Authored by Joyce Costello, Compliance & Risks
In an action brought on 20 February 2020, Case T-113/20, the Bromine Science Environmental Forum (BSEF) lodged an application for an order of annulment of Commission Regulation (EU) 2019/2021 of 1 October 2019 laying down ecodesign requirements for electronic displays pursuant to Directive 2009/125/EC of the European Parliament and of the Council, insofar as it bans halogenated flame retardants.
The applicant, global representative of the bromine flame retardant industry, has presented 7 pleas of law in a bid to overturn the Regulation’s ‘unprecedented’ and ‘unwarranted’ restriction on halogenated flame retardants (HFRs) for electronic display enclosures.
In essence, BSEF contends that this ban is unlawful, and that the Commission exceeded the limits of its competence under the EU Ecodesign Directive by imposing restrictions on an entire class of substances that are within the scope of and controlled by other specific EU legislations (such as the EU RoHS Directive 2011/65/EU).
Pleas set out by BSEF in its application:
- The Commission breached Article 1(4) and Article 15(2)(c)(i) of the Ecodesign Directive, acted ultra vires and exceeded the limits of its competence, as well as prevented the effet utileof other EU law measures.
- The Commission breached the applicant’s rights of defence by banning the halogenated flame retardants for use in electronic displays through the Contested Regulation.
- The Commission manifestly erred in its assessment and failed to take all information into account, breached Article 15(1) of the Ecodesign Directive and failed in its duty to undertake an appropriate impact assessment when banning the substances
- Regulation (EU) 2019/2021 breaches the principle of legal certainty in that the applicant is placed in a position of unacceptable legal uncertainty.
- Regulation breaches the principle of proportionality.The ban exceeds the limits of what is appropriate, is not necessary to achieve the objectives pursued and is not the least onerous measure to which the Commission could have had recourse.
- Regulation breaches the principle of equal treatment – the ban is discriminatory vis-à-vis other categories of products and vis-à-vis other substances.
- The Commission breached Article 15(1) of the Ecodesign Directive and Article 5a(1) to (4) and Article 7 and 8 of Decision 1999/468/EC and acted ultra vires.
The contested ban is scheduled to come into force in March 2021.
Case T-113/20 may be tracked at http://curia.europa.eu/juris/fiche.jsf;jsessionid=C0176D2121C8E0C9CAAD8834C0C02221?id=T%3B113%3B20%