Chemical Watch Forum

This is complex!

I think that even ECHA guidance says that it often requires case by case review. When looking at legal definitions, note the following:

The term ‘physical introduction’ gives notion that it is a company physically receiving a product. However, the ‘customs territory of the Community’ has a wider connotation than the physical territory of any given Member State, country or principality. Moreover, the definition of importer introduces the term ‘responsible’, which extends beyond a physical act of receiving a good.

So I think you must evaluate:

- company issuing the purchase order
- company paying for the goods
- company paying VAT (and duty) on the goods
- company receiving the goods

And remember that customs clearance and transport are outside the scope of REACH and CLP.

A Chemical Watch reader has asked us to point out the ECHA FAQ, with particular attention to the penultimate paragraph:

3.4 Is the importer always to be considered the same legal entity as the consignee stated on the simplified administrative document (SAD) used by the customs authorities? Does this imply that the consignee is considered to be responsible for registration?

No. Article 3(11) of the REACH Regulation states that the importer is the natural or legal person established within the Community who is responsible for import, i.e. the physical introduction (of the goods) into the customs territory of the Community (Article 3(10) of the REACH Regulation). As stated in section 1.5.3.3 of the Guidance on Registration the responsibility for import depends on many factors such as who orders, who pays, who is dealing with the customs formalities, but these might not be conclusive on their own.

In many instances the ultimate receiver of the goods (the consignee) will also be the legal entity that is responsible for the import. However this is not always the case. If for example company A (established in one EEA country) orders goods from company B (established in another EEA country) who acts as a distributor, company A probably does not know where the goods originate. Company B may choose to order the goods from either an EEA-manufacturer or from a non-EEA manufacturer. In case company B chooses to order from a non-EEA manufacturer (company C) the goods may be delivered directly from company C to company A in order to save on transportation costs. Because of this company A will be stated as the consignee on the SAD form and customs handling will take place in company A's country. Payment for the goods is, however, settled between companies A and B. Also note that in the present example company B is not a “sales agency” as described in section 1.5.3.3 the Guidance on Registration, as the “sales agency” does not choose the manufacturer from which to order the goods.

Because the decision whether to order goods from an EEA or non-EEA manufacturer lies with company B, this company (and not company A) should be considered the legal entity responsible for the physical introduction of the goods into the customs territory of the Community, while company A is a downstream user. The registration obligation consequently would lie with company B. Company A on the other hand will have to be able prove through documentation to the enforcement authorities that it is a downstream user, for example by showing that the order was placed to company B.

In addition, it should be noted that when interpreting the term "importer" according to the REACH Regulation, it is not possible to fall back upon the Community Customs Code (Regulation (EEC) No. 2913/92) or the "INCOTERMS".

The importer has nothing to do with action that it does not involve. I am looking forward to watching the correct answer to the question.

Bat New Materials( Lithium carbonate) www.batchem.com