In a recent landmark ruling, the European Court of Justice confirmed that the EU illegally allowed dangerous substances for sale in products when there were safer options. Unfortunately, this was not an isolated mistake.
Together with ClientEarth, we wrote to the EU Commission to ask for significant changes in the way they handle authorisations for use of harmful chemicals – a system essential to drive the industry towards safe and sustainable chemistry.
Dear Commissioner Breton,
You will know more than anyone the importance of transforming the chemical industry to achieve the European Green Deal’s goals, as the Commission recognised in the Chemicals Strategy for Sustainability. We, the undersigned NGOs follow REACH implementation closely and are writing to draw your attention to a recent judgment of the Court of Justice that makes it clear DG GROW has misinterpreted key parts of EU chemicals law – when to authorise the use of the most hazardous substances. The authorisation ruled illegal by the Court of Justice is not, unfortunately, a one-off mistake. It is the tip of the iceberg. This case is an illustration of the lenient policy the Commission has been applying in implementing the authorisation process of REACH, from the start. As DG GROW leads this work, we want to make sure you are aware of it, and we call for significant changes in the way authorisations for use of harmful chemicals are handled.
While we note that the Commission has learnt some lessons from this case since the judgment in first instance, by requesting new additional information (‘substitution plans’) to some applicants in ongoing cases, much more needs to be done to avoid replicating the mistakes of the past.
Under the REACH authorisation process, companies can apply for an authorisation to produce, import, sell or use substances of very high concern. These are the most hazardous groups of substances that exist: carcinogens, mutagens, reprotoxicants, and substances that are persistent, bioaccumulative, toxic and hormone disrupting, etc.
“These are the most hazardous groups of substances that exist: carcinogens, mutagens, reprotoxicants, and substances that are persistent, bioaccumulative, toxic and hormone disrupting”
The REACH authorisation system is highly valuable since it has the potential to protect EU citizens and our environment from substances of very high concern as well as drive industry towards safe and sustainable chemistry – in line with the Chemical Strategy for Sustainability. Authorisation also puts the burden of proof on companies to show no suitable alternatives are available and that the societal benefits outweigh the risks. A report from ECHA recently confirmed the authorisation requirement has positive effects on our health and the environment and has advanced substitution of harmful chemicals.
“The authorisation process has not delivered its full potential, mostly because DG GROW has led this work in violation of REACH for the last 10 years”
Unfortunately, the authorisation process has not delivered its full potential, mostly because DG GROW has led this work in violation of REACH for the last 10 years. The symptoms of a structural issue can be seen in Parliamentary resolutions against 6 authorisations, as well as in the decision by Sweden and several NGOs including ChemSec, ClientEarth and EEB to take the Commission to Court in the hope of stopping this practice.
The Court has now confirmed what NGOs, the European Parliament and some Member States have been denouncing. This means the Commission needs to change its approach to respect the ruling of the Court. This will, in the longer run, mean a more efficient protection of EU citizens from harmful chemicals and a more effective signal to the industry to find substitutes for these substances of very high concern and to innovators to find safe and sustainable alternatives. It will bring the EU closer to achieving the ambitions in the Chemical Strategy for Sustainability.
We hope with this letter to have alerted you to the need for a change in the approach to REACH authorisation. We also hope we have convinced you about how important an effective authorisation process is to delivering the Chemical Strategy for Sustainability.
We remain at your disposal if you have any questions.
Head of Public Affairs, ClientEarth
Executive Director, ChemSec