Opinion of Advocate General Kokott delivered on 16 November 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:883
• Date: 16 November 2023
• Celex Number: 62022CC0654
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 16 November 2023 (1)

Case C‑654/22

FOD Volksgezondheid, Veiligheid van de voedselketen & Leefmilieu

v

Triferto Belgium NV

(Request for a preliminary ruling from the Rechtbank van eerste aanleg Oost-Vlaanderen Afdeling Gent (Court of First Instance, East Flanders, Ghent Division, Belgium))

(Reference for a preliminary ruling – Regulation (EC) No 1907/2006 – Registration, Evaluation, Authorisation and Restriction of Chemicals – REACH – Scope – Exemption for substances subject to customs supervision – Registration obligation – Importer – Import – Person subject to registration)

I. Introduction

1. Many consumers encounter urea in the form of a diesel engine fluid known as AdBlue. (2) It is used to reduce the release of nitrogen oxides. However, there are many other uses of that substance, for example in agriculture or the pharmaceutical and cosmetics industries. Therefore, over 10 million tonnes are produced in the Union or imported annually.

2. No particular hazards are known. (3) Nevertheless, importers must register that substance with the European Chemicals Agency (ECHA) at import pursuant to the REACH Regulation. (4) In the present preliminary ruling proceedings, it is therefore necessary to clarify whether an undertaking which purchases urea in a third country is to be regarded as an importer, and is, therefore, subject to that obligation, or whether persons other than that purchaser can assume that obligation by organising the import.

II. Legal framework

3. The purpose and fundamental principles of the REACH Regulation are set out in Article 1:

‘1. The purpose of this Regulation is to ensure a high level of protection of human health and the environment, including the promotion of alternative methods for assessment of hazards of substances, as well as the free circulation of substances on the internal market while enhancing competitiveness and innovation.

2. …

3. This Regulation is based on the principle that it is for manufacturers, importers and downstream users to ensure that they manufacture, place on the market or use such substances that do not adversely affect human health or the environment. Its provisions are underpinned by the precautionary principle.’

4. Under Article 2(1)(b) of the REACH Regulation, it is not to apply to ‘substances, on their own, in a preparation or in an article, which are subject to customs supervision, provided that they do not undergo any treatment or processing, and which are in temporary storage, or in a free zone or free warehouse with a view to re-exportation, or in transit’.

5. Recital 10 of the REACH Regulation explains that exemption as follows:

‘Substances under customs supervision which are in temporary storage, in free zones or free warehouses with a view to re-exportation or in transit are not used within the meaning of this Regulation and should therefore be excluded from its scope. …’

6. Article 3(10) to (13) of the REACH Regulation defines various terms:

‘10. Import: means the physical introduction into the customs territory of the Community;

11. Importer: means any natural or legal person established within the Community who is responsible for import;

12. Placing on the market: means supplying or making available, whether in return for payment or free of charge, to a third party. Import shall be deemed to be placing on the market;

13. Downstream user: means any natural or legal person established within the Community, other than the manufacturer or the importer, who uses a substance, either on its own or in a preparation, in the course of his industrial or professional activities. A distributor or a consumer is not a downstream user. A re-importer exempted pursuant to Article 2(7)(c) shall be regarded as a downstream user’.

7. Article 5 of the REACH Regulation sets out the consequences of failure to register:

‘Subject to Articles 6, 7, 21 and 23, substances on their own, in preparations or in articles shall not be manufactured in the Community or placed on the market unless they have been registered in accordance with the relevant provisions of this Title where this is required.’

8. Article 6(1) of the REACH Regulation lays down a registration obligation:

‘Save where this Regulation provides otherwise, any manufacturer or importer of a substance, either on its own or in one or more preparation(s), in quantities of one tonne or more per year shall submit a registration to [ECHA].’

9. The function of that registration obligation is set out in recitals 16, 17 and 19 of the REACH Regulation:

‘(16) This Regulation lays down specific duties and obligations on manufacturers, importers and downstream users of substances on their own, in mixtures and in articles. This Regulation is based on the principle that industry should manufacture, import or use substances or place them on the market with such responsibility and care as may be required to ensure that, under reasonably foreseeable conditions, human health and the environment are not adversely affected.

(17) All available and relevant information on substances on their own, in mixtures and in articles should be collected to assist in identifying hazardous properties, and recommendations about risk management measures should systematically be conveyed through supply chains, as reasonably necessary, to prevent adverse effects on human health and the environment. …

…

(19) Therefore, the registration provisions should require manufacturers and importers to generate data on the substances they manufacture or import, to use these data to assess the risks related to these substances and to develop and recommend appropriate risk management measures. To ensure that they actually meet these obligations, as well as for transparency reasons, registration should require them to submit a dossier containing all this information to [ECHA]. Registered substances should be allowed to circulate on the internal market.’

10. Article 7 of REACH Regulation governs the registration and notification of substances in articles, and Article 8 the appointment of only representatives of a non-EU manufacturer. If such a representative has been appointed, the importers of the manufacturer’s products are to be regarded as downstream users who are not obliged to register.

III. Facts and reference for a preliminary ruling

11. The following facts emerge from the reference for a preliminary ruling and further information provided by the referring court at the request of the Court of Justice.

12. On 3 July 2019, Transvostok Group Limited (probably established in Cyprus) loaded a total of 7 873.167 tonnes of urea onto the vessel MV ‘HC SVEA KIM’ at the port of Kavkaz on the Black Sea coast of Russia on the account of Dreymoor Fertilizers Overseas PTE LTD (established in Singapore) and Belor-Eurofert GmbH (established in Bamberg, Germany). An undertaking in Mary, Turkmenistan, had produced the urea originally.

13. NV Triferto Belgium (established in Ghent, Belgium) (‘Triferto’) ordered a total of 4 000 tonnes of urea CFR Ghent (Incoterms 2010) from Dreymoor on 7 July 2019. Incoterms stands for ‘International Commercial Terms’. One of those terms is CFR, which stands for ‘cost and freight’. It means that the seller bears the freight costs but not the risk of loss of the goods during transport. The place of delivery under that agreement is Ghent.

14. Belor imported the shipment of urea into the European Union on behalf of Dreymoor at a customs warehouse in Ghent on 9 August 2019. There, Belor engaged other undertakings to perform various tasks related to the landing and storage of the shipment. Belor had previously registered the urea with ECHA as an importer within the meaning of Article 6(1) of the REACH Regulation. It also submitted the customs declaration for that substance.

15. After the first purchase and call, Triferto purchased and called for another 700 tonnes on 21 August 2019 and a further 1 176.173 tonnes on 26 August 2019 from that delivery CIF Ghent (Incoterms 2010). CIF stands for ‘cost, insurance and freight’ and means that the seller not only bears the transport costs but also insures the goods.

16. During an audit on 11 February 2020, the Federale Overheidsdienst Volksgezondheid, Veiligheid van de voedselketen en Leefmilieu (Belgian Federal Public Service Health, Food Chain Safety and Environment; ‘the FOD Volksgezondheid’) learnt that Triferto had acquired those quantities of urea from Dreymoor in 2019.

17. There is a contract between Dreymoor and Belor in which Belor confirms that it is responsible for the physical import of urea 46% into the European Union by the vessel MV ‘HC SVEA KIM’ ‘in accordance with the REACH guidelines’.

18. However, the FOD Volksgezondheid takes the view that Triferto, not Belor, should be regarded as the importer within the meaning of Article 6 of the REACH Regulation, in conjunction with Article 3 thereof. Consequently, it should have registered the urea, which it...