EU

First Bioplastic Lawsuit Against EU (FREE)

UK Bioplastic Company To sue the EU for Infringement of the REACH regulation.

Symphony Environmental Technologies Plc., listed on the AIM market of the London Stock Exchange is suing the European Union.

Reason

  • SUP Ban

The EU introduced a ban on OXO-degradable plastics starting on 3 July 2021 through Article 5 of the SUP Directive. However this is in contradiction to the REACH regulation that sets a mandatory procedure for banning substances.

  • OXO-degradable vs OXO-biodegradable

Although the Article 5 ban stipulates “OXO-degradable”, the European Commission has not made it clear that it does not apply to OXO-biodegradable plastics. The EU seem to confuse “degradable” and “biodegradable”, which are two different technologies. We should speak of “bio-degradable” if bacteria are responsible for the ultimate degradation of the polymer.

  • Microplastics

The SUP Directive cites “microplastics” as the reason for the ban. However, the European Commission doesn’t have an official proof for this claim.

REACH Procedure

The REACH Regulation 2006 introduced a procedure for banning substances in the EU. To be able to ban a substance, the REACH procedure sets following conditions:

  • the European Chemicals Agency (ECHA) must recommend a ban or restriction, and publish a detailed dossier
  • the recommendation must be considered by two committees and a stakeholder consultation.

The European commission started the REACH procedure on 22 December 2017 by requesting ECHA to start an investigation as to whether OXO biodegradable plastics was a source of microplastics.

On 30 October 2018, ECHA concluded that they were not convinced OXO-biodegradable was a source of microplastics.

Instead of listening to ECHA, the European Commission decided to ignore their expert opinion and instructed ECHA to stop their investigation on 30th April 2019. Clearly the expert advice did not suit them.

Unfair Competition & Connivance

The CEO of Symphony Environmental, Michael Laurier, claims that this witch hunting has nothing to do with microplastics. He said:

“This has been a very ugly manoeuvre in Brussels and we think it is the work of lobbyists acting for some large German and Italian competitors. We are aware that there is another industry (the BSEF) suing the EU for an “unprecedented and unwarranted restriction” on their products, and we wish them well. It seems that the EU has become so arrogant, and lobbyists in Brussels so powerful, that they think they can do whatever they please.”

Symphony’s Deputy Chairman, Michael Stephen, a former Barrister and Member of the UK Parliament, said:

“The Board has not decided lightly to take this court action, but the way the EU has behaved and the resultant confusion and damage to our business is unacceptable. We will not accept restraint of trade without due process, non-discrimination, proportionality, and scientific justification, and we are claiming compensation under Article 340 of the Treaty on the Functioning of the EU.”

Remarks

The point here is not about the effectiveness of a biodegradable technology; but about the rule of law. Manufacturers deserve a fair trial and due process.  Does the EU respect its own laws? Is the EU legislative process evidence-based or the result of manipulation by powerful commercial interests?  Which Commissioners, officials, and MEPs are complicit in this?

The SUP Directive bans a substance without respecting the REACH procedure and the ECHA investigation, which were designed to prevent the kind of arbitrary action which has happened here.

The European Commission started the REACH procedure, then decided to stop the procedure and quietly slip a clause into the SUP Directive which was not in the original proposal for this legislation.

The European Commission and Parliament should not be able to ignore the REACH regulation when you consider the amount of time and energy that was put into the creation of it. The EU court must intervene and ensure the Commission and Parliament respect the EU rule of law.

The European Commission should have banned synthetic textiles and the down cycling of PET bottles into polyester if marine microplastics was the reason for the ban. Synthetic textiles are the most important source of marine microplastics. 

 

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