Companies and organisations hoping that the European Commission’s impact assessment on ED criteria will drive evidence-based policy with appropriate consideration of all costs and benefits should take warning of today’s ruling from the General Court of the European Union (Judgment in Case T-521/14 Sweden v Commission).
You may remember that in July 2014 Sweden decided to bring the European Commission before the Court for being late on delivering criteria to identify endocrine disrupting substances (ED) by December 13 2013 – as required by the biocides regulation. It turned out that Sweden was not the only one tired of waiting for the Commission to act as Denmark, France, the Netherlands, Finland, the European Parliament and the Council decided to join the case as well.
Following a markedly fast moving procedure, the Court has come to a decision on 16 December. The judges found the Commission breached its clear, precise and unconditional obligation to adopt scientific criteria for the determination of endocrine-disrupting properties. Interestingly, the court notes that no provision forced the Commission to conduct an impact assessment before proposing ED criteria; an argument used by the Commission’s lawyers to justify the delay.
The ruling should not come as a surprise as the Commission clearly missed the deadline. A few important comments need to be made though.
From a legal perspective on the one hand, it is probably the first time that the binding nature of a deadline enshrined in legislation is so clearly recognised by the Court. According to the judges, the deadline is not a mere objective but a legally binding obligation. In other words, the Commission has no margin of maneuver. On the other hand, the case should also draw attention from a political perspective as it could affect the ongoing ED impact assessment process – most importantly how its outcome could be received.
The impact assessment will go on, of course, and eventually deliver the long-awaited ED criteria. However it remains to be seen how much the Commission’s credibility on this dossier could be (even more) weakened by the ruling. In bringing the Commission before the Court, Sweden had more than a legal objective in mind (otherwise Swedish authorities would challenge the Commission every time they miss a deadline). With the chemicals policy high on its political agenda – EDs in particular – it was particularly important for Sweden to have the Commission’s failure to adopt the criteria acknowledged by the European judge.
From that perspective, it is a success for Sweden and its supporters. A success that many more of their allies could use to challenge upcoming Commission’s decisions, when necessary.
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May 28, 2020