By Kris Pollet, director EU law & policy, Pollet Environmental Consulting EETimes Supply Network (04/08/2008 1:35 PM EST)

Brussels, 3 April 2008

Analysis of the Court's April 1 judgment in the case brought by the European Parliament and Denmark against the Deca-BDE exemption shows that the Court doesn't speak out against nor in favour of the comprehensive risk assessment of the substance.This risk assessment, in which the UK played a significant role, basically came to the conclusion that it was safe to use Deca in current applications.

The Court's judgment annuls the European Commission's exemption decision on the basis that it didn't follow the rules or procedural requirements that are laid down in the RoHS Directive itself. More specifically, it didn't properly follow Art. 5.1.b of RoHS. This requires that an exemption may be granted if it has been established that a ban or a substitution (of the targeted substance) is "technically or scientifically impracticable" or "where the negative environmental, health and/or consumer safety impacts caused by substitution are likely to outweigh the environmental, health and/or consumer safety benefits thereof".

As a matter of fact, the Commission based its exemption decision (Decision 2005/717/EC of 13 October 2005) almost entirely on the risk assessment of Deca-BDE which showed that there was no need for further risk reduction measures beyond those already in place. It didn't examine whether banning the substance would be impracticable, nor did it establish that substitutes could bring with it more negative consequences than continued use of Deca.

This begs the question as to what the Commission's next step might be, if any. The bromine industry, through its trade association Bromine Science and Environment Forum (BSEF), is suggesting that the Commission either comes up with a new exemption for Deca, or that it amends the RoHS Directive and deletes all references to Deca-BDE. It seems impossible for the Commission to do so before the date for the end of the Deca exemption which the Court imposes: 30 June 2008.

First of all, it would have to carry out the substitution assessment referred to above. If the Commission manages to quickly propose a new Deca exemption, it will have to do so through the comitology procedure. When, in 2005, it proposed the Deca exemption to the relevant committee (i.e. the WEEE & RoHS Technical Adaptation Committee or TAC), it couldn't find a qualified majority in favour of the proposal. As a result of the procedural intricacies of the comitology process, a few months later it was nevertheless allowed to adopt the Decision anyway. It seems very doubtful whether, after this defeat in Court, the Commission would now be able to find a sufficient majority in favour of a quick new Deca exemption.

It is worth pointing out that in addition to Denmark, which brought the case before the Court together with the European Parliament, several other Member States intervened before the Court in support of Denmark: Finland, Sweden, Norway (which is technically not a EU Member State), and Portugal. And it seems even more doubtful that the Commission might find such majority, and survive the procedural deadlines (one of which is three months), before 1 July 2008.

The other option suggested by BSEF, to amend the RoHS directive, will take even longer because it would presumably have to go through the regular co-decision procedure which lasts on average a year and a half. Such a proposal would obviously need the support of the European Parliament, which attacked the Deca exemption in Court.

Even purely on a political level, one can wonder whether the Commission is even willing or prepared to "save" Deca-BDE. It is worth reminding that in 2006, the Commission issued an interpretation in which it said that Deca-BDE that was available on the market was in effect illegal because it contained too high a concentration of another PBDE as an impurity, namely nonaBDE.

See related article: European Court of Justice annuls Deca-BDE RoHS exemption