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In accordance with REGULATION (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (hereinafter referred to as REACH Regulation) has entered into force from June 2007, pre-registration was enforced since June 2008. REACH
Regulation is consolidated control law of chemicals which stipulates that all chemicals produced or imported over 1 ton a year in EU shall be registered, evaluated, permitted or restricted, depending on the quantity of production, importation or hazard. REACH Regulation aim for 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(REACH Regulation
Art.1.1.) and this regulation shall apply to the manufacture, placing on the market or use of such substances on their own, in preparations or in articles(Art.1.2.).
As the most advanced regulation related to chemicals that protects human heath and environment at the higher level through consolidated control of chemicals, forms safe distribution system of chemicals in long term and provides the opportunity to enhance competitiveness through environment-friendly management, REACH Regulation will be good example for law related to chemicals to be enacted by other countries later. However, REACH Regulation also has potential to be the representative environmental regulation that plays the role of protective
trade. To check whether REACH Regulation based on precautionary principle may be consistent with the WTO Agreements, it is required to check which treaty is applicable to REACH Regulation first and to judge whether REACH Regulation is in accordance with the obligations of the relevant treaty. It is considered that TBT Agreement is applicable, because the parts related to registration and declaration among REACH Regulation pertains to 'technical regulation' in TBT Agreement and those related to evaluation, permission and restriction pertains to 'conformity assessment procedures'. Further, the parts related to substances used for food and feedingstuffs may be subject to SPS Agreement. In addition, it is questionable whether GATT Agreement is applicable or not. It seems that there is no need to apply GATT Agreement separately, because TBT Agreement and SPS Agreement are applied before GATT Agreement on the basis of 'principle of priority of special law' and TBT Agreement includes relevant regulation of GATT Agreement and sanitary or phytosanitary measure shall be presumed to comform to the provisions of GATT
Agreement, in particular the provisions of Article XX(b) if it agrees with SPS Agreement in Article 2 Section 4. With respect to TBT Agreement, the Article 2.1, 2.2, 2.4, 5.1.1, 5.1.2 and 5.2.1 of TBT Agreement may be questionable and REACH Regulation may violate the Article 2.1, 2.2 and 5.2.1 among them. With respect to SPS Agreement, the Article 2.2 and 5.1 of SPS Agreement may be questionable. Since 'restrictive measure' of Part 3 of REACH Regulation is to be enforced from June 2009 and 'risk assessment' itself does not exist as no report that may be the ground of 'restrictive measure' is yet released, the specific judgment on this matter would be
reserved, just commenting that 'restrictive measure' should be based on 'risk assessment' later.
Like EC-Asbestos judgment, WTO pursues the progressive harmony of 'trade' and 'environment.' For the future of next generation, we are responsible for protecting 'human heath and environment' from risk that will be uncontrollable later such as risk caused by chemicals. However, ‘free trade’ and ‘fair trade’ supposed to be achieved by WTO System shall not be waived and environmental regulation shall not be degraded into means of protective trade.