences, and up to €6,000 for minor offences. In Germany the penalties for non-compliance are set out in the REACH Adaptation Act. Contraventions are punishable with up to two years of imprisonment or with a fine. A wrongdoer who acts negligently or commits an administrative offence can be fined up to €100,000.

According to the ECHA, the results of the "REACH-EN-FORCE-1" project will be collected by the end of 2009, its results analysed and a report produced by the end of 2010. The report will likely provide details of the most common breaches and offenders under the REACH Regulation; it will be followed up by another coordinated project, to be launched in 2010.