Posts Tagged regulation
Germany v Commission re toys: ECJ confirms that recourse to precautionary principle is no walk in the park.
The ECJ this morning held in Germany v Commission (for context see my earlier posting). On 1 March 2012, the European Commission only partially (and temporarily) granted Germany approval for upholding stricter limits on limit values for lead, barium, arsenic, antimony, mercury, nitrosamines and nitrosatable substances in toys (for the decision, see here).
The ECJ stood with Germany only in its appeal against the EC’s decision on values for lead: this decision was internally inconsistent (acknowledgement of higher public health protection in the German measures while at the same time unfounded (and vague) limitation in time for those German measures). However for all other substances, the ECJ rejected Germany’s appeal. In doing so it emphasises the burden of proof which the precautionary principle implies (often misrepresented by opponents of the principle). The review of the available scientific evidence shows first of all the challenges associated with the different methods employed by Germany cq the EC. The latter’s measures employ migration limits (migration being the amount of toxic substances not just released from the product but effectively absorbed by the human body), while Germany’s measures rely on bioavailability (the amount of chemical substances released from the product and available for human absorption, even if not all of that is necessarily effectively absorbed).
The ECJ supports the room for Member States to have divergent opinions on risk than those of the EC, however, it needs to show that the national measures better protect human health and do so in a proportionate way. The crucial shortcoming in Germany’s proof turned out to be that its exposure scenarios were, in the view of the ECJ, unrealistic (and not supported by further scientific reporting): they imply simultaneous exposure of a child to all possible toy safety Directive scenarios: dry, brittle, powder-like or pliable toy material; AND liquid or stocky toy material; AND scraped-off toy material.
Hum. That such simultaneous exposure should necessarily be unrealistic is of course open to debate. Many of us have tales to tell of children achieving the impossible with toys clearly not designed for the game a child or group of children might at some point concoct . (Reminiscent of the inherently flawed furniture endurance tests displayed by large furniture chains: I have always thought that letting our family loose on the displayed piece of kitchen, bathroom or dining room furniture would be a more realistic test than an engineered testroom).
As often with risk assessment and risk management: the final conclusion almost always remains open to discussion.
There is environmental law and then there is environmental law.
On the one hand of the spectrum, one finds highbrow discussions such as in Kiobel, where novel approaches to regulation culminate in the discussion of how one can, if one should at all, subject multinational corporations to the strictest standards of environmental and human rights law, wherever they operate. These issues speak easily to faculty, students, activists and governments.
On the other extreme, the recent European Commission illustrative list of packaging. It confirms that for instance, wax layers around cheese are not packaging within the meaning of the European packaging and packaging waste Directive. Flower pots are, if they are not intended to stay with the plant for the rest of its life. The list is, I fear, highly relevant. No packaging = no packaging waste laws = no obligations to reduce such packaging, no packaging levies apply, no waste management company needs to be recruited to deal with the waste, no permit required for export, etc. These issues are a bit less handy to entertain with faculty, students, activists and governments. They speak to CFOs and compliance managers, rather than to the media. Lest it be to bemuze or provide ammunition for those who consider the EU to be over-regulatory.
I find it is in pondering both ends of the spectrum that environmental law truly comes to life.
Geert (just in case you wondered: tea bags: not packaging).
Once more unto the breach – German action against Commission Decision on the Toy safety Directive provides a master class in EU law
Pre-script: this case is now known as Case T-198/12, and on 15 May 2013 the Court by way of interim measure ordered the Commission to grant approval to the German measures in full, at least until such time as a judgment on the substance has been issued. It made specific reference to the precautionary principle. The ECJ eventually held in May 2014.
I have always thought of legislation on, and trade in, toys, as a perfect illustration for many regulatory mechanisms worldwide. Prof Francis Snyder’s work (see e.g. here) is a perfect illustration of same.
This is no different for the general workings, and finer mechanics, of EU law. Once more, the sector hands teachers and practitioners of EU law a perfect illustration of harmonisation techniques, exhaustion (pre-emption) arguments, and judicial review.
On 1 March 2012, the European Commission only partially (and temporally) granted Germany approval for upholding stricter limits on limit values for lead, barium, arsenic, antimony, mercury, nitrosamines and nitrosatable substances in toys (for the decision, see here) [As an aside, it is often said that one should never watch laws and sausages being made. Reading that list of substances, prima facie (only) one might want to add toys to that list]. Germany has announced it will appeal that decision with the Court of Justice of the EU.
I can think of one or two areas for discussion: risk management and migration limits v bioavailability (or the cheese and chalk argument); limits to pre-emption; application of the ‘environmental and health guarantee’ of Article 114 TFEU, including the principle of proportionality. Expect that future judgment to feature in core readers of EU law.