Environmental & Clean Technology

Last week the Court of Justice of the European Union (“CJEU”) upheld a broad interpretation of the concept of “information that relates to emissions into the environment” that EU and Member State authorities (e.g., ECHA, EFSA, Commission, national environmental agencies) must disclose to the public.  According to the CJEU, the information that must be disclosed does not only relate to emissions from industrial installations, and must also include data allowing the public to: (i) know what is, or may be foreseen to be, released into the environment under normal or reasonable conditions of use of a product or substance; (ii) check the correctness of the assessment of the actual or foreseeable emissions on the basis of which product or substance is authorized; and (iii) understand the effect of those emissions on the environment.   This information must be disclosed to the public, upon request, even if it may affect the commercial interests of companies.

The CJEU’s decisions will have a significant impact on all companies that are required to submit regulatory filings to access the EU market under different EU legislation (e.g., REACH, Biocides, Plant Protection Products, Fertilizers, GMOs).  These companies must now assume that much of the data they submit may not be kept confidential.


Continue Reading The Court of Justice of the EU Adopts a Broad Interpretation of the Information on Emissions into the Environment that Authorities Must Disclose to the Public

The European Commission has launched a public consultation on possible EU measures to increase the transparency of nanomaterials on the European market.  The consultation is the first step of a Commission drafting procedure that is likely to end in a proposal for a Regulation on an EU Nano-Registry that the Commission could formally present by Spring 2015.

The Commission’s consultation aims at gathering the views of the public on the currently available information on nanomaterials on the market, whether the information available is sufficient to guarantee the safe use of nanomaterials and products containing them and informed consumer choice, and the different options to address any lack of information.  The consultation will contribute to the preparation of an impact assessment of a possible future Commission proposal.
Continue Reading The European Commission Launches a Public Consultation on a EU Nano-Registry

The attached presentation on the New EU Rules on Articles Treated with Biocidal Products was presented at the Annual Conference on European Food Law 2014 of the Academy of European Law ,  Trier, on May 5, 2014.  The slides discuss the new rules for treated articles of the EU Biocidal Products Regulation, the evolving Commission’s

In a move that illustrates a continued political will to step up its enforcement powers, the European Chemicals Agency recently sent out REACH Article 36 letters to 46 companies that according to ECHA failed to correct their registration dossiers of intermediate substances.  Under the EU REACH Regulation, intermediates are subject to less burdensome registration substances than regular substances.  In its letters, ECHA requests registrants to provide information on the volumes of their substances covered by uses that ECHA considers are inconsistent with the REACH Regulation’s definition of “intermediate” or its strict conditions of use.

By requesting the information on volume of the substances, the letters intend to force registrants to update their registration dossiers. This can be done either by  registering the substances in full, amending their reported uses or submitting the requested information on volume.  Where the company provides the requested volume information, ECHA will start a compliance check against them for those volumes.  The letters also warn that ECHA will invite national enforcement authorities to take follow up actions against those companies that fail to act in response to ECHA’s Article 36 letters.
Continue Reading ECHA Steps Up its Enforcement Powers Under the REACH Regime

This post was originally published as a Covington E-Alert

Very recently, the General Court of the European Union held that European institutions and agencies (e.g., European Commission, ECHA, EFSA, EMA) must disclose to the public, upon their request, information on the impurities and composition of substances emitted into the environment even if this may affect the commercial interests and intellectual property rights of the companies that developed the products.

The Court ruled against a European Commission decision that denied two NGOs access to several documents relating to the approval of the active substance glyphosate in plant protection products.  The refusal was based on the need to protect the commercial interests of the manufacturers of the substance. The Court held that Regulation 1367/2006 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community Institutions and Bodies (“Aarhus Regulation”) requires EU institutions and bodies to disclose information if it “relates to emissions into the environment” even if it can undermine the commercial interests of companies.  This applies to any information that “relates in a sufficiently direct manner to emissions into the environment.” The Court found that information concerning the identification and quantity of impurities contained in the substances meets that definition.
Continue Reading EU Court Requires EU Authorities to Disclose Information on Impurities and Composition of Substances Submitted by Companies

Originally posted as Covington E-Alert on August 30, 2013

As of September 1, 2013, the new rules of the EU Biocidal Products Regulation apply to goods manufactured in, or imported into, the European Union and European Economic Area (“EU/EEA”).[1]  The Regulation imposes new approval, labeling and disclosure requirements on goods (i.e., substances, mixtures, objects) that have been treated with or that intentionally incorporate biocidal products (so-called “treated articles”), even if such goods do not have a biocidal function.
Continue Reading New EU Requirements on Articles Treated with Biocidal Products

Article originally published in EuroWatch on August 15, 2011

The Council of the European Union has adopted a position at First Reading on a proposal for a Regulation on Biocidal Products that would impose new requirements on goods treated with biocidal products (“Council First Reading”).1 The new rules would apply to a wide variety of consumer goods, such as furniture and other wood products, packaging, electronic equipment, plastic materials, paper and tissue products, absorbent hygiene products, apparel, paints, and kitchen accessories, and are likely to have a significant impact on goods imported into the European Union or European Economic Area.

The Council First Reading would significantly change the EU regulatory framework for materials (i.e., articles, mixtures, and substances) treated with or incorporating biocidal products. On the one hand, the new rules would limit the scope of the strict requirements that apply to biocidal products to only those materials that have a primary biocidal purpose. On the other hand, however, they would also create a new category of rules for all materials that intentionally incorporate or have been treated with biocidal products (so-called “treated articles”) even if such materials do not have a primary biocidal purpose.
Continue Reading Upcoming EU Requirements on Goods Treated with Biocidal Substances

Originally published as Covington E-Alert in April 2011

THE REACH REGULATION AND SUBSTANCES OF VERY HIGH CONCERN

The European Union’s Regulation (EC) No. 1907/2006 on the Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH Regulation”) requires the European Chemicals Agency (“ECHA”) to identify so-called Substances of Very High Concern (“SVHCs”) and to list them in