Under REACH (Art 126) the Member States authorities are responsible for the enforcement of the REACH provisions. In other words, each Member State must determine inter alia the penalties that would apply to the infringement of REACH provisions and must take all measures necessary to ensure that they are implemented. The penalties must be "effective, proportionate and dissuasive". The Member States had to notify their provisions to the European Commission and must also notify any subsequent amendment. Linked below is the report on the Member State penalties, prepared for the Commission by a contractor.
The "Report on penalties applicable for infringements on the provisions of the REACH Regulation in the Member States" (Annexes - Country fiches) presents the facts of the current situation, and does not constitute the view of the European Commission.
The report is based on the contractor's analysis of Member States provisions for REACH enforcement penalties notified to the Commission, and subsequent feedback from Member States’ Competent Authorities. The final report was discussed with Member States at a workshop held by the Commission on 19 February 2010. It is acknowledged that the concept of "penalty" may have a scope and understanding in the different Member States that does not necessarily correspond with the understanding of that term in the contractor's report.
The aim of the report was to provide support to the Commission in creating an objective and exhaustive overview of provisions on penalties applicable for infringement of the provisions of the REACH Regulation in the Member States (including EEA/EFTA States). The report therefore focused on the current provisions set out in Member States’ national law and notified to the Commission on the penalties applicable for infringements of the REACH Regulation. The report itself cannot give a full picture of the enforcement regimes in the Member States, as it did not intend to address how the penalties are implemented in practice. Therefore, the enforcement cultures and approaches towards enforcement could not necessarily be fully reflected, including for example the extent to which maximum available fines would be applied. At present there is only limited REACH enforcement experience available, given that REACH implementation is still at an early stage. The comparison in the report of levels of fines in different Member States should therefore be understood in this context. Nevertheless, the report does provide a useful input into better understanding the different REACH enforcement approaches and legal specificities in the Member States.
Because REACH Article 126 requires that the penalties are "effective, proportionate and dissuasive", and that Member States take all measures necessary to ensure that they are implemented, the Commission will continue to monitor closely the enforcement of REACH in Member States. The above report is one input to this task. Other input will be provided by the Member States' reports on the operation of REACH, as required by Article 117(1), including sections on evaluation and enforcement. In addition, there is the work undertaken by the European Chemicals Agency’s Forum for the Exchange of Information on Enforcement ("the Forum"), in particular the results of the Forum’s harmonised enforcement projects. Such information will provide the Commission with a broader picture as to the effectiveness of enforcement of the REACH Regulation across the Member States.