Trade body files lawsuit against EU flame retardant ban…

 

The International Bromine Council (BSEF) has filed a legal challenge against the European Commission’s ban on the use of halogenated flame retardants (HFRs) in electronic displays under the EU Ecodesign Directive.

The BSEF, which represents four major producers, filed its action at the European Court of Justice on 20 February as it considers the ban “unlawful”. It argues that the Commission has exceeded the limits of its competence by imposing restrictions on an entire class of substances that fall within the scope of other EU legislation, including the Directive on the restriction of hazardous substances (RoHS) in electrical and electronic equipment.

The ban, adopted last October, will see the use of HFRs in the enclosures and stands of electronic displays prohibited from 1 March 2021. This includes televisions, monitors and digital signage.

The BSEF has previously expressed its strong opposition to what it says is an “unprecedented and unwarranted” restriction on HFRs. It claims that the substances are safe for their intended use and “essential” for preventing or delaying fires caused by electronic displays.

“Our submissions to the Commission on these aspects have unfortunately not been heeded and as such, we are obliged to resort to this legal action,” BSEF secretary general Kevin Bradley said.

The group wants the restriction to be annulled. It is contesting the Commission’s decision on seven grounds, including:

• it failed to take relevant information into account;
• it has not conducted a proper impact assessment. The class of substances has not undergone scrutiny under REACH and RoHS; and
• it breached the general EU law principles of legal certainty, proportionality and equal treatment.

Precedent

The Ecodesign Directive provides EU-wide rules for improving the environmental performance of products, such as household appliances, information and communication technologies and engineering. It is implemented through product-specific regulations, directly applicable in all EU countries.

NGOs have hailed the ban as a big step towards a more circular economy. And the Commission now wants to propose new legislation to widen the Directive’s scope to the “broadest possible range of products”, under revised circular economy measures unveiled yesterday.

As things stand, however, the BSEF is concerned that the ban sets a “regulatory precedent” and says the Commission is using  Ecodesign as a vehicle to bypass REACH and RoHS.

Dr Bradley said eliminating the use of HFRs, particularly where other regulatory regimes already permit and regulate their use in displays “does not represent sound public policy”.

BSEF members are Albemarle Corporation, ICL Industrial Products, Lanxess and Tosoh. It is represented in the case by law firm Steptoe & Johnson.

The Commission told Chemical Watch it is examining the case in preparation of its defence. The restriction, sources at the EU executive said, was not part of its proposal submitted during an Ecodesign regulatory committee meeting, but was introduced by EU member states.

The RoHS Directive has restricted the use of certain groups of HFRs – polybrominated biphenyls (PBB) and polybrominated diphenyl ethers (PBDE) – since 2003 and others are being assessed for possible restriction, the sources said.