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26 March 2019

The CJEU annuls the authorisation granted by the Commission on the marketing of carcinogens

On 7 March, the Court of Justice of the European Union annulled the authorisation granted by the European Commission to market lead chromates, stating that plenty of alternatives to these carcinogens were available.

The chromates case involves various substances (lead sulfochromate yellow and lead chromate molybdate sulphate red), carcinogenic and reprotoxic compounds of lead and hexachrome. A Canadian company had applied for authorisation to continue marketing these substances. The regulatory body established in the context of REACH, the European Chemicals Agency (ECHA), adopted an opinion claiming that the socio-economic benefits justified the authorisation. This argumentation showed the extent to which the SEAC, the ECHA’s socio-economic analysis committee, gave precedence to company profits over the protection of human health. A recent analysis of SEAC activities has revealed that this argumentation was no exception. Published in February 2019, the report was compiled by ChemSec (International Chemical Secretariat), an NGO promoting the substitution of the most hazardous chemicals.

The substances under consideration are used in paints and varnishes, with one of the main uses being in road markings. In the course of the inquiry conducted by the ECHA, it transpired that the majority of producers were using alternative substances, preventing workers from being exposed to carcinogens. In some countries, the use of lead chromates for this purpose was banned 20 years ago.

Nevertheless, the European Commission granted authorisation to the applicant Canadian company, with 23 of the 28 EU Member States supporting this position.

Sweden called for the annulment of this authorisation, backed by Denmark, Finland and the European Parliament.

The request for annulment was admitted by the CJEU. The ruling is particularly clear in its argumentation in favour of substituting substances of very high concern (SVHCs), stating that the Commission had based its authorisation on information supplied by applicant company.

That same day, the CJEU condemned the European Food Safety Agency (EFSA) for its refusal to disclose key documents upon which the European Union had renewed its authorisation of glyphosate, a pesticide classified by the International Agency for Research on Cancer (IARC) as ‘probably carcinogenic to humans’ (Group 2 A).

Judgement

ChemSec report 

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