1. Legal Basis
Exemptions from legislation can only be allowed within the scope of existing exemption privileges. The exemption privilege for EC member states referred to in Article 2 (3) of Regulation 1907/2006 EC (REACH Regulation) stipulates that exemptions from this regulation may be allowed for in specific cases for certain substances, on their own, in a preparation or in an article, where necessary in the interests of defence. For the area of responsibility of the Federal Ministry of Defense (FMOD), the enforcement of the REACH Regulation and the exemption possibilities are covered in Section 24 of the Chemicals Act.
Section 24 (1) of the Chemicals Act reads:
“In the area of responsibility of the Federal Ministry of Defense, the enforcement of the Act, the statutory ordinances based on it and the EC Regulations stated in Section 21 (2), sentence 1 will be the responsibility of the Federal Ministry of Defense and the authorities designated by it.”
Section 24 (2) of the Chemicals Act reads:
“For its area of responsibility, the Federal Ministry of Defense may allow for exemptions from the legal provisions stated in paragraph (1) above in specific cases and for certain substances, preparations or articles, where necessary in the interests of defence and admissible under Community law.”
2. Description of National Procedure
According to §2(3) of the REACH Regulation associated with §24 of the German Chemical Law in the Federal Republic of Germany the Federal Ministry of Defence (BMVg) is authorised to grant an exemption to contractors of the Bundeswehr.
To apply for an exemption, the contractor must address the Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support (BAAINBw) in DE-56073 Koblenz, Ferdinand-Sauerbruch-Straße 1 in written form.
Stakeholders can apply for a defence exemption from the following provisions/articles of the REACH Regulation:
- Article 33 notifications in the supply chain
- Article 66(1) notifications
In principle it is possible for stakeholders to apply for an exemption from the REACH Regulation in its entirety (from all provisions/articles). To do this, all reasons would have to be ticked in the form for applying for the exception. However, this has never happened yet. If it were to happen, such applications would have to be assessed on a case-by-case basis.
The applicant is required to fill a specific formal document/template when applying for a defence exemption. The document is accessible in German version.
There are no charges/fees foreseen to be paid by stakeholders to the Ministry of Defence when applying for a defence exemption.
2.5. Decision-making process
The BAAINBw reviews the application documents w.r.t. completeness and sends them with an extensive safety assessment statement – considering particularly the chemical safety – to the Federal Office of Bundeswehr Infrastructure, Environmental Protection and Services (BAIUDBw) in DE-53123 Bonn, Fontainengraben 200. A confirmation regarding the interests of defence has to be included.
The BAIUDBw reviews all submitted and prepared documents from a technical and legal point of view and submits them to BMVg for final decision.
In case of a positive decision, an official note will be sent to the applicant which confirms the defence exemption for all German enforcement authorities.
2.6. Validity period
In principle, the exemption is bound to a specific defence project. Therefore, the industry can apply for exemption for a certain amount (mass) of the substance. This amount can be used only in this specific project and nowhere else.
The granted defence exemption has a validity period in certain cases, e.g. storage of a certain substance which is necessary for production of ammunition. The industry is allowed to buy, import and store a certain amount of the substance for a certain timeframe. However, this does not include an exemption for the use of the substance. This is done again, via the project-related exemptions.
After an exemption has been granted and during its validity period, the applicant to which the exemption has been granted is not required to (re-)justify the requirements. The exemption is (in principle) project-related and needs no further reporting because the reasons for exemption request should stay the same.
It is possible to provide an extension to the initial validity period of the defence exemption. It is case specific and it is rarely done in Germany, due to project-related exemptions. To this date it has only been possible in case of storage.
3. Description of National Safety and Traceability Measures
The National Safeguard Measures mirror those imposed by REACH (see Introduction part of “Description of National Procedure”).
A Chemical Safety Assessment (CSA) is always required. As it is written in the Framework for Defence Exemptions, the format of the CSA is free, it depends on the substance characteristics and amount. In some cases, even further analysis by different Research Institutes (e.g. Fraunhofer Institutes) might be necessary. Firstly, the competent body in the procurement office checks and evaluates all documents and prepares a detailed statement. Secondly, the Expert Body for Hazardous Materials of the Bundeswehr conducts an evaluation of all documents and prepares a final statement regarding chemical safety issues. The Expert Body is located in a different Federal Office of the Bundeswehr.
No standalone report is needed, as it is needed in the REACH authorisation process.
4. National Bodies Involved
Ministry of Defence and the Federal Offices of the Bundeswehr
5. Where to File an Application
Federal Office of Bundeswehr Equipment, Information Technology and In Service Support
Post Office 300165
6. Conditions/Procedures for Acknowledgment/Recognition of Foreign Defence Exemptions
Foreign defence exemptions are taken into consideration during the national procedure; however, the exemption decision will be based on a separate national assessment.
7. Number of Exemptions Granted
A total of 30 defence exemptions have been granted to date.
8. Contact Info
National PoC: IUD II 4
Phone: 0049 228 12 15466
9. Link to national website
Last Update: 14 November, 2023