On 21st December Symphony commenced a legal action against the Commission, Parliament, and Council of the European Union (“EU”) in relation to their decision to adopt Article 5 of the Single Use Plastics Directive 2019/904 (“the Directive”). Symphony has been advised by three Barristers, all experts in EU law, that this part of the Directive is confusing and illegal, and substantial damages are being claimed.
The written proceedings are now closed, and Symphony is awaiting a date for a hearing before the court in Luxembourg.
As reported in Symphony’s half year results on 14 September 2020 The … Directive adds to the confusion as it requires EU members to ban oxo-degradable products that do not properly biodegrade and are not recyclable with ordinary plastics. We have explained the difference between oxo-degradable and oxo-BIOdegradable plastic but the Directive has not made this clear. Symphony’s d2w plastic is oxo-BIOdegradable not oxo-degradable.
We believe that Symphony’s d2w technology would achieve considerably better traction both within the EU and outside Europe if we could resolve this confusion. It should be noted that due to Brexit, the UK need not implement the Directive at all unless it wishes to do so.
Symphony’s d2w technology causes ordinary plastic to degrade if it gets into the open environment and then to biodegrade in the same way as nature’s wastes. It can be recycled if collected during its useful life. It has been validated for degradability, biodegradability, non-toxicity, and recyclability by 40 years of research, most recently by scientists at Queen Mary University, London and at LOMIC (Laboratory of Microbial Oceanography) in France, in February and October 2020 respectively.
The main purpose of the Directive is to ban single-use plastics most often found on the beaches, but there is no evidence that oxo-biodegradable plastics have been found on the beaches or anywhere else.
Symphony is advised that the ban is illegal because there has been a failure to accord due process, and because it is disproportionate and discriminatory.
The EU has a well-established procedure, set out in the REACH Regulation 2006/1907, for determining whether substances should be banned. This procedure was designed to avoid the kind of arbitrary action which has occurred in this case.
In December 2017, in compliance with the procedure, the EU Commission requested the European Chemicals Agency (“ECHA”) under Article 69 of REACH to investigate its concerns regarding microplastics. Symphony submitted scientific evidence to ECHA on oxo-BIOdegradable plastic and ECHA also received a report from Intertek. On 30 October 2018 ECHA said that they were not convinced that it created microplastics.
The Commission then made the extraordinary decision on 8 May 2019 to terminate ECHA’s investigation and the EU proceeded to impose a ban effective from 3 July 2021, citing microplastics as a reason. In doing so, they ignored the advice of ECHA, their own scientific experts – never before has an ECHA investigation been circumvented by legislation.
Only if ECHA had recommended a restriction, supported by the detailed dossier prescribed by Annex XV of REACH, the recommendation would have had to be considered by two committees under Articles 70 and 71 of REACH, and also by a stakeholder consultation under Article 71(1), before any restriction could be proposed under Article 73. None of these procedures prescribed by EU law have been complied with.
THE COURT CASE
Symphony’s Board has not taken this action lightly, but the way the EU has behaved and the resultant confusion and damage to our business is unacceptable. We will not accept restraint of trade without due process, non-discrimination, proportionality, and scientific justification.
The EU fails to acknowledge that the billions of persistent microplastics in the open environment, including the oceans, are actually coming from the fragmentation of ordinary and bio-based plastics which have not been upgraded with oxo-BIOdegradable technology.”
It is important to note that Symphony’s d2p business is not directly affected by the Directive. d2p is a wide range of products, which include technologies that give plastic, rubber, and silicon anti-bacterial and anti-viral properties, and is an increasingly important part of Symphony’s overall business. These are among the few materials commonly used which can themselves (as distinct from painting and spraying) be made to destroy viruses on contact within one hour – before they can enter the human body. The demand for antiviral plastic is growing at a rapid rate all around the world, and making it biodegradable with d2w will help to protect the environment as well.
CEN-European Committee for Standardisation have established the following definitions in TR15351:
1 – Oxo-degradation is ‘degradation resulting from oxidative cleavage of macromolecules.’
2 – Oxo-biodegradation is ‘degradation resulting from oxidative and cell-mediated phenomena, either simultaneously or successively.’
Oxo-biodegradable plastic film (polyethylene, polypropylene and all their combinations), incorporate a catalyst that ensure fast oxidative (abiotic) cleavage of its macromolecules, so it will become biodegradable by cell-mediated phenomena (bacteria and fungi) in the environment much more quickly than ordinary plastic. Heat and UV radiation (sunlight) will accelerate the abiotic process, but they are not essential.