The Chemicals Prohibition Ordinance

Despite, or perhaps due to, its age and national scope, ChemVerbotsV is far less prominent than the restrictions on substances, mixtures, and/or articles under listed in Annex XVII of the REACH Regulation. Its language remains anchored in German civil law and ­frequently raises questions in day-to-day operations, particularly around terms like “supply,” “acquirer,” and “power of disposal.”Annex XVII of REACH imposes specific bans and restrictions on certain substances, mixtures, and articles within Europe.

These are supplemented by additional provisions for supply originating in Germany. The supply regulations for substances and mixtures listed in Annex 2 account for the bulk of ChemVerbotsV. While supply is not prohibited, certain conditions apply to it. Affected by this are substances and mixtures that, under the CLP Regulation, must be labeled as especially harmful to health, flammable, or otherwise hazardous.

The relevant hazard classes, pictograms, and H-statements are outlined in the tables.The supply of these particularly hazardous substances and mixtures is only allowed under certain conditions. For instance, the supply must be reported to the competent authority. If the supply is intended for private end users, official approval is required. In all cases, a “qualified person” must be appointed—someone who has obtained the necessary qualifications under Section 11 of ChemVerbotsV.

Practical implementation and challenges in the chemical trade

The ordinance is fundamentally concerned with the supply of hazardous substances and mixtures. Supply is defined as either the handover or shipment to the acquirer or recipient. In both legal and everyday parlance, “handover” refers to one person (the supplier) physically handing over an item to another person (the recipient). In actual practice, however, “handing over” mostly refers to transfer from a warehouse to a carrier and subsequently to the recipient’s warehouse.

ChemVerbotsV is not aimed at regulating such scenarios. Consequently, its wording often causes confusion in day-to-day commercial operations. There is no such confusion when a specialty adhesive (marked with a skull and crossbones) is acquired in a DIY store: physical “hand-to-hand” handover takes place. The retail outlet employee (the supplying person) hands the restricted chemical to the customer (the acquirer). The customer thereby gains possession and, at the latest upon payment, acquires power of disposal and ownership over it. This, then, constitutes a handover under ChemVerbotsV.

Accordingly, the relevant requirements—such as a ban on self-service, identity verification, and informing the acquirer about hazards and safety precautions—must be observed. The DIY store safeguards and records the supply through its specially trained staff (qualified person under ChemVerbotsV). The situation is more complex in commercial chemical trading or shipment. Here, it is not uncommon for hazardous substances and mixtures covered by ChemVerbotsV to never enter the retailer’s physical possession; instead, they are shipped from supplier to customer direct. Transport is handled by a logistics company and, in urgent cases, may be outsourced to another service provider. The goods are then received by warehouse staff or, for smaller consignments, by reception or the post room.

Unlike the case for a DIY store, acquisition in the chemical trade occurs through a supply chain in which direct possession changes hands or does not lie with the disposer at all. It would be easy to assume that the agreement between the chemical retailer’s sales representative and the customer is defined as supply and the actual transport as shipment. The sales representative thus becomes the “supplying person” and must ensure compliance with ChemVerbotsV—such as confirming authorised use and informing the acquirer of hazards and safety precautions.

If supply is exclusively to professional customers or resellers, the sales representative need not be qualified, but must receive annual instruction from a qualified person. This person may be external and need not be employed by the company. The chemical retailer does not have direct possession, but does have indirect possession if the supplier arranges transport on his behalf. The logistics provider, while physically handling the goods, does not have power of disposal—a role defined in German law as “possession by proxy” (§ 855 BGB).

The same may apply to further service providers. Warehouse or reception staff, by contrast, do gain direct possession and so become the receiving person. What seems to be clear at first sight in the ordinance often proves to be a stumbling block in the day-to-day chemical trade. Therefore, after the scope of involvement has been clarified, it is crucial to examine and define each actor’s role in order to comply with the requirements of ChemVerbotsV.

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