No law is 100 percent enforceable. There has always, and will always be cases where breaking the law is not punished.
But this doesn’t mean that the crimes should be tolerated.
Recently, the Commission put forward an idea that ECHA’s Enforcement Forum should be tasked with considering so-called enforceability of new legislation.
This initiative seemed to be, at least in part, an attempt to please several large industry associations that recently demanded, in a joint statement, that all new restrictions under REACH should be 100 percent enforceable before being adopted. The demand is, of course, nothing but a dream – and this is why.
No law is 100 percent enforceable. There has always, and will always be cases where breaking the law is not punished. This fact does, however, not mean that the crimes should be tolerated.
To be blunt: only because you can get away with speeding, does not mean breaking the speed limits should be permitted. The idea that new restrictions should not be implemented unless they are 100 percent enforceable is therefore not very constructive, and it seems more like yet another attempt at putting a spoke in the wheel of the EU Green Deal and the Chemical Strategy for Sustainability.
A law does not derive its legitimacy solely from whether or not it is enforceable. The legitimacy rather stems from a common understanding of what is morally good.
The chemical legislation is based on scientific knowledge about chemicals, as well as the notion that both human beings and our environment should be protected from that which is harmful. These are the principles that lay at the core of creating new chemical legislation, and they should not be contested – be it with arguments of enforceability or anything else.
“It would be a fiasco if chemical producers, compliant with current legislation, would lose market shares to companies that are not compliant”
It is true that competent authorities in the different European member states need additional resources to enforce the chemical legislation – in this we agree with the industry – and it is clearly stated in the Chemical Strategy for Sustainability that enforcement must be more efficient.
It is also true that it would be a fiasco if chemical producers, compliant with current legislation, would lose market shares to companies that are not compliant. We should not let our guard down, more can be done on all fronts. But the lack of resources for enforcement is not a valid argument to stop restricting the use of hazardous substances.
The process of updating both the CLP and the REACH regulation is at a pivotal moment. Already today there are ample checks in the legislative process, evaluating the enforceability of new legislation. There is no need to tasking ECHA’s Enforcement Forum with additional evaluation of enforceability. In fact, it would be contrary to the aim for “better regulation” to add one more step in the process.
It is important to recognise that the idea of 100 percent enforceability is nothing but a dream, and it risks misdirecting policymakers and weakening the resolve which is needed to make the necessary reforms of the chemical legislation.