Assess European Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) implications in defence, specifically focusing on potential REACH impact on the European Defence Equipment Market (EDEM).
- Identify the impact of REACH on defence sector, develop proposals and implement activities to mitigate such impact
- Build a common understanding of REACH and exchange best practices in the regulation implementation
- Support harmonisation of national policies and procedures regarding granting of REACH defence exemptions
General Background on REACH Regulation
Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) was adopted to improve the protection of human health and the environment from the risks that can be posed by chemicals, while enhancing the competitiveness of the EU chemicals industry.
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”.
Detailed Description of the EDA REACH Project
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 REACH and its defence implications, specifically focusing on the areas of national defence exemptions and their potential impact on the European Defence Equipment Market (EDEM) as well as on building a common understanding of REACH and exchanging best practice.
To this end, the EDA has established a network of national REACH defence experts to discuss important REACH defence related 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.
Furthermore, the EDA is closely interacting and cooperating with the European Commission, the European Chemicals Agency (ECHA) and the European Space Agency (ESA) in order to identify possible synergies on REACH defence aspects, as well as with defence industry.
So far, the main activities carried out within the EDA REACH portfolio are the following:
EDA Code of Conduct (CoC) on REACH Defence Exemptions
Granting REACH 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.
EDA Study on the impact of REACH and CLP chemical regulations on the defence sector
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 main 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.
Ammunition Classification under REACH
Based on the outcome of the Agency’s work conducted in this field since 2014, the EDA Member States and Norway adopted a first version of their Common Position on Ammunition Classification under REACH in 2017, developed with the close support of the Member States’ REACH and ammunition experts at technical level and on the basis of continuous exchange with the European Commission, ECHA and EU defence industry.
The adoption of the Common Position by Member States constituted an important milestone, contributing greatly towards:
- Reducing the risk of misinterpretation of, and exchanging compliance to, the REACH provisions on substances / mixtures or articles;
- Supporting the EDTIB in its efforts to raise awareness on issues pertaining to ammunition classification under REACH;
- Minimising the possibility of potential incorrect classification of ammunition along the REACH provisions on substances / mixtures or articles, and related potential negative impact on the operational effectiveness of Member States’ Armed Forces.
Following the adoption of this first version, it was agreed that EDA would complete the technical work and assess stakeholders’ feedback in parallel, with a view to publishing an updated version. It was concluded in November 2021 with the adoption of the EDA pMS updated Common Position on Ammunition Classification under REACH.
As clearly stated in the document, the Common Position reflects EDA pMS position/views on the classification under REACH of specific (not necessarily all inclusive) ammunition categories and types, used strictly for defence purposes. In this regard, it is highlighted that the position/views reflected in the document are not applicable in any way to products not used for defence purposes that may have similar characteristics/functions.
The EDA has disseminated the Common Position as widely as possible to relevant stakeholders, including the Commission, ECHA and EU defence industry, and intends to assess potential feedback/comments, as basis for further improvement of the document.
EDA REACH Roadmap 2018-2020
Following assessment and prioritisation of an initial large number of proposals for EDA REACH activities tabled previously by Member States, the Commission, EU defence industry and related recommendations of the EDA Study on the Impact of the REACH and CLP European Chemical Regulations on the Defence Sector, on 20 October 2017 the EDA Steering Board endorsed a comprehensive list of EDA REACH activities for years 2018-2020 (EDA REACH Roadmap 2018 – 2020), aiming especially at mitigating the impact of REACH on defence.
The EDA REACH Roadmap 2018-2020 comprises 2 different categories of activities:
- Generic tasks/subtasks, which are conducted in a continuous manner, including administrative tasks, interaction and monitoring/coordinating activities with stakeholders; and
- Specific tasks/subtasks, which have a specific scope/duration and are therefore prioritised with respect to the sequence of implementation, including activities related to the Commission REACH Refit 2017, the EDA Code of Conduct on REACH Defence Exemptions, the EDA Member States’ Common Position on Ammunition Classification under REACH and specific proposals of the EDA Study on the Impact of the REACH and CLP Regulations on the Defence Sector.
Upon its endorsement, the Agency has disseminated the Roadmap as widely as possible to relevant stakeholders and continues to work closely with Member States’ REACH experts (including the EDA REACH Task Force at the technical level), the Commission, ECHA and defence industry for its implementation, which is in full progress.
Interaction with Stakeholders
EDA maintains close interaction and coordination with key stakeholders on REACH defence issues, at EU level: European Commission, European Chemicals Agency and EU defence industry. Being one of the main addressees of the REACH Regulation, industry is a very important stakeholder for EDA REACH activities. The Agency has established, in the previous years, a continuous channel of communication and exchange on REACH defence issues with the ASD REACH & Chemicals Management Working Group, National Defence industry Associations (NDIAs) and individual industries with REACH expertise/activities on specific areas (e.g. ammunition). Finally, acknowledging the common interests and similar challenges faced between defence and space sectors on REACH issues, EDA has established close interaction and cooperation also with European Space Agency, in this area.
EDA Steering Board Decisions
On 12 December 2018, the EDA Steering Board (in R&T Directors’ format), while acknowledging the potential direct or indirect implications of REACH to the EU Ministries of Defence/Armed Forces, due to the risk of obsolescence of REACH-regulated substances that are critical for the sustainment or development of defence capabilities, encouraged participating Member States to consider priority actions as regards innovative R&T activities aiming at substitution of REACH-regulated substances. The Steering Board also tasked the Agency to pursue, in cooperation with participating Member States, the implementation of collaborative innovative R&T activities to mitigate, and if possible minimise the impact of REACH in the defence sector. R&T activities for the progressive substitution of Substances of Very High Concern (SVHCs) in the area of defence, contribute directly and strongly towards the overarching EU objectives for a non-toxic environment and a circular economy, wherein innovation is a key element.
On 21 February 2019, the EDA Steering Board (in National Armament Directors’ format)welcomed the overall progress in the implementation of the EDA REACH Roadmap 2018-2020, and tasked the Agency, in close coordination with Member States and the European Commission, and in consultation with industry, to pursue further implementation of the EDA REACH Roadmap activities and to report back on progress in 2021. In parallel, the Steering Board:
- noted the progress on the harmonisation of REACH defence exemptions at EU-level;
- noted an EDA analysis of the European Commission’s REACH Review with respect to the EDA REACH Study recommendations previously submitted to the European Commission, based on which the majority of the EDA study proposals have been dealt with; and finally
- encouraged Member States to take further actions at national level to harmonise procurement contracts with REACH, on the basis of related recommendations developed by EDA.
EDA Study on the impact of (other than REACH/CLP) European Chemical Regulations on defence
Following-up to the 2016 EDA Study on REACH and CLP the Agency outsourced in 2020 a study to evaluate the impact of the following six pieces of EU legislation on chemicals and waste might have on EU defence capabilities
- Biocidal Products Regulation (BPR)
- Persistent Organic Pollutants Regulation (POP)
- Ozone Regulation regarding ozone depleting substances (ODS)
- Fluorinated Gases Regulation (F-gas)
- Directive on the Restriction of the use of certain Hazardous Substances in electrical and electronic equipment (RoHS)
- Revised EU Waste Framework Directive (WFD)/SCIP Database
The overall aim of the study was to provide detailed information on the impact of the six EU legislations on the defence sector and to propose recommendations on how defence stakeholders, mainly Ministries of Defence (MoDs) and the Armed Forces, could implement these in a more coherent way, in view of mitigating such impact.
A broad consultation was carried out with key stakeholders, including the MoDs of EDA’s participating Member States and Norway (which has an Administrative Agreement in place with the Agency), the European Commission, the European Chemicals Agency (ECHA) as well as EU defence industry stakeholders, including the Aerospace and Defence Industries Association of Europe (ASD) and the National Defence Industry Associations (NDIAs).
Based on impact assessments of the first five of the afore-mentioned pieces of legislation (BPR, POPs, Ozone, F-gas, RoHS), the study’s main conclusion is that, by reducing the availability of products leading to a reduction in performance, reliability, or longevity of defence equipment, those regulations have a significant impact on European defence capabilities during the whole lifecycle of defence equipment (design, manufacturing, in-service use and maintenance, disposal) and therefore on the European Defence Technological and Industrial Base (EDTIB). Moreover, potential defence exemptions (similar to those foreseen under REACH and CLP, if/when foreseen within the legal texts for these legislations), would not guarantee the availability of the chemicals necessary to maintain defence equipment in the long term, the study concludes.
