Hitachi, Polynt Take Candidate List Case to Higher Court

« Firms contest decision on respiratory sensitisers HHPA, MHHPA.
Two chemical companies have appealed to the European Court of Justice against an EU General Court judgment, which backed Echa’s decision to add the respiratory sensitisers HHPA and MHHPA to the REACH candidate list.

1410131790980_Image_galleryImage_Female_asthma_sufferer_usBrought on 30 June, but only published in the EU Official Journal on 21 September, the appeals say that in dismissing their application for annulment of Echa’s decision, the General Court breached EU law – and, in particular, made a number of errors in its reasoning and the law’s interpretation.

This, they say, meant the General Court made the following mistakes:

• it made contradictory and erroneous statements, concerning the need – as stated in REACH Article 57(f) – to have regard to risk assessment, when deciding if a substance qualified for the candidate list on the grounds that it gave rise to an “equivalent level of concern” to that for CMRs and PBTs;

• it made contradictory statements, and departed from established case law, on the status and weight of guidance documents in interpreting what is meant by “equivalent level of concern”;

• its “flawed reliance” on REACH Article 60(2) – which says an authorisation must be granted for a substance on Annex XIV if the risks are adequately controlled – led to “insufficient reasoning”; and

• the General Court applied the wrong legal text in dismissing the arguments, relating to worker and consumer exposure, thereby, misapplying Article 57(f).
The appeal has no suspensory effect, which means MHHPA and HHPA remain defined as SVHCs and, thus, on the candidate list for now.

« This case will clarify the critical issue of whether, and on what basis, respiratory sensitisers may be listed as SVHCs under Article 57(f) of REACH, » said Claudio Mereu of law firm Fieldfisher, which is representing the companies.
« The judgment under appeal gave too much latitude to regulatory authorities and hopefully the European Court of Justice will set some boundaries, » he said. »

Article by Geraint Roberts
Appeal announcements in EU Official Journal (pp 24-25):

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