The revision of REACH: How will a post-Lisbon REACH Regulation look like?

Peter Holdorf

The revision of the EU’s REACH Regulation is becoming a reality. The European Commission intends to reopen REACH with a legislative proposal due at the end of 2022.

Besides the many changes outlined in the initial impact assessment to ensure that REACH is fit to meet the ambitions of the Chemicals Strategy for Sustainability, the revision will no doubt raise the question of how to adopt decisions under the REACH as the Regulation is still to be aligned with the Lisbon Treaty. This is a key issue as a wealth of implementing decisions adopted via the EU’s procedures for secondary legislation are needed to make the REACH Regulation work.

The choice of procedure could have significant implications by shifting the balance of power between the EU Institutions. The policy implications of this could be significant. Look no further than the trends in the objections by the European Parliament‘s Environment Committee.

As the CLP Regulation was adapted to the Lisbon Treaty’s delegated acts procedure in 2019, I took a look at the implications that a future adaptation of the REACH Regulation might have.

The alignment of the CLP to the delegated acts procedure had significant implications for the adoption of the 14th ATP  (it was blocked under the previous procedure) – files under REACH could see similar impacts once the Regulation is revised.

Note – this blog was first published on 18 July 2019. 

As the alignment of the EU’s Classification and Labelling (CLP) Regulation with the Lisbon Treaty’s delegated acts procedure is nearing completion, it raises the question: what will happen to other chemicals legislation, such as REACH, which still (mainly) use the pre-Lisbon regulatory procedures, as the CLP did?

The future choice of procedure will have important implications, as it significantly shifts the balance of power between the Commission, the European Parliament and the Member States. For instance, the change to delegated acts under the CLP Regulation has caused some concern about whether the Commission will be empowered to go its own way  (something I’ve considered further here).

When the re-opening of REACH eventually happens, the choice of procedures for adopting decisions under the Regulation will undoubtedly be highly politically contentious. However, recently adopted criteria may provide some clues about the direction of these discussions.

Why is the procedure for adopting secondary legislation important?

The Lisbon Treaty put in place two procedures for adopting secondary legislation: the delegated acts procedure and the implementing acts procedure. These procedures each have many intricacies which I will refrain from going into in-depth with here, but, overall the main differences relate to the possibility of oversight and opportunities to raise reservations.

Under the delegated acts procedure (art. 290 TFEU), the Commission first adopts the act after consultation with Member State experts and sends it for scrutiny by European Parliament and the Council.  Firstly, it means that the Member States no longer vote on a draft act before it is submitted for scrutiny. Secondly, during the scrutiny, the bar to raise an objection in the Council is very high, as a so-called super qualified majority is needed (72% of Member States representing 65% of EU population). The bar in the European Parliament for an objection remains a simple majority of 376 MEPs. The procedure thus weakens the position of Member States while enhancing the role of the European Parliament and the Commission.

The implementing acts procedure (art. 291 TFEU) comes with less oversight for the European Parliament and retains (to a larger extent) the core role of Member States. Under the procedure, the Commission prepares an act which is put to a vote in a Member States regulatory committee by a qualified majority. If positive, the Commission can adopt the act. While the European Parliament can raise a challenge at any point during the process and it must be then considered by the Commission, there is no obligation to revise or amend the act because of it. So, the European Parliament’s role is much more limited.

From this brief outline, it should be clear why the choice of procedure is critical for several REACH decisions by shifting the power balance between the institutions significantly.

So, which procedure(s) will be used under REACH?

The European Parliament, the Council and the Commission recently agreed on non-binding criteria for the use of delegated and implementing acts which may provide a part of the answer to this question. These were adopted in acknowledgement of the need to clarify when to apply the different procedures (likely to avoid or at least reduce the lengthy quarrelling every time this question comes up).

A top-level overview of the criteria is available in the table below.

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According to the criteria, delegated acts may be used to:

  1. include substances on the Authorisation list (Annex XIV), and;
  2. adopt REACH Restrictions (Annex XVII)

These are processes and decisions which in the past have proven highly contentious, especially among the Member States which could see their role diminished under the delegated acts procedure.  At the same time, the high bar for raising an objection in the Council would shift the power balance towards the European Parliament, compelling the Commission to pay more attention to their views in their considerations. This could be critical given the often increasingly tough position of the European Parliament on chemicals issues.

Beyond this, there is the question of what will happen to the processes that effectively follow the implementing acts procedure already (e.g. decisions on applications for Authorisation and identification of SVHCs). This may be challenged and changed with the reopening of the text, especially by the European Parliament which will seize the opportunity to strengthen its role in these processes where it currently plays a limited role.

The criteria are only a starting point, expect discussions to get political

While the criteria might provide a useful starting point for these discussions, it is by no means certain that they will be followed. The question of delegation of competencies to the EU level is highly contentious (look no further than the recent POPs Recast for an example) as it goes to the core of concerns around national interests, the direction of EU integration etc.

This means that the outcome may depend on the general political climate once REACH is re-opened with the stance of Governments on EU integration being a key factor as well as the wider balance of power between the institutions. In any case, long and difficult talks are almost a certainty.

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