The General Court of the European Union on Wednesday (16 December) backed Sweden, saying that the European Commission breached EU law by failing to publish a definition for hormone-affecting chemicals or ‘endocrine disrupters’.
The Commission was obliged under the EU’s biocides regulation to adopt scientific criteria for the identification of these chemicals by 13 December 2013. However, in July 2013, a draft proposal was blocked by the Commission’s former Secretary-General, Catherine Day, who wanted the executive to make an impact analysis first.
In May 2014, Lena Ek, who was then Sweden’s environment minister, decided to sue the European Commission over this delay. Sweden’s stance was eventually backed by both the Council and the Parliament. Ek told EurActiv in an interview back then that if the Commission did not act, Sweden would go against the EU’s executive ban all endocrine disruptors.
The General Court of Justice said in its ruling that the impact analysis proposed by the executive and Day was unnecessary.
“With regard to the alleged necessity, referred to by the Commission, of carrying out an impact analysis with a view to evaluating the effects of the various possible solutions, the General Court finds that that there is no provision of the regulation which requires such an impact analysis,” the Court said.
Some chemicals that are used to soften plastics and can be found in everyday products such as rubber boots and bath curtains have come under suspicion of harmfully affecting the human endocrine system. Rising levels of cancers and fertility problems have attracted scientists’ attention to endocrine disrupting chemicals, with some calling for strict regulation of the substances, in line with the precautionary principle.
“This is an unprecedented decision by the European Courts. It ruled that the Commission is illegally delaying a crucial decision to protect EU citizens and the environment,” said Vito Buonsante, legal advisor for ClientEarth on toxic chemicals.
“The Commission has been assessing the economic impact protecting our health and our environment. The process is biased and there is no clear idea of when it will end. It must stop immediately. The Commission needs to start protecting the public, not the chemicals industry,” he added.
PAN Europe, an anti-pesticides NGO, said in a statement that the Court’s ruling “might be the only democratic step we have seen since the Commission missed the deadline to present the criteria in December 2013”.
The former European Commissioner for Environment at the time, Janez Poto?nik, who is now Chair of UNEP’s International Resource Panel, told EurActiv, “The problem of endocrine disruptors is a very serious one which I and my services at the time tried to address based on the precautionary principle and scientific advice. Already in 2013, my services were ready to proceed both on criteria for the regulations and a revised strategy on endocrine disrupting chemicals.”
Poto?nik added that “unfortunately” it was impossible to reach agreement within the Commission for our proposed course of action and this led to the current situation where the Commission was brought before the Court by Sweden, supported by several other member states as well as by the parliament and council. The judgement of the Court was the expected outcome and I regret that it was ever necessary for the Court to decide that the Commission had failed to fulfill its obligations.
“Unfortunately, this is another case which illustrates the systemic failures of governments to integrate policies. While I was the Commission’s environment commissioner I pointed many times to the difficulties faced by enivornment ministers around the world in pursuing courses of action which were needed but which were deemed by others to be too burdensome or to threaten the competitiveness of certain industries. Like the recent controversy involving Volkswagen, it seems that action is only taken when problems become too big to ignore,” he said.
Commenting on the judgement, Green MEP and public health spokesperson Michèle Rivasi said:
"Today's ruling confirms that the Commission clearly failed in its legal duty. Endocrine disrupters are a global threat to health that urgently needs to be tackled and, to do so, proper criteria are needed. Proper criteria for endocrine disruptors were ready for publication in the summer of 2013. However, former secretary of the Commission Catherine Day intervened to block the proposal following heavy industry lobbying, ordering an impact assessment as demanded by the industry. It does not make sense to have an impact assessment on a scientific question. It is a scandal that the former Commission chose to disregard its legal obligations at the bidding of the industry lobby. We have now lost two and a half years in the fight to limit the use of these chemicals, which are highly dangerous to human and animal health. The European Commission must now immediately stop its flawed impact assessment and as a matter of urgency adopt the criteria on endocrine disruptors that were ready in 2013. We cannot lose any more time and we will be vigilant in ensuring the Commission now fulfils its duty."
Lisette van Vliet, senior policy advisor at the Health and Environment Alliance (HEAL), said in a statement:
“This is a rare moment: the Commission’s abuse of the power given it by Parliament and Council has been declared by Europe’s highest Court. Will the Commission now curtail the impact assessment or will they continue regardless, with further delay at the expense of public health?”
The European Consumer Organisation (BEUC) said in a statement:
"Setting out criteria which clearly identify all endocrine disruptos will enable the EU to address the threats posed by endocrine disruptors to long-term health and the environment. Until such criteria are adopted, the EU should apply the precautionary principle and ban the use of endocrine disruptors in consumer goods where safer alternatives are available."
The European Commission was supposed to have drawn criteria for testing for suspected endocrine disruptors, found in everything from food and cleaning products to plastic containers.
But officials failed to provide that information by a December 2013 deadline. They said the Commission was trying to establish which criteria it should use to judge their impact on the environment, and that their use in plant protection, for example, was already regulated.
- Second half of 2016: The European Commission expected to publish criteria for endocrine disruptors.