Some clarification regarding challenges to REACH candidate listing

In a series of recent judgments the EU General Court has given some guidance to companies considering challenging the inclusion of their substances in the REACH Candidate List. In summary, it is now clear that the listing of a PBT (Persistent, Bioaccumulative and Toxic) or vPvB (very Persistent and very Bioaccumulative) substance is of direct concern to registrants of that substance. There is therefore no formal bar to manufacturers and importers of such stances challenging their inclusion in the Candidate List, in contrast to manufacturers and importers of substances listed on the grounds that they are carcinogenic, mutagenic or reprotoxic (see our alert on earlier case-law). However, the Court continues to be reluctant to interfere with ECHA's decisions in this technical area and it remains difficult to argue successfully that such decisions are legally flawed.

Background -

The Candidate List lists substances that have been identified in accordance with REACH as Substances of Very High Concern ("SVHC") and are therefore candidates for inclusion in Annex XIV to REACH, substances requiring authorisation. On 13 January 2010 ECHA published its decision to include a series of substances in the Candidate List. A number of manufacturers of pitch, coal tar, high temperature (CTPHT); anthracene oil; anthracene oil, anthracene low; and anthracene oil (anthracene paste) brought actions before the General Court seeking annulment of that decision with regard to those substances.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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