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Infringements of REACH provisions

By Gilbert Price,2014-06-27 10:41
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Infringements of REACH provisions ...

Infringements of REACH provisions

    Below are enumerated the possebilities form The Inspectorate for Housing, Spatial Planning and the Environment (VI), the Food and Consumer Product Safety Authority (VWA) and the Labour

    Inspectorate (AI) to take administrative and penal sanctions.

1. Administrative sanctions

    The range of instruments available under administrative law is applied with the aim of remedying the infringement or restoring the lawful situation, with the aim of avoiding a repeat of the infringement. The law provides for this by allowing the imposition of an order for incremental penalty payments and the enforcement of an administrative order (with penalties).

    The Inspectorate for Housing, Spatial Planning and the Environment (VI), the Food and Consumer Product Safety Authority (VWA) and the Labour Inspectorate (AI) supervise compliance with REACH under administrative law.

    Under Section 18.2, paragraph 1 (a) and Section 18.2b, paragraphs 1 and 2 of the Environmental Management Act (Wet milieubeheer (Wm)), the power to enforce paragraph 9.2 of the Environmental

    Management Act and REACH under administrative law is vested solely in the competent licensing authority or the Minister of Housing, Spatial Planning and the Environment (VROM).

    If an infringement is discovered, the Minister can enforce an administrative order under Section 18.7 of the Environmental Management Act or, alternatively, can impose an order for incremental penalty payments under Section 5:32 of the General Administrative Law Act (Awb) on the infringer.

Order for incremental penalty payments

    If it is not evidently against the interest of the environment to do so, for example because immediate action is not an absolute requirement, an order for incremental penalty payments can be imposed on the infringer instead of enforcement of an administrative order (with penalties). This order can be imposed per infringement or per unit of time. The object of a penalty is to remedy the infringement or to avoid a further infringement or a repeat of the infringement. The foregoing is provided for in Section 5:32 of the General Administrative Law Act. Through the imposition of a penalty it is possible, in principle, to enforce the same actions as through the enforcement of an administrative order. The infringer must pay if he refuses to remedy the infringement and/or the consequences thereof. When imposing a penalty, the following requirements must always be met:

    ? The penalty must always be instead of (and not alongside!) an administrative order (with penalties)

    (so with clear instructions).

    ? The penalty must be related to a unit of time or infringement (permanent infringements only per

    unit of time).

    ? A maximum amount which can be forfeited must be indicated.

    NB: the amount of the penalty depends on the damaged interests and the intended effect of the penalty, in other words, account must be taken of the seriousness of the infringement and the financial gain obtained by the infringer through committing the infringement. The penalty must eliminate this gain.

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    An incremental penalty payment cannot be a fine for infringements which have previously been committed, but must always have as its objective:

    ? the discontinuation and/or remedying of a current infringement, or;

    ? the prevention of future infringements which are identical to the infringement which has been

    discovered (e.g. illegal transport).

    In exceptional cases, an incremental penalty payment can also be imposed as a preventive measure where there are concrete indications that an infringement will be committed, in other words before the infringement has actually taken place.

    If the incremental penalty payment does not work (in the event that the infringement is not remedied or the infringement is repeated), the order imposing an incremental penalty payment can be withdrawn and the amount of the penalty can be increased by a new order, or an administrative order (with penalties) can be enforced.

    Naturally, the total of any incremental penalty payments previously forfeited (under the old order) must still be collected. Care must also be taken to ensure that all penal and administrative measures are fully coordinated.

Enforcement of an administrative order (with penalties)

    To enforce an administrative order (with penalties) means to cause the removal, prevention, restoration to the previous condition or performance of actions which have been taken or omitted in contravention of the rules, at the expense of the infringer. Enforcement of an administrative order implies the power to take measures which will prevent any further damage to the environment, or which will ensure the consequences of any damage are limited as far as possible or are remedied.

    The order must set out a reasonable period within which the infringer, or the party holding the rights to the item or property which is the subject of the infringement, or another party involved, is given the opportunity to take steps to prevent action against it. This is known as the compliance period. In urgent cases the compliance period will naturally be kept as short as possible. If the item or property has not been remedied within the compliance period set then the competent authority will have to take measures itself to ensure this is done.

    The competent authority may recover the costs of enforcing the administrative order from the infringer.

Administrative fine

    To the extent that substances, preparations and articles can be deemed “goods” or “commodities” within the meaning of the Commodities Act (Warenwet), the Marketing and Use Directive is

    implemented pursuant to the Commodities Act in the General Chemical Product Safety (Commodities Act)Decree (Warenbesluit algemene chemische productveiligheid), the Azo Dyes (Commodities Act)

    Decree (Warenwetbesluit azo-kleurstoffen), the Textiles (Commodities Act) Decree

    (Textielartikelenbesluit) and the Toys (Commodities Act) Decree (Warenwetbesluit speelgoed).

