International Law

This reference for a preliminary ruling concerned the interpretation and validity of Art. 6(3) of Regulation 1907/2006 of the European Parliament and of the Council of December 18, 2006 concerning the Registration, Evaluation, Authorization and restriction of Chemicals (?the REACH Regulation?).

The applicant companies in the main proceedings were an undertaking established in France which manufactures water-soluble polymers used in the wastewater treatment industries, an undertaking established in Germany which was a distributor and wholesaler of specialty and industrial chemicals, including preparations and polymers, a company incorporated under English law which imported chemicals, including polymers and preparations, and a holding corporation established in the United States which supplied water- and organo-soluble polymer-based products.

These companies challenged the interpretation and also the validity of Art. 6(3) of the REACH Regulation. Relying on two expert opinions compiled by the Netherlands Organisation for Applied Scientific Research, they submitted that reacted monomers ceased to exhibite their own individual chemical characteristics and that polymers were generally stable and safe. In their view, it followed that, if the words ?monomer substances? in Art. 6(3) of the REACH Regulation were to mean or include reacted monomers, it would make no sense to exempt polymers from registration while requiring the registration of monomer substances. Moreover, such an interpretation would, they argued, be inconsistent with the objectives of that regulation and would be discriminatory and disproportionate.

REACH Regulation not applying to monomers
The Court of Justice held that it was clear from the wording of Art. 3(5) of the REACH Regulation that polymers were composed of monomer units, which were defined as monomer substances in a reacted form. Second, under Art. 3(6) of the regulation, a monomer, by contrast, was a ?substance? within the meaning of Art. 3(1) when it was in an unreacted form. Third, it followed from Art. 6(3) of the REACH Regulation that registration concerned monomer substances or any other substances which were constituents of polymers.

The fact that the words ?monomeric units? were used in Art. 6(3) of the REACH Regulation rather than the words ?monomer units?, which appeared in Art. 3(5) of the English and French versions of the REACH Regulation, could not affect that founding. The Court argued that it followed from the preparatory works that those words were added at the request of the Sweden. The Swedish-language version of the REACH Regulation used the same words ?monomer units? in Arts 3(5) and 6(3) of the regulation. It followed that the concept of ?monomer substances? in Art. 6(3) of the REACH Regulation related only to reacted monomers which were incorporated in polymers.

The principle of proportionality
The Court reiterated that the principle of proportionality, which was one of the general principles of Community law, required that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what was necessary to achieve it. The Community legislature must be allowed a broad discretion in an area such as that involved in the present case, which entailed political, economic and social choices on its part, and in which it was called upon to undertake complex assessments. The legality of a measure adopted in that sphere could be affected only if the measure was manifestly inappropriate having regard to the objective which the competent institution was seeking to pursue (Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002]).

The Court found that the obligation to register reacted monomers in polymers was an appropriate means by which to realise the objectives of the REACH Regulation. Nor did such an obligation go beyond that which was necessary to meet the objectives of the REACH Regulation. It followed that Article 6(3) of the REACH Regulation was not invalid on the ground that it infringed the principle of proportionality.

The principle of equal treatment
The applicants in the main proceedings also claimed that, although the obligation to register monomer substances was identical, Community manufacturers of polymers were in a position to register those substances more easily than were importers inasmuch as they knew the composition of their products, whereas importers were, for their part, subject to the good would of their suppliers outside Community territory.

The Court reiterated that the principle of equal treatment or non-discrimination required that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment was objectively justified (Case C-344/04 IATA and ELFAA [2006])

The Court held that that the obligation to register was identical for Community manufacturers and for importers. Second, reacted monomer substances in polymers manufactured or imported into the Community were in a comparable situation since they were interchangeable or identical. Third, Community manufacturers and importers were in a different situation as the former had knowledge of their products, whereas the latter were dependent on the provision of information by suppliers outside Community territory.

The Court held that, nevertheless, the identical treatment required in those different situations was objectively justified by compliance with the competition rules applicable in the internal market. If importers of reacted monomer substances were to be treated differently to manufacturers of those same substances within the Community, the former would be treated more favourably than the latter.

It followed Article 6(3) of the REACH Regulation was neither invalid on the ground that that principle had been infringed.

Full post as published by ECJBlog.com on July 17, 2009 (boomark / email).