About one year ago, in January 2018, the European Union adopted the first-ever Union Plastic Strategy in which the European Commission acknowledged the growing problem of microplastics for the aquatic environment. Microplastics are miniature plastic particles that are used in a range of products placed on the EU market and once they have been washed-off from the skin and entered the environment, they remain there forever. The recent project for the European Commission estimated that 176 300 tonnes of microplastics are released from products to the environment each year. To address the problem, the Commission requested the European Chemicals Agency (ECHA) to review the scientific basis for regulatory action at the Union level. Now, one year later, the European Chemicals Agency has submitted a restriction proposal for microplastic particles.
In parallel to the action at the Union level, various Union Member States have taken precautionary measures to ban the use of microplastics in cosmetic products. Most recently, the United Kingdom banned the manufacture of rinse-off cosmetic products containing microplastics on 9 January 2018, and, five months later, it prohibited their supply. Similarly, Sweden has announced its plan to restrict the sale of rinse-off cosmetic products that cleanse, exfoliate or have polishing functions and contain microplastics. Also, in Finland a citizens’ initiative was made to ban the use of those tiny plastic particles in cosmetic products.
Since the new proposal would be a harmonization measure adopted under the REACH Regulation, the question raises what would the consequences of a possible restriction be for Member States’ current and future action as regards microplastics? For instance, would they be entitled to regulate microplastics more restrictively than the Union restriction if the restriction adopted at the Union level proves inadequate?
The proposed restriction applies to intentionally added microplastics in products from which they are inevitably released to the environment. Microplastics that are less than 5mm and synthetic polymer particles that resist (bio)degradation are covered. The scope covers products in multiple sectors, including cosmetic products, detergents, construction materials and medicinal products, as well as various products used in agriculture, horticulture and in the oil and gas sectors. The Union restriction bears resemblance to the current national restrictions on microplastics in that it applies also to rinse-off personal care products. In addition, the restriction report states that the measure would be justified for other rinse-off and leave-on cosmetic products, with respectively four and six year transitional periods.
The proposed restriction includes three types of measures. The first is the reduction on the placing on the market of microplastics both on their own and in mixtures where their use will result in releases to the environment. The second measure includes a labelling requirement that aims to minimise releases to the environment for uses of microplastics where they are not inevitably released to the environment, but where residual releases could take place if they are not diposed of or used appropriately. The third measure is a reporting requirement to improve the quality of information available as regards microplastics. This final measure is likely to enable the Commission and the Member States to consider if and to what extent additional action could be needed in the future. It is estimated that the proposed restriction will, all in all, result in a reduction of approximately 400 thousand tonnes of microplastics over the 20 year period.
Following the adoption of a Union measure on microplastics, Member States’ right to regulate microplastics will be comprehensively harmonised by the so-called REACH Regulation. This is because the restriction on microplastics will be adopted under the REACH Regulation, which provides a complete harmonisation of the conditions of manufacture, placing on the market and use of the substances covered by it. Thus, as a consequence of the adoption of a restriction, the manufacture, use and placing on the market of microplastics is prohibited. Similarly, the Member States are prevented from making microplastics subject to conditions other than those listed by the REACH Regulation.
Nevertheless, even after the adoption of a Union restriction, some room for regulatory action at the Member States’ level will remain. First, Member States are entitled to make the preparation, placing on the market and use of a substance subject to new conditions in urgent situations where the objective of the measure is to protect human health, or the environment. The second option for a national regulatory action following harmonisation is established by the Treaty on the Functioning of the European Union and, more specifically, by its Article 114. To this end, Article 114 TFEU draws a distinction between the notification under Article 114(4) TFEU of national provisions in existence prior to the adoption of a harmonisation norm and those which a Member State seeks to introduce after the harmonisation has taken place (Article 114(5) TFEU). The Court has held in regard to Article 114(4) TFEU that it does not entail ’a requirement that the applicant Member State proves that mainintaining the national provisions which it notifies to the Commission is justified by a problem specific to that Member State ́. This must be contrasted with paragraph 5 to Article 114 TFEU, which allows a Member State to seek to derogate from a harmonisation measure to introduce more stringent national provisions. In case of paragraph 5, four cumulative conditions must be met: firstly, there has to be new scientific evidence; secondly, that evidence must relate to the protection of the environment; thirdly, the action must be taken on grounds of a problem specific to the notifying Member State; and, finally, the problem must arise after the adoption of the harmonization measure.
As the Member States have a more onerous burden under Article 114(5) TFEU, it seems that it will be easier for Member States to maintain in force their current restrictions on microplastics under Article 114(4) TFEU than to adopt new ones Article 114(5) TFEU. Moreover, and in accordance with the purpose of the Union to attain a harmonised single market, the Commission and the Court of Justice of the European Union have consistently applied a very restrictive interpretation of derogations from harmonisation measures. As Vos and Weimer note,’both the Commission and the Courts have an extremely rigid reading of the procedure while the grounds for invocation are very limited’. Thus, despite the formal possibility for regulatory action on the part of the Member States, the practical possibilities of the Member States to regulate microplastics after the adoption of a harmonisation measure can be questioned.
As ECHA has concluded, Union action on microplastics is required in order to ensure a harmonised level of environmental protection and to ensure the free movement of goods within the Union and effective action to curb microplastic emissions.22 Thus, it is essential that the proposed restriction will, in the end, be adopted. The proposed EU restriction on microplastics seems ambitious with its wide scope and focus not only in restricting microplastics but also trying to gather information on how to tackle microplastics in a more efficient way in the future. If the proposed restriction will be accepted, it will apply to all the different actors, including manufacturers and distributors. However, it will remain as the Member States duty to supervise that the restriction will be enforced. In turn, whether there will be scope for national action as regards microplastics in the future depends on the interpretation by the Commission and the Court of the so-called safeguard clauses.
TEXT Heidi Kaarto
PICTURE Unsplash / Jonathan Chng
The author has a LLM degree in European Law from Leiden University and is specialised in the internal market of the EU. During her free time, she participates as a researcher in the Leiden Advocacy Project on Plastics.