Clarifications from the Court of Justice of the EU on the identification of “substances of very high concern” under REACH

Some industries have been particularly active in their use of the Court of Justice of the EU (the Court) against the inclusion of new substances or new properties in the candidate list. However, it is worth noting that all court cases brought to annul a decision from the European Chemical Agency (ECHA) on the basis of Article 57 of the REACH Regulation have failed so far.

It emerges from this case law that the Court recognises a broad power to ECHA and Member States to identify substances of very high concern (SVHC) under Article 57 and especially 57(f). The Court still exercises a thorough control of the legality of the decisions and scrutinises in particular the way the supporting evidence is relied upon and the scientific reasoning explained in the support documents. But overall, this case law provides key clarifications that support Member States and ECHA by categorically rejecting many of the industry’s arguments that, if upheld, would have made the identification of SVHCs an excessively heavy procedure for them.