European Commission replies to questions from the European Parliament on the ECJ judgment Case C-358 11
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By way of background, in a reference for preliminary ruling in case C-358/11 Lapin elinkeino, the Court of Justice has ruled, amongst other issues, that Articles 67 and 128 of the REACH Regulation must be interpreted as meaning that EU law harmonises the requirements relating to the manufacture, placing on the market or use of a substance such as that relating to arsenic compounds which is the subject of a restriction under Annex XVII to that regulation. In addition, the Court emphasized that if Member States wish to impose further conditions for these substances, they can do so only in accordance with Articles 129(1) and 114(5) of the REACH Regulation. In other words, the adoption of other conditions is incompatible with the objectives of the Regulation.
The European Parliament was not in favour of this decision, and on 14 November 2013 it asked the opinion of the European Commission. On 20 December 2013, EU Industry Commissioner Tajani provided the Commission in the form of the following three points. First, the Commission shares the interpretation, as expressed by the Court of Justice, that the REACH Regulation harmonises the requirements relating to the manufacture, placing on the market or use of a substance which is the subject of a restriction under Annex XVII to that regulation. One of the aims of the REACH Regulation is to ensure a high level of protection of human health and the environment, and the REACH Regulation contains the adequate procedures to achieve that aim for those substances. Member States are only allowed to go further in terms of restricting those chemicals in the two cases referred to in that judgment.
Second, the restrictions under Annex XVII achieve a high level of protection for human health and the environment. The procedure for amending or adopting new restrictions ensures that any new EU-wide risk is addressed throughout the Union. National bans, on the contrary, would fail to provide EU-wide protection, and would undermine the other objectives of REACH, namely the free circulation of substances on the internal market and enhancing competitiveness and innovation. Finally, the Commission stated that Member States have the obligation under REACH to initiate a re-examination of any restriction under its Annex XVII if they consider that the risks related to the manufacture, placing on the market or use of a substance are not adequately controlled.