Who Protects the Only Representative When the Non-EU Client Doesn't Tell the Truth?
Every Only Representative (OR) operating under REACH accepts significant legal responsibility when agreeing to represent a non-EU manufacturer. However, one important question is rarely discussed:
What happens if the non-EU client lies, withholds information, or simply gets it wrong?
The answer surprises many ORs.
The Legal Responsibility Rests with the OR
Article 8 of the REACH Regulation allows a non-EU manufacturer to appoint an Only Representative to fulfil the obligations that would otherwise fall on the importer. Once appointed, the OR assumes the regulatory responsibilities of an importer and becomes the legal entity responsible for compliance with REACH.
This means that, from the regulator's perspective, the OR—not the overseas manufacturer—is responsible for ensuring that the registration is accurate and compliant.
Private contracts between the OR and the non-EU client may allocate commercial responsibility between them, but they do not alter the OR's regulatory obligations under REACH.
"My Client Told Me They Were an SME"
One of the most common assumptions is that an OR can simply rely on the client's declaration.
Unfortunately, this assumption can become very expensive.
If a company incorrectly claims SME status and receives reduced registration fees to which it was not entitled, ECHA may subsequently determine that the declaration was incorrect. The resulting top-up fees and administrative charges are payable by the registrant—the legal entity recorded in the registration—not by the overseas client.
If the non-EU company refuses to reimburse those costs, the OR may have a contractual claim against the client, but the regulator will still pursue the OR.
What If the Client Hides Information?
This is where the real commercial risk begins.
Imagine that the manufacturer:
fails to disclose linked enterprises;
conceals ownership relationships;
understates employee numbers;
omits financial information;
provides incomplete corporate structure details; or
deliberately presents itself as smaller than it actually is.
The OR may submit the declaration in good faith, believing the information to be correct.
Years later, during verification, the regulator may discover the omitted information.
At that point, saying "my client didn't tell me" is unlikely to remove the OR's regulatory responsibility. The OR remains responsible for the registration submitted in its name.
So, What Actually Protects an OR?
Many ORs believe that a well-drafted contract is sufficient protection.
It isn't.
A contract may give the OR the right to recover losses from the client, but it cannot transfer the OR's regulatory obligations to someone outside the EU.
The best protection is to reduce the likelihood of an incorrect declaration before the registration is submitted.
This means carrying out appropriate due diligence rather than relying solely on client declarations.
Depending on the circumstances, that may include:
reviewing ownership structures;
understanding corporate linkages;
verifying employee, turnover, and balance sheet data;
assessing whether partner or linked enterprises exist;
identifying supporting evidence; and
maintaining a documented and defensible assessment file.
If questions are ever raised by the regulator, the OR can demonstrate that its declaration was based on a structured and evidence-based assessment rather than on assumptions.
Due Diligence Is Risk Management
No consultant, lawyer, or OR can completely eliminate regulatory risk.
However, robust due diligence can significantly reduce it.
An OR who asks the right questions, obtains appropriate evidence, and documents the basis of their conclusions is in a far stronger position than one who simply accepts the client's word.
In today's regulatory environment, professional scepticism is not distrust—it is good risk management.
The Future Makes This Even More Important
With the move towards Ex-Ante ("Verify First") SME verification, businesses are expected to demonstrate their eligibility before registrations proceed, rather than addressing questions years later. This increases the importance of having a well-supported, audit-ready assessment from the outset.
Final Thoughts
Being an Only Representative is far more than acting as an administrative contact.
It is a position of legal responsibility.
The greatest risk often does not come from deliberate non-compliance by the OR—it comes from relying on information that later proves to be incomplete or inaccurate.
The question every OR should ask before accepting a client's declaration is not:
"Do I trust my client?"
Instead, it should be:
"Can I demonstrate why I believed this declaration was correct if it is challenged in the future?"
That distinction can mean the difference between a straightforward registration and significant financial and regulatory exposure.
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