The European Court of Justice (ECJ) has upheld the European Chemicals Agency’s (ECHA’s) decision to list several substances as “substances of very high concern” (SVHC). Bilbaína de Alquitranes SA v. ECHA, No. T-93/10 (E.C.J. 3/7/13). At issue was ECHA’s placement of anthracene oil, anthracene oil (low), anthracene oil (paste), and coal tar high pitch on the SVHC list, a decision which signals that these substances may be banned in the future. ECHA had identified the chemicals as SVHCs after concluding that they were either persistent, bioaccumulative and toxic (BPT), or very persistent and very bioacccumulative (vPvB). Companies throughout the European Union sought a partial annulment of ECHA’s decision.

ECHA initially raised an issue of first impression, arguing that the case should not be heard because the listing action was not of the nature allowed to be appealed. Rejecting this argument, ECJ found that listing the chemicals would have legal consequences and, therefore, was the kind of action subject to challenge. The court also found that although the listing decision was not addressed to the challenging parties, it directly affected their legal situation, leaving no discretion to regulatory authorities in applying it.

ECHA also argued that the decision was not of individual concern to the applicants because the environmental risks it found were “not created by the contested decision,” but were inherent in the substances “which the applicants should have assessed and been aware of before the adoption of the contested decision.” ECJ disagreed, holding that the challengers had a right to raise their concerns in court insofar as ECHA’s determinations that the substances exhibited PBT and vPvB properties “constitute[] new information . . . capable of triggering the obligation” to update safety data sheets and thus were of direct concern to the challengers.

Turning to the listings themselves, however, the court upheld ECHA’s decisions, ruling that it was appropriate to assess each of the substances based on their constituents rather than on the complex substances themselves, and that the determination did not breach the principle of equal treatment.