As regard the revised WFD/SCIP database (6th piece of legislation listed above), the study identifies specific impacts on Ministries of Defence from the implementation of the SCIP database in relation to the setup and management of defence exemption processes (where applicable) as well as potential security risks for MoDs in complex scenarios and the possible existence of a SCIP notification duty for MoDs in some Member States consulted.
Based on the outcome of the impact analysis, specific recommendations for EDA and MoDs actions/activities were submitted by the contractor, for further consideration, aiming to mitigate such impact.
EDA will now further assess the study outcome, together with its participating Member States and in consultation with relevant stakeholders. Based on this assessment, specific EDA activities will be identified/initiated to support Member States mitigate the impact of the six pieces of EU chemicals and waste legislation.
EDA Code of Conduct (CoC) on CLP Defence Exemptions
The Regulation (EC) 1272/2008 on Classification, Labelling and Packaging of substances and mixtures (CLP) is fully applicable in all EU Member States, and across all sectors including the defence sector. Granting of defence exemptions under its article 1(4) resides at Member States’ level. However, CLP 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 by preventing an uneven field across procurement in the defence domain. It will also avoid negative impacts on the circulation of substances, mixtures, or certain specific articles across the EU defence market, which is necessary to maintain the operability and inter-operability of the Armed Forces operating on the territories of subscribing Member States.
The EDA Steering Board Decision on REACH/CLP in February 2019 tasked the Agency to explore a harmonised approach on the application of CLP Defence Exemptions between EDA participating Member States, similar to past efforts for harmonisation of REACH Defence Exemptions and the related EDA Code of Conduct adopted in March 2015.
In February 2022, the EDA Code of Conduct on CLP Defence Exemptions was adopted by the EDA participating Member States.
The Code of Conduct on CLP Defence Exemptions sets as common goal that subscribing Member States (sMS) will fully support the objectives of CLP and provide for the highest safety criteria and measures possible when granting CLP defence exemptions, taking into account those criteria and measures imposed by CLP itself. Furthermore, the sMS agree to establish suitable measures and procedures to recognise other sMS’ exemption decisions, on a voluntary basis and in accordance with national law, as well as to make information on national procedures publicly available.
All EDA participating Member States, except France, as well as Norway have decided to subscribe to and therefore participate in the implementation of the Code of Conduct on CLP defence exemptions.
In the next stage, common minimum technical level requirements to be annexed to the Code of Conduct will be developed by EDA with the support of the sMS in order to standardise, as far as reasonably practicable, national defence exemption procedures and to provide an agreed set of minimum standards to ensure safety equivalent to CLP requirements.
EDA Roadmap 2021-2023 for REACH and related EU Chemicals/Waste Regulations
With the previous roadmap 2018-2020 successfully accomplished (some activities are in the final stages of implementation or scheduled to be continued in the future), the participating members of EDA’s REACH project - all Member States plus Norway - have now elaborated a new comprehensive EDA Roadmap 2021–2023 for REACH and related EU Chemicals/Waste Regulations that was recently endorsed by the Agency’s Steering Board.
The new roadmap foresees two different categories of activities:
- generic activities and tasks, which are conducted in a continuous manner, including administrative tasks, interaction, and monitoring/coordinating activities with stakeholders; and
- specific activities and tasks, which have a specific scope/duration and are therefore prioritised with respect to the sequence of implementation, including activities related to the Commission REACH Revision 2022, EDA’s Codes of Conduct on REACH and Classification, Labelling, and Packaging (CLP) Defence Exemptions, the EDA Member States’ Common Position on Ammunition Classification under REACH and specific proposals stemming from the 2020 EDA Study on the Impact (other than REACH and CLP) EU Chemicals/Waste Regulations on the Defence Sector.
Since the adoption of the roadmap, EDA has disseminated it as widely as possible to relevant stakeholders and continues to work closely with Member States’ REACH experts (including the EDA REACH Task Force at the technical level), the European Commission, the European Chemicals Agency ECHA and the defence industry to advance in its practical implementation.