The EU General Court has ruled that a European Commission decision to allow a company to sell pigments for paints containing lead chromates in the EU was illegal.
In 2016 the EU executive granted a REACH authorisation application for Canadian company Dominion Colour Corporation (DCC) for six uses of lead sulfochromate yellow and lead chromate molybdate sulfate red in the trade bloc. These cover a wide range of applications including industrial coatings, plastics and road markings.
Lead is a neurotoxin that can harm the nervous system and chromium VI is a carcinogen.
The 7 March ruling means that, effective immediately, DCC can no longer sell these pigments on the EU market. The Court dismissed the Commission’s request for the effects of its authorisation decision to be maintained until it can conduct a review and ordered it to pay its own costs and those incurred by Sweden, which brought the case.
In 2017 the country argued that “it was known to the Commission that the use of lead chromates had been almost entirely phased out in several member states and that plenty of alternatives to lead chromates are available”.
The Commission subsequently dismissed the challenge, only to face a second one by four NGOs, which said the EU executive had “clear evidence” showing the availability of alternatives but still granted the authorisation.
The Swedish environment ministry said in this case, it is “obvious” that there are alternatives because lead chromates have been “almost completely phased out” in the EU and they have not been used for 30 years in Sweden.
“The judgment strengthens the principle that particularly hazardous substances should be phased out when there are suitable alternatives. It is of great importance for future licensing decisions in the area of chemicals.”
Lawyer Alice Bernard from NGO ClientEarth said the ruling sends a clear message to the Commission and its supportive national governments that they “must stop trying to bend chemical law to protect industry laggards” and instead put human and environmental health first.
It served as a reminder, she added, that according to the law the burden to prove suitable alternatives are not available lies with the company applying for authorisation.
“Awarding this authorisation on the condition that the company provided the necessary evidence at a later date was not only too lax but illegal,” Ms Bernard said.
It is also a victory for the companies whose investment in safer solutions decades ago was “effectively disadvantaged” by the Commission’s authorisation.
Elise Vitali, chemicals policy officer for the European Environmental Bureau, said this authorisation was a “farce and exposes just how permissive the EU is to conservative business interests” at the expense of health and environment. “With elections on the horizon and populism on the rise, EU chemical controls are badly in need of a fresh lick of paint.”
The case brought by these two NGOs, as well as Chemsec and the International POPs Elimination Network (Ipen), against the Commission for refusing to review the same authorisation is still pending.
The REACH authorisation process has been under the spotlight recently. The report on the second REACH Review from 2018 highlighted authorisation as an area requiring urgent action.
Last month, based on a Commission recommendation, EU member states for the first time voted not to grant an application for authorisation for a specific use of a substance of very high concern (SVHC).
Dominion Colour Corporation did not respond to CW’s request for comment in time for publication.