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Endocrine Disrupting Chemical Wars: the Saga Continues: The Court Found the Commission in Failure to Act (and May Need to Strike Back Later)

Published online by Cambridge University Press:  20 January 2017

Apolline J.C. Roger
Apolline J.C. Roger*
Affiliation:
University of Sheffield Law School. May be contacted at [email protected]
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Abstract

Case T-521/14, Kingdom of Sweden v European Commission, Judgment of the General Court (Third Chamber) of 16 December 2015, ECLI:EU:T:2015:976

Case T-521/14 is a new stop on the perilous journey towards the appropriate regulation of endocrine disrupting chemicals. The Biocidal Product Regulation required the Commission to adopt criteria defining endocrine disrupting properties by 13 December 2013; the deadline was not respected. Even though the failure to act was obvious, the Court's reasoning in T-521/14 matters greatly. It exposes a structural weakness in the EU's risk governance system by reminding the Commission that strong private opposition to regulatory action does not justify tampering with the level of environmental or health protection set by the legislator. The now adopted criteria indicate that this lesson was not taken to heart.

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 7 , Issue 3 , September 2016 , pp. 629 - 633
Copyright
Copyright © Cambridge University Press 2016

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References

1 Regulation (EU) No 528/2012 concerning the making available on the market and use of biocidal products, OJ L 167.

2 See Article 5.2 a) to c) BPR.

3 These concerns have been publicised broadly by the publication of Our Stolen Future : Are We Threatening Our Fertility, Intelligence and Survival ? by Theo Colbron, Dianne Dumanoski and John Peterson Myers in 1997. But in 1962 already Rachel Carson observed the endocrine disrupting effects of some chemicals in her bestseller Silent Spring, the book which had a crucial impact on the improvement of chemical regulation.

4 Article 5.3 al.1 BPR see note 1.

5 Article 5.1 d) BPR substances ‘which are identified in accordance with Articles 57(f) and 59(1) of Regulation (EC) No 1907/2006 REACH as having endocrine disrupting properties’.

6 Which includes the substances suspected to have an adverse effect on sexual function, fertility, on development as well as the substances having an impact on or via lactation.

7 Article 5.3 BPR – ‘Pending the adoption of those criteria, active substances that are classified in accordance with Regulation (EC) No 1272/2008 CLP (Classification, labeling and packaging of substances and mixtures) as, or meet the criteria to be classified as, carcinogen category 2

Substances such as those that are classified in accordance with Regulation (EC) No 1272/2008 as, or that meet the criteria to be classified as, toxic for reproduction category 2 and that have toxic effects on the endocrine organs, may be considered as having endocrine-disrupting properties.’

8 Regulation (EC) No 1107/2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC, OJ L 309, Annex II 3.6.5 ‘shall present to the Standing Committee on the Food Chain and Animal Health a draft of the measures to be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 79(4).

9 Who issued a report in 2013 http://publications.jrc.ec.europa.eu/repository/bitstream/JRC79981/lbna25919enn.pdf.

10 Andreas Kortenkamp, Olwenn Martin, Michael Faust, Richard Evans, Rebecca McKinlay, Frances Orton and Erika Rosivatz, Final Report State of the art assessment of endocrine disrupters, 23.12.2011, available on the internet at http://ec.europa.eu/environment/chemicals/endocrine/pdf/sota_edc_final_report.pdf (last accessed on 16.08.2016).

11 See the Parliament Magazine ‘DG Environment explains delegated acts on biocides’ 14 October 2014, available on the internet at https://www.theparliamentmagazine.eu/articles/eu-monitoring/dg-environment-explains-delegated-acts-biocides (last accessed on 16.08.2016).

12 See her thoroughly documented investigation A toxic affair. How the chemical lobby blocked action on hormone disrupting chemicals, May 2015, available on the internet at http://corporateeurope.org/sites/default/files/toxic_lobby_edc.pdf (last accessed on 16.08.2016). See also Delogu, Bernardo, Risk analysis and governance in EU policy making and regulations (Springer International Publishing, 2016), Chapter 4 p. 98–109 CrossRefGoogle Scholar.

13 Case T-521/14, para. 53.

14 Case T-521/14, para. 62. For the full argument, see from para. 53-61.

15 The Tabacco industry strategy, and its impact on current lobbying practices, is brilliantly exposed by Michaels, David, in Doubt is their product (Oxford: Oxford University Press, 2008)Google ScholarPubMed.

16 See for example C-68/11, European Commission v Italian Republic, Judgment of the Court (First Chamber) of 19 December 2012, ECLI:EU:C:2012:815.

17 See Horel's report, note 12.

18 See Horel's report, note 12.

19 Dietrich, et al. ‘Scientifically unfounded precaution drives European Commission's recommendations on EDC regulation, while defying common sense, well- established science and risk assessment principles’ 30(3) ALTEX (2013) 381-5CrossRefGoogle ScholarPubMed. See for a detail examination of the mistakes in that editorial and for a condemnation of the practice altogether : Delogu note 12.

20 See Delogu, note 12, page 108-109.

21 See Horel, and Bergman et al. ‘Commentary in Environmental Health. Science and policy on endocrine disrupters must not be mixed: a reply to a “common sense” intervention by toxicology journal editors’ Environmental Health Journal 27 August 2013 and Gore AC et al. ‘Policy Decisions on Endocrine Disrupters Should Be Based on Science Across Disciplines: A Response to Dietrich et al.’ 154(11) Endocrinology (2013) 3957-60.

22 See Horel page 17 and Case T-512/14 para. 73.

23 Regulation BPR Article 5.2.c).

24 See para. 72.

25 See para. 75-77.

26 Commission, Draft of Commission delegated regulation … setting out scientific criteria for the determination of endocrine disrupting properties pursuant to Regulation (EU) No 528/2012, C(2016) 3752 project.

27 Commission, Draft of Annex to the Regulation … setting out scientific criteria for the determination of endocrine disrupting properties and amending Annex II to Regulation (EC) 1107/2009, C(2016) 3751 project.

28 Julia Schenten and Martin Führ ‘The European Commission proposals and legal requirements concerning the determination of scientific criteria to identify endocrine disruptive properties of active substances’ 16-3 Sofia-Studien 2006 available on the internet at http://www.sofia-darmstadt.de/fileadmin/Dokumente/Studien/2016/Online_Schenten_and_Fuehr_Endocrine_disrupters_.pdf (last accessed on 16.08.2016).

29 European Ombudsman, Decision in case 12/2013/MDC on the practices of the European Commission regarding the authorisation and placing on the market of plant protection products (pesticides), 18.02.2016, available on the internet at http://www.ombudsman.europa.eu/en/cases/decision.faces/en/64069/html.bookmark (last accessed on 16.08.2016).