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Media reaction: 25 February 2021
The European Court of Justice confirmed today that the EU illegally allowed dangerous substances for sale in paints when there were safer options – setting a precedent that tightens the screw on companies’ use of toxic chemicals in the EU.
Under EU law, the European Commission and Member States can authorise the use of a harmful chemical when there is no safer alternative available and when the societal benefits outweigh the risk.
The judgment today calls for a structural change in the way that the European Chemicals Agency and the Commission assess whether to allow the use of particularly dangerous chemicals in products and manufacturing processes in the EU.
The decision was reached in a case brought by the Swedish government about lead chromate pigments – highly hazardous substances used in paints for road markings, metal paints and industrial plastics.
Lead exposure can damage children’s brain development and harm the nervous system while chromium VI can cause lung tumours in people and animals.
The Commission had authorised a Canadian company to sell red and yellow pigments containing these substances of very high concern in the EU. The company claimed a lack of suitable alternatives.
But Sweden took legal action, arguing that the country had not used such paints for the last 30 years, meaning that safer substances were demonstrably available and commercially viable.
ClientEarth lawyer Alice Bernard said: “This is a great victory which will have big ramifications for the environment and public health. It means the European Commission and EU States have to fundamentally change the way they approve the use of such dangerous chemicals. When companies claim the absence of suitable alternatives, EU bodies can’t automatically take their word for it.”
Dr. Sara Brosché of the International Pollutants Elimination Network (IPEN) said: “Lead paint is still a major source of childhood and occupational lead exposure globally, and there is a strong momentum around the world to ban the use of lead pigments in all types of paint. We are glad to see this ruling from the European Court of Justice, which sends a strong signal that safer alternatives are available and cost-effective transition away from lead paint is both possible and feasible. The verdict also means that the EU will no longer be a source of lead paint for other countries but instead a positive force for the global movement away from lead paint."
Frida Hök of the International Chemical Secretariat (ChemSec) said:“This ruling is a turning point in the EU’s approach to chemicals authorisation. Until now, the EU Commission together with national governments had been extremely permissive, assuming that if a company applies for authorisation, it is because it does not have a suitable alternative – but this has been proven time and time again to not be true. Alternatives do exist, both for lead chromates as well as for many other products, and major companies are using them. Those claiming that this new direction in EU chemicals legislation will hurt industry are wrong. Instead, this judgment is a massive boost to those businesses who already invested in safer products.”
Elise Vitali of the European Environmental Bureau (EEB) said: "The authorisation process for chemicals in the EU has sadly become a mere toll road – discouraging companies from investing in safer alternatives. This ruling makes it clear that changes in the Commission’s practice are absolutely necessary, particularly in DG GROW, in order to ensure a high level of protection for human health and the environment.”
In parallel, ClientEarth, IPEN, ChemSec and EEB have brought a different case regarding the same controversial authorisation. The case is still pending.
In 2016, ClientEarth, IPEN, ChemSec and EEB requested the European Commission to reconsider an authorisation allowing a Canadian company to sell lead chromates. The European Commission refused to review the authorisation, forcing the coalition to bring the case before the EU courts in 2017. In the meantime, the Kingdom of Sweden also challenged the legality of this authorisation.
In March 2019, the General Court (first level of the Court of Justice of the EU) ruled in favour of the Swedish Government, revoking the authorisation under REACH of lead chromates and deeming it illegal. The European Commission appealed the judgment – today’s ruling is the result of the appeal procedure. For the first time, the higher level of the Court of Justice looked at the legality of an authorisation and more specifically on how to assess the availability of safer alternatives.
In related news, on 23 February, the European Parliament’s legal affairs committee announced it would take legal action against the European Commission’s decision to allow a group of companies to continue using chromium trioxide, a carcinogenic chemical.
Alice Bernard is a French lawyer (juriste).