Many chemicals have hazardous properties that can harm the environment and human health and the EU’s Chemicals Strategy for Sustainability seeks to obtain a toxic-free environment. The EEB’s Secretary General, Jeremy Wates, took part in the European Commission’s High-Level Round Table on the Chemicals Strategy for Sustainability. Here is what he had to say.

  1. Is the Chemicals Strategy for Sustainability discussed at the EU High Level Round Table on 25 November 2021 reaching its aims in improving the well-being, high living standards and comfort of modern society in relations to chemicals regulation?

It definitely has the potential to do so. The European Chemicals Strategy plans the biggest upgrade of chemical safety laws in over a decade. Europe already has the world’s strictest chemical safety laws, but they are slow to be rolled out, are poorly implemented and fail to curb rising chemical pollution. So, the EEB welcomes this toxic-free environment strategy and its zero-pollution goal. It has the potential to rapidly phase out vast amounts of toxic substances that are building up in European homes, workplaces and environment. The Commission now needs to turn this template, this declaration of intent, into action.

  1. How important is the role of NGOs like the EEB in enforcing the Chemicals Strategy for Sustainability and what more can be done to improve the synergy between NGOs and chemicals enforcement bodies?

NGOs such as the EEB can support the enforcement of chemicals laws in different ways. By engaging with chemical enforcement bodies alongside academics and other civil society organisations, NGOs are able to advocate well informed positions, they can notify the enforcement bodies of any breaches based on scientific evidence and they articulate civil society’s key demands, which the enforcement bodies can then act on. A good example of this was when the EEB highlighted evidence of widespread non-compliance with the ECHA registration rules, which following high profile media coverage led to ECHA setting a higher benchmark in its measures to ensure compliance.  But NGOs can also play a more direct role if they have the possibility to challenge breaches of chemicals legislation in the courts – something which is only possible if there is sufficient access to justice. There needs to be a bigger mention of public access to justice within the Chemicals Strategy for Sustainability implementation, if the European Union would like to improve synergies between NGOs and chemicals enforcement bodies. The public, including NGOs, play an important role in enforcement efforts and when breaches are identified recourse is needed in a timely fashion.

  1. How important will the contribution of civil society organisations be to enforcing chemical laws and are there any possible dangers if they are overlooked?

Citizens and NGOs can help enforce chemical laws by becoming authorities’ “eyes and ears on the ground”. There is an abundance of evidence to show the benefits that derive when chemical enforcement bodies are supported by civil society organisations and business associations. Production levels of chemicals have increased from 1 million tonnes in the 1930s to well over 500 million tonnes today. These chemicals are used to produce every single item, from cars, to toys, to kitchen utensils or clothes. With such an accumulation of chemicals in society it is important that civil society organisations have the right avenues to challenge violations of chemical laws.  The chemicals strategy should help NGOs and the wider public to develop their capacities to challenge violations of chemical safety laws, including through collective redress actions, but such enhanced capacities will be of little value if the legal avenues for such challenges are too narrow or do not exist.

  1. In the EU High-Level Round Table on the Chemical Strategy for Sustainability, you really emphasised the need for access to justice to empower consumers and whistle-blowers. Does the average citizen currently have the means to obtain justice if there are chemical violations and if not, what recommendations would you propose to change the current status?

The possibilities for the average citizen to seek access to justice if there are chemical violations vary considerably across Member States. In some, high costs are an obstacle; in others, legal standing is too narrowly defined. Even where there could be the opportunity for access to justice, it is sometimes difficult to know how to exercise this right. If the violations stem from acts or omissions at the level of the EU, the recently revised Aarhus Regulation finally allows for a wider range of decisions to be challenged, including in the field of chemicals. The revised regulation also allows for individuals, not only NGOs, to make these challenges. However, we still need to see how the revised Regulation will work in practice, including whether these new conditions will allow individuals to come forward in practice. If the average citizen wants to obtain justice for chemical violations in national courts, there are no harmonised rules on this, even though this right exists under the Aarhus Convention. We need EU rules that clearly stipulate how citizens can come forward to obtain justice in national courts so that this right can be exercised effectively in all the member states and a minimum level of protection can be guaranteed.

  1. In 2003 the European Commission proposed a horizontal directive for access to justice. What were the faults in the proposed directive and how can the European Commission learn from these lessons by implementing the Chemicals Sustainability Strategy? 

The Directive that was proposed was stuck in the Council for over a decade. It was not so much that there were specific flaws in the proposal, though as always there was room for improvement, but rather that there was no appetite from the Member States to pursue EU rules on access to justice at that time and the Commission eventually withdrew the proposal in 2014 after it had laid dormant for so long, as part of its deregulation agenda. Today, however, we find ourselves in a very different context. There is more and more awareness and calls from the public and NGOs to be able to challenge decisions that harm the environment, and decision-makers in some Member States are realising that this is an important issue for their own accountability. In 2019 we had a “green wave” in the European Parliament election results, and the current Commission committed to improving access to justice in the European Green Deal. It is a fundamental issue which strengthens all environmental strategies and commitments, as it ensures scrutiny and accountability. We are living in different times now, and it is more important than ever that we start working toward a horizontal directive for access to justice again.

  1. Are there any ripe opportunities to implement a meaningful access to justice provision that would enable European citizens to be empowered and highlight chemical violations when they take place?

In October of last year, the Commission issued its Communication on Access to Justice in Environmental Matters. Although this Communication provides excellent argumentation as to why a horizontal directive is needed, the Commission seems to still be too wary from its past experience to try to propose that. However, one of its priority areas is “to include provisions on access to justice in EU legislative proposals made by the Commission for new or revised EU law concerning environmental matters.” With the REACH Regulation up for review, the Commission must remain true to this priority and introduce clear rules that will allow the public to challenge decisions in relation to chemicals that harm people and the environment.

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