ECJ Customs (C-654/22) – AG Opinion – REACH Compliance Requirements for Customs Warehoused Substances

The Advocate General proposes that controlled substances held in customs warehouses should be subject to REACH compliance requirements, including registration. If this opinion is adopted by the Court of Justice of the European Union, it could cause significant disruption to the importation of EU REACH controlled substances. The AG argues that controlled substances under customs warehousing are not exempt from REACH, unlike other customs special regimes explicitly mentioned in the REACH Regulation. However, this interpretation may not align with the objective of the REACH Regulation, which aims to regulate the manufacturing, market placement, and use of controlled substances. The wording of the Dutch version of the regulation suggests the need to differentiate between substances in customs warehousing and substances in temporary storage, free zone, free warehouse, or in transit. It could be argued that all customs regimes ensuring controlled substances are under supervision should be included in Article 2(1)(b) of the regulation. If the AG’s stance is adopted, EU operators handling bonded storage and transshipment of controlled substances may inadvertently face REACH obligations, even for goods that are re-exported unaltered. This is particularly significant for bulk goods where the ultimate EU customer may not be visible, as any EU party involved in the customs warehousing procedure could potentially be considered the responsible REACH importer. The case will be interesting to follow, with hopes that the Court will deviate from the Advocate General’s conclusion due to the serious ramifications it could have.

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