EU Court backs Swedish trichloroethylene ban

Judgement seen further raising the status of health protection in EU chemicals policy

EU controls on the chlorinated chemical trichloroethylene are insufficient and member states can introduce unilateral general bans on the chemical's use for health protection reasons, the European Court of Justice (ECJ) ruled yesterday. The case is likely to influence forthcoming EU debate on trichloroethylene and has wider significance for chemicals regulation in general.

"The Commission submits that the [relevant dangerous substance control] directives, together with the risks evaluation regulation, create...rules on trichloroethylene... commensurate with stringent safety requirements and... sufficiently well developed to render any national prohibition superfluous. The court does not share that view," the judgement reads.

Trichloroethylene is a carcinogenic solvent used mainly as a degreasing agent in the metals industry. The ECJ case was prompted by a request from Sweden to intervene in a dispute between the Swedish national chemicals agency, which has operated a general ban on trichloroethylene with certain exemptions for 10 years, and a metal components manufacturer which wanted to continue using the chemical.

The firm's complaint that the ban contravened EU law was upheld by a local court, and the case was referred to Luxembourg. The ECJ ruled yesterday that since trichloroethylene was not covered by the relevant EU directive allowing the restricted use of certain dangerous chemicals, Sweden's ban was in fact legitimate as long as it did not contravene the EU treaty.

The treaty guarantees free movement of goods except when human health is threatened. The court said recent medical evidence showed trichloroethylene was a "serious health risk" and that Sweden's controls on it were "appropriate and proportionate".

The judgement comes as the European Commission works on proposals to restrict trichloroethylene following a risk assessment under the EU's existing substances programme. The Commission may now be forced to propose controls as strict as those in Sweden or lay itself open to legal challenge.

Delighted Swedish environment ministry officials said the "very positive" ruling also confirmed Sweden's policy of imposing general bans on dangerous chemicals alleviated by specific exemptions. "It really proves we have the right to prohibit on a national level," one said. An EU lawyer said the ruling was also significant because it reinforced the presumption that protecting health was more important than preserving a harmonised, open EU marketplace.

European chlorinated solvent association, Ecsa, said it was "disappointed" with the court ruling. It said recent studies showed trichloroethylene was not a cancer risk at current exposure levels and that recent life-cycle evaluations proved it was no more dangerous than water-based alternatives. Swedish use of trichloroethylene fell from 3,500 tonnes annually in 1995 to 193 tonnes in 1999, while western European production is about 80,000 tonnes, it added.

Follow Up:
European Court of Justice, tel: +352 43031; see also the full text of the judgement in case C-473-98 and a press release; Ecsa, tel: +32 2 676 7211.

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