Germany Loses Challenge to Toy Chemical Values
(CN) - Germany must adjust limit values in toys for arsenic, antimony and mercury, but the decision by EU regulators on lead values is flawed, the General Court ruled Wednesday.
The challenge stems from a new toys directive that the EU adopted in 2009, laying down new limit values for heavy metals and other chemical substances present in toys.
Germany voted against the directive because it felt that its national limit values for lead, barium, antimony, arsenic and mercury offered a higher level of protection.
It requested permission to maintain its old values, but the European Commission rejected that request in 2012 with regard to antimony, arsenic and mercury.
As for lead and barium, the commission said Germany would have to change its limit values after July 21, 2013.
Germany sued to have that decision annulled, and the General Court let the country maintain the five limit values in question as the case advanced.
In mostly confirming the commission's decision Wednesday, the court said Germany failed to show that its "limit values, which correspond to the old EU standard, ensure a higher level of protection than the new European limit values."
The decision is not available in English.
In the new directive for arsenic, antimony and mercury, there is consideration of "migration limits, the risk to health being regarded as linked to the quantity of a given harmful substance that may be released by a toy before being absorbed by a child," the court said in a statement.
"In addition, that directive lays down three different migration limit values, defined by reference to the type of material present in the toy (namely, dry, brittle, powder-like or pliable material, liquid or sticky material, and scraped-off material)," the court continued (parentheses in original). "The German limit values are, for their part, expressed in terms of bioavailability. They define the maximum permissible quantity of a chemical substance which may, as a result of the use of the toys, be absorbed and be available for biological processes in the human body."
The court also noted that Germany's "limit values are applicable to all types of toy, irrespective of the consistency of the material of the toy in question."
But the commission's data makes clear "that, for liquid or sticky material and for dry, brittle, powder-like or pliable material, the German limit values, converted into migration limit values on the basis of the EN 71-3 standard, are significantly higher than those in the new directive, while the migration limit values laid down in that directive for scraped-off material are higher than those that result from the conversion of the bioavailability limit values laid down in the notified national provisions."
"Germany cannot claim, therefore, that the new directive authorises higher migration of harmful substances than that permitted in Germany, that children are accordingly more exposed to those substances and that this fact 'on its own' demonstrates that Germany has credibly established that its limit values ensure a higher level of protection than the new directive," the statement continues. "The General Court observes, in addition, that scraped-off material is less readily accessible by a child than dry or liquid material."
Since the German limit values do not distinguish between the consistency of the materials of which a toy is composed, "the Commission cannot be criticised for having rejected" the country's request, according to the ruling.
In annulling the commission's decision with regard to lead, however, the court took issue with the "internal contraction" caused by the different July 2013 deadlines.
"The contested decision amounts, in terms of its practical effect, to a negative decision, even though the commission found that the conditions for approving the continued application of the national limit values for lead were satisfied," the court said.
Germany withdrew its challenge to the barium issue, the court noted.