EU Commission under pressure to break authorisation deadlock

British letter says substitution plan should be required under both routes of authorisation

Your free trial ends on 26 March 2010. Subscribe today Pressure is mounting on the European Commission to make progress on REACH authorisation guidance for industry which has been stalled since 2007. A number of governments have expressed their concern at the delay in agreeing the guidance.

In particular, the UK is known to have written to senior officials in DG Environment and DG Industry and Entrepreneurship, noting that, “it is increasingly worrying that the guidance for industry on the authorisation process is still not finalised and published.” The UK states that it wants authorisation to be applied quickly to the most hazardous substances: “However, we seriously question whether it is appropriate to add substances to Annex XIV before there is clear guidance to industry on how it should then fulfil its duties.”

The letter points out that the draft guidance has been awaiting finalisation since 2007 due to ongoing discussions within the Commission about the interpretation of the REACH text, and in particular whether industry should complete and submit a substitution plan when it applies for an authorisation under the socio-economic route, as well as the adequate control route – or only in the latter case. It then states that: “The UK would strongly contend that the requirement for a substitution plan should apply in both cases.”

Several governments are believed to have expressed their support for the UK's communication with the Commission, including Denmark, France and the Netherlands.

The main hurdle to advancing the guidance is understood to have been disagreement on the issue between Günter Verheugen and Stavros Dimas the previous Commissioners for DG Industry and Environment. One observer noted that the newly appointed Commissioners are the “ultimate means to get out if this deadlock.” But the UK also believes that the Commission should seek fresh legal advice on its interpretation of the authorisation text.

Meanwhile, it has emerged that WWF Europe has submitted an official request for access to the Commission's internal documents relating to the draft guidance on applications for authorisation, in particular legal interpretations of the REACH text that all relevant Commission entities might hold or have expressed.

This stated that: “we are very concerned that at the last CARACAL [Competent Authorities for REACH and Classification and Labelling] meeting regarding the implementation of the REACH Regulation…at the beginning of February 2010, there was again no news regarding any progress on the guidance document related to the application for authorisation. We understand that there may be different views as to when a substitution plan is required." WWF’s Ninja Reineke added that: “It is unacceptable that this discussion has been delaying and continues to delay the start of the whole authorisation procedure.” The Commission wrote back to WWF this week asking for more time to respond.

The European Chemicals Agency's Management Board discussed the hold-up at a recent meeting and was presented with a legal analysis of the situation by Professor Martin Führ of the Society for Instiutional Analysis (SOFIA) who is an NGO representative to the board. This argues that it is clear that REACH intends that a substitution plan should be required under either route of authorisation and that this is an essential part of the Regulation's effectiveness in protecting human health and the environment and promoting innovation and competition.