DG GROW is about to propose 13 new chemical substances to be phased out and banned.
If you are a customer of these substances you will likely have no idea that it is happening. And, unless Directorate General (DG) GROW and Environment make some unforeseen procedural error or scientific error, you are only going to find out in a few months time that a substance that was vital for you is going to be banned.
You could have found out if you are part of a very large company and could afford to pay for staff to track the consultations of Europe’s Chemical Agency. But, if you are company focused on the business of business you are going to be in for a very nasty surprise.
Europe’s chemical law, known as REACH, have a big impact. British small and medium-sized companies rate it as the second most difficult piece of EU law to deal with (after the EU’s working time laws). All too often, companies find out very late in the day from their supplier that a substance which is a vital ingredient of their production process is going to be banned.
Last Chance Saloon – Better Regulation To the Rescue?
There is a basic problem with how the EU passes chemical bans. They are adopted in relative secrecy.
You don’t know when the Commission is putting forward the proposal to phase out a substance. It is not listed anywhere online. Some in the Commission are genuinely surprised that people busy making a living in tough markets are not constantly following the work of the Chemical Agency in Helsinki and tracking the state of play on what is likely to be hundreds, if not thousands, of chemical substances that they use.
The Commission’s new Better Law Making rules offered a ray of hope that people impacted by these bans and restrictions could let the powers that be know of some important use that was at stake. Under the Commission’s self-commitments under the Better Law Making Agreement, the Commission would be required to subject proposals to validation, Road Maps, impact assessment and pre-proposal adoption public consultation.
Under these rules, there is no reason that draft delegated or implementing acts for substance bans and restrictions – that impact thousands of users, even if the substance bans or restriction, may only be targeted at one or a few producers – could not be subject to the Better Law Making self commitments. Even the use of the validation, Road Map and the public consultation before the College of Commissioners adopted a proposal for a substance ban or restriction, and adding 4 extra weeks to a process that has taken a few years is not a major hurdle.
How to stop Vice-President Timmermans being hoodwinked
It may even alert Vice-President Timmermans of some life saving use of a substance that is going to be banned and put lives at risk. Stranger things have happened. He has is meant to be against the seeming never-ending flow of Commission proposals from what at times seems to be a self-directing Commission Services, immune from political control by the Commissioners, let alone the President and his Vice-President.
At the moment, the Vice-President and other Commissioners will only know if there is an issue if the DG Grow and Environment write in their papers that there is a problem. They tend not to highlight any problems with their proposals. As these two department exclude substances bans and restrictions away from the screening process of Better Law Making, from the provision of Road Maps to let alone Impact Assessments and even a final 4 weeks public consultation, you can understand why the College of Commissioners have very little idea about the bans and restrictions they are signing off on.
Why Officials Prefer Secret Law Making
I can understand why civil servants, focused on administrative efficiency, would seek to persuade Vice-President Timmermans that substance bans and restrictions should not fall under the Better Law Making rules. Impact Assessments, listing on Road Maps, being subject to public consultation screenings, should not impede the phasing out of some chemical substances.
These diligent officials will say, in some cases fairly, that most users and producers have been following the process through ECHA. The bans and restrictions are no surprise. They’ll claim that these legal measures are of individual impact and should not be subject to this process. It would, to the uninitiated, seem fair to create a small but extra check and balance.
Unfortunately, as I have sought to imperfectly explain, there are many good reasons why people using chemical substances for vital purposes will have missed the ECHA process. The last chance of letting the European Commission, beyond the masters of the file at DG GROW and Environment, that some vital use has been overlooked and will be snuffed out with the ban or restriction, seems only fair. It sounds only rational if the Commission is serious about Better Law Making.
Member States in the Dark
The Members of the Member State Committee that first votes on the Commission’s proposal are not make public. The proposal is not public until the Member State Committee vote on it. Some Member States, with more developed traditions of open law making, make consult their national trade associations.
Open Law Making Can Happen
Substances bans under the RoHS Directive are done differently. Public Consultations are organised by the Commission. This can, and does, lead to unknown uses being made public, and can lead to proposals being altered.
We will know on 1st July, when the Better Law Making self commitments come into force, whether the forces of open law making have won in the Commission.