Substitution requires all possible support

In its Art. 57, the EU chemicals regulation REACH lists specific hazardous properties that are of particular concern for human health and/or the environment. Substances which have been demonstrated by Member State authorities or by the European Chemicals Agency (ECHA) to fulfil these criteria are identified as substances of very high concern (SVHCs). These substances are included on the list of candidates for authorisation under REACH, the ultimate aim of which is their eventual phase-out where technically and economically feasible. Although the awareness of chemical risks has increased in general and authorities have intensified their support to companies, the rate of substitution of hazardous substances is still criticised as too slow. In October 2018 an international seminar was jointly organised by three EU projects dealing with the reduction of risks from hazardous chemicals: “LIFE Fit for REACH” provides specific support on substitution to Baltic companies; the “NonHazCity” InterReg project identifies emission sources of hazardous substances, builds awareness and capacity in chemicals in cities and leads to emission reductions from small scale sources. The third project “LIFE AskREACH” aims at developing a smartphone app to improve communication of information on SVHCs in articles under REACH to consumers and improving related supply chain communication and awareness. At the seminar, opportunities to support substitution and overcome current barriers were discussed by experts from the EC, ECHA, Member States and different organisations, including academia, NGOs and the industry. This article describes the background of the discussions and the conclusions from the activities in the three projects, including the aforementioned joint seminar. It also contributes to the discussions on options to foster substitution in general.

A Battle of the Norms in EU Chemicals Regulation Space: Reflections on the Court of Justice Decision on the Concept of “Articles” Under REACH

Judgment of the Court (Third Chamber) delivered on 10 September 2015 in Case C-106/14, Fédération des entreprises du commerce et de la distribution (FCD) and Fédération des magasins de bricolage et de l’aménagement de la maison (FMB) v Ministre de l’écologie, du développement durable et de lʼénergie.

Laws in Progress? Reconceptualizing Accountability Strategies in the Era of Framework Norms

EU law is teeming with framework norms – ‘laws in progress’. They provide little clarity for those to whom they apply, engendering rule-making in networks to assist those charged with implementing and applying laws at the national level. Taking as its specific focus the particular process through which the concept of an ‘article’ was constructed and constituted in a set of negotiations around the EU Chemicals Regulation, REACH, this article shows that networks not only make framework norms operational but also transform them in the process. The fact that networks have an important role in laying out what the law says throws the effectiveness of traditional forms of accountability in doubt. In particular, judicial control is in need of rethinking in order to accommodate norms that change and the networks that change them. This article suggests looking at the connections between internal peer control and externally operating judicial control as a way to keep up with the progress of laws in progress.

Influence of the EU Chemicals Regulation on the US Policy Reform Debate: Is a ‘California Effect’ within REACH?

In 2006, the EU adopted the REACH Regulation – the world’s most demanding chemicals regime so far. Even before it entered into force, the European Commission declared its ambition to make REACH a global standard, and several authors see a potential for far-reaching influence via the ‘California effect’, as conceptualized by David Vogel. Economic preconditions are indeed fulfilled with the chemicals industry being highly globalized, the EU as an attractive export market and REACH applying to imports. Following Vogel, firms exporting to the EU might have an incentive to lobby for similar requirements in their country. This article examines whether American chemical producers do, indeed, push for EU-like provisions in the debate on US policy reform. While there is some influence on the US, it is shown that REACH does not (yet) trigger a ‘California effect’. The business case does not seem to be strong enough.