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European Court hearing debates objectives of REACH

Commission, companies argue over need to assess safety of reacted monomers in polymers

The objectives of the REACH Regulation in particular relating to the need to assess the safety of monomers used to make polymers were debated at the European Court of Justice on 27 January.

Lawyers representing the European Commission, Council of Ministers and the four claimants – SPCM, Hercules, CH Erbslöh and Lake Chemicals and Minerals – answered questions from the Judge Rapporteur and the Advocate-General, which were said to be in-depth and technical in nature.

The claimants asked the Court to rule on whether their interpretation of Article 6 (3) is correct – this is that the provision to register monomers should only apply to unreacted monomers in polymers, provided that these are not impurities. Based on its opinion on this issue of interpretation, they further asked the Court to decide on the validity of their claim that “the application of Article 6 (3) to manufacturers or importers of polymers [is] unlawful by reason that the requirements are irrational, discriminatory or disproportionate”.

An 'advisory opinion' from the Advocate General is scheduled to be issued on 10 March. While this will be influential, and at one time was considered to be indicative of the final outcome of the case, lawyers say their experience in recent years suggests that it would not be wise to regard the Advocate General's opinion as necessarily predictive of the Judge's decision. A final judgement is due by the end of the year.

Law firm Field Fisher Waterhouse, which represents SPCM and Hercules, provided Chemical Watch with the following statement on Tuesday's hearing:

“This case involves the REACH provisions related to manufacturers or importers of polymers having to register monomers in polymers, even though the importer is importing the polymer and not the monomer used to make the polymer. The claimants argued that, under Article 6(3) of REACH, importers or manufacturers of polymers should only be required to register the unreacted monomers that remain in the polymer end product, provided that such unreacted monomers are not "impurities." This interpretation of Article 6(3) is supported by the wording of the text and its consequences are consistent with the objectives of REACH, which are to enhance human health and environmental protection.

The institutions, and in particular the European Commission, considered that under Article 6(3) manufacturers or importers of polymers have to register "monomer ingredients", as they were before they entered the polymerisation process. Put differently, the institutions seek to require the registration of the monomers used to make the polymers, even if those monomers themselves are not the product placed on the European market.  

During the oral hearing, the claimants argued against the position put forward by the European Commission, stating that such interpretation has no support in the text of REACH, is inconsistent with the objective of the Regulation (since the information thus obtained by ECHA would be irrelevant for the risks and exposure of the polymers) and would entail absurd consequences. In particular, importers of polymers would be asked to register substances which no longer exist when polymers are imported in Europe, and it is impossible to see how the 1 tonne threshold would apply to such ingredients. Such interpretation may even be taken to mean that REACH has extraterritorial effects.

The Grand Chamber of the ECJ heard the parties' arguments, and the Judge Rapporteur asked the parties several questions. The claimants were asked to clarify why the interpretation put forward by them is consistent with the objectives of REACH, while the interpretation put forward by the institutions is not. The claimants reiterated that the objective of registration under REACH is to obtain information that is relevant for human health and environmental protection, and gathering data on substances used outside the EU before the polymerisation process does not bring any added benefit in that respect.

The Advocate General also asked questions, and in particular asked the European Commission to expand and/or clarify their submission that, if information on "monomer ingredients" is submitted, such information would also comprise the assessment of the polymer as part of the Chemical Safety Report covering the life-cycle of the "monomer ingredients". The European Commission did not address the question directly. The claimants responded that, under the relevant REACH provisions, the life-cycle of a monomer ends upon polymerisation, and the Chemical Safety Assessment performed for the monomer does not address the use of the polymer.

The Advocate General further indicated that an Advisory Opinion would be issued on 10 March 2009.

The claimants consider that the hearing allowed them to present their case and to point to the weaknesses in the case put forward by the institutions, and they are looking forward to receiving the Advocate General opinion as the immediate next step and the final judgment by the end of the year, to allow them to comply with the first December 2010 deadline in full legal certainty.”

• CW 15 January 2009