    Section 9.3.3. paragraph 5 of the Environmental Management Act stipulates that the preceding paragraphs of Section 9.3.3. of the Environmental Management Act do not apply in so far as the criminalisation of infringements of provisions of REACH is already provided for by or under the Commodities Act. This is due to the fact that enforcement under the Commodities Act is carried out differently than under the Environmental Management Act, and it is preferable that harmonisation be sought with the system of enforcement under this Act for goods or commodities within the meaning of the Commodities Act. The Food and Consumer Product Safety Authority (VWA) can impose an administrative fine pursuant to this system.

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With GHS being implemented in the Environmental Management Act, an assessment is currently

    being carried out to determine whether or not the administrative fine can be an appropriate and

    effective measure.

2. Penal sanctions

    Officials of the Inspectorate for Housing, Spatial Planning and the Environment (VI), the Food and

    Consumer Product Safety Authority (VWA) and the Labour Inspectorate (AI) are authorised to

    investigate infringements of the provisions of REACH and to make an official report in this regard.

The Environmental Management Act and REACH

    Section 9.3.3., paragraphs 1 and 2 state that it is prohibited to act contrary to certain provisions of

    REACH.

    Section 9.3.3., paragraph 1 lists the so-called serious infringements and Section 9.3.3., paragraph 2

    lists the so-called minor infringements.

    Any action taken contrary to these Sections is an environmental offence under the Economic Offences

    Act (WED).

Economic Offences Act (WED)

    The Economic Offences Act stipulates the maximum penalty for environmental offences. Since 1994,

    the maximum term of imprisonment for grave or serious environmental offences has been six years,

    and legal entities can be handed a fine of no more than Euro 670,000 per offence.

    The environmental offences are listed in alphabetical order in Section 1a of the Economic Offences

    Act. Those of REACH (Environmental Management Act) Section 9.3.3., paragraph 1, are listed in

    Section 1a of the Economic Offences Act, under 1º, and those of Section 9.3.3., paragraph 2, are

    listed in Section 1a of the Economic Offences Act, under 2º.

This can be represented in the following chart:

    Category Offence or Term of Fine in Statutory time

    infringement imprisonment/period of category limit in years

    detention in years

     O 6 5 12

     I 1 4 2

     O 2 4 6

     I 0.5 4 2

A person may only be held in (pre-trial) detention where there is a suspicion of an offence, or crime,

    from the first category.

For natural persons, a fine of the fifth category is subject to a maximum of ?74,000; and a fine of the

    fourth category is subject to a maximum of ?18,500.

    Under the Dutch Penal Code, legal entities can be punished with a fine from the next category higher.

    In this way, a fine from the sixth category, for example, is subject to a maximum of ?740,000.

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    Section 2 of the Economic Offences Act states for each category which economic offences from Section 1 and Section 1a are deemed offences or crimes (intentionally committed) and which offences are deemed infringements.

    The economic offences referred to in Section 1, under 1? and 2?, and Section 1a, under 1? and 2?, are

    crimes, to the extent that they have been intentionally committed; where these economic offences are not deemed to be crimes, they are infringements.

    Section 6 of the Economic Offences Act summarises the main sentences or penalties (imprisonment, (pre-trial) detention and fine) which can be imposed. Any unlawfully obtained benefit can also be confiscated; if the benefit obtained is greater than one quarter of the maximum fine which can be imposed, a fine can be imposed from the next category higher. Provision is also made for confiscation, as referred to in Section 36 (e) of the Dutch Penal Code (such as, for example, removal from the channels of commerce).

Section 7 lists the additional penalties which are available:

    ? Temporary halting or suspension of all or part of the enterprise.

    ? Confiscation of the objects referred to in Section 33a of the Dutch Penal Code. ? Deprivation of the rights referred to in Section 28, paragraph 1 of the Dutch Penal Code. ? Denial of certain benefits.

    ? Publication of the court judgment.

    Additionally, there are several enforcement measures which can be imposed pursuant to Section 8 of the Economic Offences Act:

    ? Removal from the channels of commerce of objects which have been seized. ? Payment to the State of an amount of money serving as confiscation of the estimated unlawfully

    obtained (financial) benefit.

    ? Administration order against the company of the convicted person.

    ? Obligation to do or perform that which has been unlawfully omitted, cancellation of that which has

    been unlawfully performed, and performance of acts in order to make good any unlawful

    measures taken, all at the expense of the convicted person.

YBU 03-06-08

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