Lessons in Comitology – Challenges in relation to chemicals

28th June 2019 by Aaron

Just before the new European Parliament starts work, it’s a good time to look at the successful challenges to secondary legislation dealing with chemicals by the European Parliament.

I have looked at five successful challenges in the last Parliament: four REACH Authorisations and one RoHS exemption.

The Council did not raise any objections on secondary legislation about chemical substances.

Some General Observations

Reading the objections they focus on:

A substantive error of law
Procedural errors
Ignored something obvious that should have been taken into account

Most of the successful challenges, in general, are around public health issues.

In the main, they mirror the three grounds to challenge a RPS draft: 1. excess of implementing powers, 2. Violation of the aim or content of the legislation, and 3. violation of subsidiarity or proportionality.

It is not easy to mount a successful challenge. The challenge has to be launched quickly after the Commission transfers the text to the European Parliament. It is clear that challenges are not launched on a whim. They are not vexatious.

The challenges secure cross Party support, although the challenges are launched by the Greens and S&D. The size of support in the environment committee and in the full Parliament is often considerable.

If you want to challenge a measure, you are going to have to jump over some very high procedural hurdles.

In the European Parliament, you are going to have to:

Find someone to support you
Get it past the lead Committee (environment for chemicals), and if passed
Get 376 votes for RPS and Delegated acts or majority for implementing acts. To see how hard this threshold see this piece on Canadian Oil Sands challenge

Specific Observations

First, the challenges are specific, well reasoned and detailed.

Second, they often highlight the availability of substitutes.

Third, they ask for a more narrow authorisation rather than a simply scrapping it. Indeed, in some, they acknowledge that need for some uses but draw a line about broad or generic derogations.

Finally, one person is behind every successful challenge.