domenica, Luglio 14, 2024
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A new task for the European Chemicals Agency: a new stage for global chemicals policy?

The recast of the EU Regulation on persistent organic pollutants (POPs) was published on the EU Official Journal on 25 June 2019[1]. While this Recast was initially intended to align the Regulation with the Lisbon Treaty, it ended up containing more substantial changes. One of the most significant changes was the assignment of new tasks to the European Chemicals Agency (ECHA).

The objectives of the POPs Regulation are two-fold: on the one hand, it serves the purpose of complying with the obligations deriving from the UNECE Convention on Long-Range Transboundary Air Pollution on POPs (CLRTAP) and the UN Stockholm Convention on Persistent Organic Pollutants; on the other hand, it aims to protect the environment and human health and emphasizes the EU’s intention to eliminate the production and use of POPs[2].

As such, the EU POPs Regulation lays down the rules to prohibit, phase out or restrict the manufacturing, placing on the market and use of the substances that have been regulated under the Stockholm Convention[3].

POPs are chemical substances that, as the name suggests, persist in the environment, bioaccumulate through the food chain, and pose a risk of causing adverse effects to the environment and human health. They have also the ability of being transported across international borders far from their source, that is why they have been regulated at the international level. This group of chemicals includes pesticides, industrial chemicals and unintentional by-products of industrial processes.

As mentioned above, internationally, POPs are regulated by the CLRTAP and the UN Stockholm Convention, and, at European level, the EU had already complied with its obligations under the Conventions by adopting Regulation 850/2004. However, in the light of the numerous amendments to the Regulation made necessary by the listing of chemicals under the Stockholm Convention, and more importantly, due to the procedural changes introduced by the Lisbon Treaty, the European Commission presented the proposal for the Recast to align the Regulation with the new system created by the Treaty on the Functioning of the European Union (TFEU)[4].

This Recast has been also seen as a unique opportunity for the European Commission to propose more substantial changes to the architecture of the EU POPs Regulation[5].

One of the most important changes is related to the EU process for identifying and nominating POPs at the meetings of the Conference of the Parties to the Stockholm Convention, that take place every two years, and to the new tasks attributed to ECHA. Pursuant to Article 8 of the EU POPs Regulation, ECHA will provide technical assistance and scientific guidance to the Member States in order to ensure the effective application of the Regulation and, more importantly, will prepare and examine technical dossiers on chemicals that may meet the POP criteria, carry out stakeholder consultations, and draw up opinions that should be used by the Commission in considering whether to come forward with a proposal for listing a substance as a POP under the Convention.

The rationale behind this choice lies in the experience and competence that ECHA has gained in implementing the Union’s chemical legislations, over more than 10 years, since the adoption of Regulation 1907/2006 (REACH).

The new role created for ECHA by the Regulation has been welcomed by the industry, as they believe that ECHA’s oversight will improve the POP nomination process. ECHA is expected to provide knowledge and expertise, and, above all, to increase the transparency and predictability over the process that leads the European Commission to propose chemicals for listing under the Stockholm Convention[6].

Under the previous system, the European Commission would present to the Council a proposal for a decision to address the intention of the European Union to formally submit a proposal for listing of chemicals that, according to the European Commission’s assessment, would meet the POP criteria. As a result, there was no public or institutional oversight over the scientific and technical work the European Commission carried out before submitting proposal at the international level. This, in turn, created the suspicion that the nominations put forward by the European Commission were politically driven, instead than being grounded on sound scientific evidence.

Therefore, ECHA’s role can be certainly seen as an element that not only brings clarity and predictability over the POPs nomination process, but also strengthens the scientific basis for POP nominations and provides for  institutional and public control over the European Commission’s activity.

If one bears in mind that, since the entry into force of the Stockholm Convention, the EU has been responsible for around 60% of the POP nominations and that the EU chemicals legislation constitutes a highly protective (mixed) risk and hazard-based system grounded on the precautionary principle, could ECHA’s new role potentially turn the EU in a global leader on chemicals policy?

Compared to other regions of the world that lack the capacity to present POP nomination proposals, the EU has a well-established chemicals legislation, a specialised Agency that deals with both EU and international chemicals policy and legislation, a very active civil society calling for less exposure to chemicals and the ambition to phase out as many hazardous chemicals as possible.

This combination of factors may de facto lead the EU to bring (and strengthen) European standards into the international arena and possibly set the stage for a renewed global chemical policy.

 

[1]Regulation (EU) 2019/1021 of the European Parliament and the Council of 20 June 2019 on persistent organic pollutants, available at https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32019R1021.

[2]Art. 2 of Regulation (EU) 2019/1021 of the European Parliament and the Council of 20 June 2019 on persistent organic pollutants.

[3]The provisions of the Convention require each Party to: (1) prohibit and/or eliminate the production and use, as well as the import and export, of the internationally produced POPs that are listed in Annex A of the Convention (Article 3); (2) Restrict the production and use, as well as the import and export, of the intentionally produced POPs that are listed in Annex B to the Convention (Article 3); (3)Reduce or eliminate releases from unintentionally produced POPs that are listed in Annex C to the Convention (Article 5); (4) Ensure that stockpiles and wastes consisting of, containing or contaminated with POPs are manged safely and in an environmentally sound manner (Article 6); (5) To target additional POPs (Article 8).

[4]Proposal for a Regulation of the European Parliament and of the Council on persistent organic pollutants (recast), March 2018, available at https://ec.europa.eu/info/law/better-regulation/initiatives/com-2018-144_en.

[5]For more details, see A. Majer & S. Abdel-Qader, “How the POPs recast became a political battleground”, November 2018, available at .

[6]See among others AmChamEU, “EU POPs Regulation Recast: An opportunity to improve POP management in the EU”, April 2017, available at https://www.amchameu.eu/system/files/position_papers/env_pop_recast_final.pdf; CEFIC – European Chemicals Industry, “Cefic views the Recast of the Persistent Organic Pollutants (POPs) Regulation as an opportunity for the EU to improve its approach to the nomination of new substances under the Stockholm Convention”, March 2017, available at https://ec.europa.eu/info/law/better-regulation/initiatives/com-2018-144/feedback/F11627_en?p_id=198418.

Selma Abdel-Qader

Laureata in Giurisprudenza all’Università di Bologna nel 2013 con 110 e lode con tesi in diritto internazionale, consegue nel 2016 doppio Master in Diritto Internazionale alla Facoltà di Legge dell’Università di Georgetown e in Politiche Ambientali alla Scuola di Affari Internazionali di Parigi - SciencesPo. Ha completato tirocini al Tribunale Speciale per il Libano a L’Aia, al Center for International Environmental Law a Washington D.C. e alla Commissione Europea a Bruxelles. Ha lavorato per due anni in quanto consulente per compagnie multinazionali, associazioni di imprese e organizzazioni non governative in una compagnia di public affairs e comunicazione a Brussels, specializzandosi in sostanze chimiche, economia circolare, sostenibilità, product design, settore tessile, commercio internazionale e diritti umani. È iscritta all'Ordine degli Avvocati di Bologna da Ottobre 2020 e, da gennaio 2021, all'Ordine degli Avvocati di Bruxelles in quanto avvocato stabilito. Lavora come Associate presso Fieldfisher LLP., a Bruxelles, nel dipartimento EU Regulatory, Competition and Trade, dove si occupa della legislazione europea in materia di sostanze chimiche, prodotti fitosanitari, legislazione sul prodotto e dispositivi medici.

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