Judgment 1st case
Judgment issued in action for annulment of BPA Reprotox Candidate Listing
PlasticsEurope takes note of the judgment of the General Court of 11 July 2019 in Case T-185/17 PlasticsEurope v ECHA concerning the inclusion of Bisphenol-A (BPA) on the REACH Candidate List of Substances of Very High Concern (SVHCs) under Article 57(c) of Title VII of REACH on Authorisation. PlasticsEurope had requested the annulment of the reprotoxicity identification of BPA for the Candidate Listing as SVHC, because BPA is mainly an intermediate, which is exempted from Authorisation under REACH. Therefore, the SVHC listing is disproportionate.
PlasticsEurope is currently in the process of evaluating the judgment and assessing options. We already note that the Court’s conclusion is in clear contradiction to the express provisions of the REACH Regulation, it misapplies and misinterprets the concept of “intermediates” – which, as argued, are substances and not mere “uses” of a substance, – and it wrongly considers that the Candidate Listing has an end in itself (information sharing) instead of being a first step towards Authorization.
PlasticsEurope continues to consider that the REACH Regulation exempts intermediates from the entire Authorisation Title of REACH, including their inclusion on the candidate list for eventual inclusion in Annex XIV as SVHCs. Arguments have been put forward in this case – which had not been considered by the Court in previous cases – which support this position.
In the specific case of BPA, which is mainly an intermediate, inclusion on the Candidate List is also disproportionate since intermediates are not subject to the other stages of the Authorisation Title of REACH (inclusion on Annex XIV and application for Authorisation). Importantly, BPA as an intermediate would not be affected even if in the future BPA was to be included on Annex XIV, it could continue to be lawfully placed on the market as an intermediate without an Authorisation.
In any event, the General Court’s judgment does not affect the current situation, which is that BPA (whether an intermediate or not) can be lawfully and safely placed on the EU market in compliance with all relevant legislation.
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