Disrupted Criteria - The criteria to identify endocrine disruptors: implications beyond pesticides and biocides

Since June 2016, the European Commission (the Commission) has proposed four
different versions of the scientific criteria to identify endocrine disrupting chemicals
(EDCs). These criteria are necessary to identify chemicals that will undergo risk
management measures under the Biocides2 and Pesticides3 Regulations.
As of February 2017, these criteria have still not been adopted. Until their adoption,
the Commission will continue to be in breach of the Biocides Regulation, which
required the Commission to act before December 2013, as affirmed by the Court of
Justice of the European Union (CJEU) in 2015.4 This report aims to highlight the
consequences of the Commission’s failure to propose “horizontal” criteria, applicable
beyond pesticides and biocides.
When the Commission started an impact assessment to determine the criteria for
EDCs, it aimed to determine criteria applicable to all sectors.5 After the CJEU
decision however, the Commission decided to propose criteria applicable only to
biocides and pesticides, choosing a “sector-specific” approach rather than a horizontal
one. The Commission then alleged that these criteria would “not have any direct legal
consequence for other areas of EU law.”6 This statement is misleading. As detailed
in this report, even though intended and designed for pesticides and biocides only,
the criteria will have a direct impact on the way EDCs will be identified under other
pieces of EU legislation and thus whether, when, and how they will be regulated.
This report begins with an explanation of how the draft criteria are “sector-specific”
(1). It then assesses the potential impact of the draft criteria on the regulation of
EDCs beyond pesticides and biocides (2). It argues that this sector-specific approach
breaches the principles of “Better Law Making” (3) and runs contrary to the EU
priority objectives for 2020 set by the European Parliament and the Council (4). The
report concludes with recommendations addressed to the Commission, the European
Parliament, and the Council (5).