« ‘Landmark case’ finds EU Commission to have made ‘manifest error of assessment’
The European General Court has annulled part of the mandatory classification of the substance CTPHT, following an appeal by 18 companies.
Its ruling means CTPHT is no longer classified as a substance with category 1 acute and chronic aquatic toxicity, but does not affect its classification as a category carcinogen, 1B mutagen or 1B reprotoxicant, or its inclusion on the REACH candidate list of SVHCs.
CTPHT is the residue from the distillation of high-temperature coal tar, and is a substance of unknown or variable composition, complex reaction products or biological materials (UVCB) because it cannot be fully identified by its chemical composition.
In its 2011 opinion on the proposed classification, Echa’s Risk Assessment Committee agreed with the proposing member state, the Netherlands, that CTPHT’s aquatic toxicity classification could not be based on data obtained in studies, using the water-accommodated fraction approach. Instead, CTPHT should be regarded as a mixture entailing the separate assessment of its constituents.
In 2013, the European Commission adopted a Regulation, stating that CTPHT should be classified as a category 1 acute and chronic aquatic toxicant, 1A carcinogen and 1B mutagen and reprotoxicant.
The 18 companies appealed against the aquatic toxicity classification. One of their arguments was that the Commission had displayed a “manifest error of assessment” in classifying CTPHT on the basis of its constituents.
The court agreed, saying the Commission failed to comply with its obligation to take into consideration all the relevant factors and circumstances, so as to take due account of the proportion in which the 16 constituents are present in CTPHT and their chemical effects.
The Commission must pay its own costs and those of the 18 companies and one supporting company, involved in the case. Echa, which supported the Commission, must also bear its own costs.
Koen Van Maldegem, a partner at Fieldfisher, the law firm which brought the companies’ action, said the precedent value of the judgement “lies in the fact that it is the very first time that the General Court has ruled – very clearly so – that the Commission (and in the process, Echa also) have committed a ‘manifest error of assessment’ in reviewing chemicals.
So far, these authorities have always argued that they enjoy wide discretionary powers when assessing chemicals, which, combined with the (technical) complexity of these cases, almost always resulted in judgements supporting the authorities.
“This is not the case here and, in this respect, it is a landmark case, clearly stating that the Commission and Echa must abide by the rule of law and that their discretion is not without limitations. This is also the reason why the companies have fought this battle. Coal tar chemicals are under scrutiny in the EU, but this cannot mean that a process ‘at will’ can be followed by the authorities.”
Article of Geraint Roberts
General Court judgement : http://curia.europa.eu/juris/document/document.jsf?text=&docid=169267&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=49980
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