General Court confirms that European Commission’s authorization of toxic lead paint in the EU unlawful

The General Court of the European Union has confirmed, in granting a final order this week, that the European Commission’s authorization of the marketing of toxic lead paint within the EU was unlawful. The decision follows a challenge brought by a coalition of European environmental organizations comprising ClientEarth, the European Environmental Bureau, the International Chemical Secretariat, and IPEN, represented by Anthony Jones of 4 New Square Chambers.

The case, T-436/17 ClientEarth and others v European Commission raised serious questions not only regarding the compliance of the Commission’s approval processes with the EU’s chemical approvals regime under the REACH Regulation but also as to whether that entire chemicals approvals regime, including the capacity for third party monitoring, was compliant with the EU’s obligations as a matter of public international law under the UN Aarhus Convention. Reflecting the significance of the case, the Kingdom of Sweden and the European Chemicals Agency both intervened in the hearing before the General Court.

Following the hearing but before the General Court gave judgment, the General Court dealt with a similar claim brought by the Kingdom of Sweden, and the appeal of that claim was determined in February 2021. As a result of that separate but similar claim, the European Commission’s authorization of the marketing of toxic lead paint has been struck down. The final order in the ClientEarth and others v European Commission claim confirms that position dispenses with the need for further argument, and vindicates the coalition of environmental organizations.

The separate issue of the compliance of the EU’s chemicals approval regime with public international law remains undecided, however. That issue has been raised in different litigation – this time relating to the approval of endocrine-disrupting ingredients in the recycled plastics industry – which is currently on appeal before the Court of Justice of the European Union in case C-458/19 ClientEarth v European CommissionAnthony Jones acts for ClientEarth in that case also, together with Jemima Stratford QC of Brick Court Chambers. A final judgment is awaited in those proceedings, the Advocate-General’s Opinion (recommending a finding in favour of ClientEarth) having been delivered in February 2021.