As of July 1, 2008, deca-BDE flame retardants are prohibited from new electrical and electronic equipment sold on the European Union market. The prohibition follows the European Court of Justice’s (ECJ) decision that annulled (i.e., voided) an exemption for deca-BDE (decabromodiphenyl ether) under the EU’s Restriction of Hazardous Substances (RoHS) Directive. While underscoring a global trend away from the use of deca-BDE, the decision also provides some insight into the judicial scrutiny of environmental legislation in the EU.
Although the RoHS Directive restricts the use in certain electrical and electronic equipment of six chemicals, it does provide for exemptions. Based on a risk assessment performed under the Existing Substances Regulation and, importantly, not the RoHS Directive, the European Commission had granted an exemption for deca-BDE.
Citing concerns about scientific uncertainty as to the health and environmental consequences of deca-BDE use, the European Parliament and Denmark challenged the exemption on procedural grounds, and claimed that the European Commission failed to follow the specific RoHS exemption approach. The ECJ agreed. On April 1, 2008, the court determined that the European Commission, by adopting the exemption under the Existing Substances Regulation used a risk assessment criteria and procedure that was inconsistent with the RoHS Directive. Because the assessment did not address the conditions for an exemption required by the RoHS Directive, the court ruled that the deca-BDE exemption was annulled. The court then allowed a 3-month transition period before prohibiting deca-BDE.
The ECJ's level of judicial application of the RoHS Directive may have implications for other environmental laws in the EU, including REACH, the new chemicals regime. In the deca-BDE case, the court found the risk assessment approach used, even though technically relevant, was flawed because it was not fully consistent with specific criteria provided in the relevant legislation. As a result, the court is requiring the European Commission to adhere to environmental requirements specifically set out in the overarching EU legislation. This requirement may prove quite onerous, especially in complex and evolving laws such as the REACH, and may provide a legal basis to challenge environmental measures of the European Commission.
In addition to examining the criteria and objectives of the RoHS Directive, the ECJ also justified its strict interpretation of the deca-BDE exemption under the public health and environmental provisions of the European Community Treaty. This may indicate that, in the future, requirements under other environmental legislation may need to satisfy the Treaty’s provisions ensuring a high level of human health protection, the use of the precautionary principle, and that preventive action should be taken.
As for the future of deca-BDE, regulation of the chemical is increasing while it appears the chemical’s use is decreasing. Along with the prohibition in the EU, several states have enacted legislation limiting the use of deca-BDE. Moreover, a number of large, global companies have already replaced deca-BDE with alternative flame retardants. As a result, these companies are better prepared to comply with the current restriction of deca-BDE, especially in the EU, and may gain a competitive advantage against competitors that continue to depend on the chemical.
