Environmentalists Score Dual Wins at EU High Court

Both cases involve EU legislation known as REACH, which regulates the production and use of chemicals throughout the bloc.

The European Court of Justice in Luxembourg. (Courthouse News photo/Molly Quell)

LUXEMBOURG (CN) — In two separate cases, the European Union’s top court found Thursday that the bloc has been too lax in allowing the commercial use of dangerous chemicals. 

In one case, the European Court of Justice ruled in favor of Sweden, which had been fighting against allowing lead in outdoor paint. In the other, a magistrate found that the court should overturn a ruling upholding a decision to allow the use of a plastic softener linked to infertility. 

Both cases involve a 2006 law called Registration, Evaluation, Authorization and Restriction of Chemicals, or REACH, which regulates the use of dangerous chemicals in the 27-member political and economic union. 

Sweden opposed a move to allow a Canadian company to use lead sulfochromate yellow and lead chromate molybdate sulfate red for outdoor use on bridges and road signs. In hearings before the European Commission, the EU’s executive body, Dominion Colour Corporation told regulators that, although these chemicals had been banned in some EU countries for more than 20 years, there were no viable alternatives. The chemicals, which experts say interfere with the brain development of children and cause lung cancer, were approved in 2016. 

The Nordic country then filed a complaint with the Court of Justice, but the decision to allow the chemicals was upheld by the lower court, the European General Court, in 2019.

On appeal, the Court of Justice’s First Chamber sided with Sweden on Thursday.

“Article 60(4) of the REACH regulation does not allow the Commission to authorize the use of a substance of very high concern if another suitable substance can be substituted for it. Consequently, the Commission cannot grant such authorization before having duly ascertained that there is no available alternative,” the five-judge panel wrote. 

The decision is likely to have a ripple effect on the approval process for other chemicals.

Frida Hök of the International Chemical Secretariat, a Swedish organization that advocates for stricter controls on hazardous chemicals, applauded the ruling.   

“This ruling is a turning point in the EU’s approach to chemicals authorization. Until now, the EU Commission together with national governments had been extremely permissive, assuming that if a company applies for authorization, it is because it does not have a suitable alternative – but this has been proven time and time again to not be true,” Hök said in a statement.  

Hök’s organization, together with environmental groups, filed a separate complaint about the paint authorization in 2017 that is still pending before the Luxembourg-based court.  

One of the environmental groups who joined that complaint was ClientEarth, an environmental law charity that was the plaintiff in another opinion Thursday from a court magistrate about the use of the chemical DEHP in recycled PVC.

In 2016, the commission gave permission to waste recycling companies VinyLoop Ferrera, Stena Recycling and Plastic Planet to use the chemical softener to make recycled plastic for everything from shoe soles to IV lines more flexible. 

ClientEarth opposed the authorization and asked the commission to revisit the decisions. When it refused, the group filed a complaint with the Court of Justice.

The General Court rejected the case in 2019. ClientEarth appealed and Advocate General Juliane Kokott said in a nonbinding advisory opinion Thursday that the lower court’s decision should be overturned. 

“The judgment under appeal is vitiated by an error in law because it permits the endocrine disrupting properties of DEHP not to be taken into account in the balancing exercise under Article 60(4) of the REACH regulation. That error forms the basis for the rejection of the form of order sought, with the result that the judgment in its entirety must be set aside,” Kokott wrote. 

Exposure to DEHP is linked to male infertility and birth defects. While the EU considered other health risks, it didn’t consider the endocrine issues.

Magistrate opinions are nonbinding but final rulings following their legal reasons in about 80% of cases. 

More than 600 lawmakers voted in favor of a nonbinding resolution at the European Parliament opposing DEHP authorization.

“It is not acceptable to tolerate potentially numerous cases of male infertility simply to allow soft PVC recyclers and downstream users to save costs in the production of low-value articles so as to compete with low-quality imports,” the 2015 resolution states. 

London-based ClientEarth is no stranger to the Luxembourg-court. The group was behind a 2014 push to force the United Kingdom to meet air quality targets and lost a 2020 case seeking access to EU trade documents. 

The lead paint authorization will return to the EU for further consideration while a final ruling on the DEHP case is expected later this year. 

%d bloggers like this: