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EUROPEAN UNION

We have never been able to understand how it was possible for the European Parliament to impose a ban on “oxo-degradable plastic” without any proposal from the Commission, without any impact assessment or socio-economic analysis, and without a dossier from the European Chemicals Agency (ECHA) showing any justification for any such ban.  The Commission had actually asked ECHA (under Art 69 of the REACH Regulation) to study whether these products created microplastics.  ECHA received hundreds of pages of evidence but they informed the BPA in October 2018 that they were not convinced that microplastics were formed.

The Commission’s draft Directive did not include any ban on oxo-degradable or oxo-biodegradable plastic, but the Parliament proceeded to legislate, and circumvented all the safeguards against arbitrary legislation provided by Arts. 69-73 of REACH.

This Directive has been challenged by Symphony Environmental in the European Court in Luxembourg.  The case was decided on 31st January 2024, and has attracted a lot of attention to Symphony’s d2w technology, which is enabling them to explain the technology to many more people around the world.

The reasons for the ban on “oxo-degradable” plastic are set out in Recital 15 of the SUP Directive, but they do not apply to d2w plastic. Nevertheless the wording of the ban had caused many people to think that it did apply, and Symphony decided to take legal action.

The first point we noticed about the judgment is that the court did not say that the EU had made a correct assessment of the technology. It simply held (incorrectly in our view) that the legislators had not exceeded the limits of their discretion.

As we all know, thousands of tonnes of plastic packaging get into the European environment and its coastal waters every month, and will continue to do so – unless the EU bans plastic altogether, which would be a very foolish thing to do.[1]

Symphony have therefore been trying for more than ten years to explain to the EU Institutions that the way to reduce the pollution problem is not to ban plastic, which really is the best material for the job, but to improve waste-management and make the plastic oxo-biodegradable, so that it will quickly biodegrade if it does get into the open environment.

We were thinking that the Commission had understood the point, as they did not include a ban in their draft Directive. If they had thought that this type of plastic might constitute a threat to human health or the environment, they would be justified in taking action according to the precautionary principle.  The correct action would be to refer the matter to their scientific experts, the European Chemicals Agency (ECHA), which they actually did.

However, when the draft Directive came before the Environment Committee of the Parliament, a ban was inserted without any Impact Assessment, without any socio-economic analysis, and without waiting for a report from ECHA, who were studying the technology at the time. They even disregarded the interim view of ECHA that microplastics were not formed by this type of plastic.[2]

Symphony have been aware for a long time that the large companies who market a different – and not very useful – type of plastic as “compostable” have been (and still are) lobbying hard against Symphony’s technology, so as to increase their own share of the biodegradable plastics market.  It is quite likely that the ban was inserted in Committee as a result of the efforts of these lobbyists.

When considering the Single-use Plastics Directive, the Environment Committee of the Parliament were not made aware of (or did not understand) that oxo-degradation and oxo-BIOdegradation are two very different things. [3]

The most disturbing feature of this court case is that evidence paid for by the Defendants such as the Eunomia literature-review, (on which the court placed much reliance even though it does not recommend a ban) – was acceptable to the court, but evidence from experts such as Intertek “has little probative value”  because it was paid for by the Applicants (This point is made nine times in the judgment!). However, as laboratories and expert witnesses have to be paid, how is a Claimant against the EU to adduce any expert evidence before their courts which has any “probative value?”  This places the Claimant at an impossible disadvantage, and fatally undermines the credibility of the Judgment, and indeed of the EU court system itself.

As to the technical assessment of the technology, the court confirmed that “if it is not to adopt arbitrary measures, which cannot be rendered legitimate even by the precautionary principle, the public authority must ensure that any measures that it takes, even preventive measures, are based on as thorough a scientific risk assessment as possible.”  And “the scientific assessment should be based on the best scientific data available.

However, the EU had not carried out “as thorough a scientific risk assessment as possible” and their scientific assessment was not based on “the best scientific data available.” They cannot be heard to say that the best scientific data was not available because they had themselves prematurely terminated the ECHA enquiry and had failed to make an impact assessment at all. Nor can they justify disregarding the views expressed by ECHA in October 2018 as to the non-formation of microplastics.

This is another reason why the Judgment is fundamentally flawed, and Symphony can correctly say that this is “arbitrary legislation which cannot be rendered legitimate even by the precautionary principle.”  It would however be a waste of time and money to appeal, as we no longer have confidence in the EU courts.

ECHA have never provided a dossier to support any ban on oxo-biodegradable plastic by the EU, and no evidence has been produced that microplastics from oxo-biodegradable plastic have ever been found in the environment.

The loser here is the environment, because ordinary plastic is still being used to make products which get into the open environment every day, where thousands of tonnes will lie or float around for decades. They should urgently be made with d2w oxo-biodegradable technology, so that they will biodegrade much more quickly and will not leave harmful residues.

[1] “Replacing Plastics with Alternatives Is Worse for Greenhouse Gas Emissions in Most Cases” https://pubs.acs.org/doi/10.1021/acs.est.3c05191  ; “ Closing the Perception-Reality Gap for Sustainable Fresh Food Plastic Packaging 2024” https://doi.org/10.1016/j.procir.2024.02.019   ; Denkstatt Report https://www.biodeg.org/wp-content/uploads/2019/11/aadfe6b5.pdf    “Plastic is Better than Paper” https://www.biodeg.org/subjects-of-interest/paper-bags/  Also, Life-cycle assessments by Intertek have shown that plastic has a better LCA than the other materials used for packaging https://www.biodeg.org/subjects-of-interest/life-cycle-assessments/   .  See also https://assets.publishing.service.gov.uk/media/5a7bff74ed915d01ba1ca7c7/scho0711buan-e-e.pdf

[2] Letter from ECHA to the BPA 30.10.18

[3] See definitions in CEN TR 15351