Did you know that the European court has made an annulment that can have fare stretched influences for the paint and coating industry?

The European Court of Justice in April 2023 annulled an upstream authorisation for several uses of chromium trioxide resulting in many downstream companies in the chrome-plating and surface treatment sectors seeking alternative solutions. This annulment is expected to lead to over 1,000 individual use applications in the next five to ten years as companies seek authorisations for use. 

In response,  the European Commission has mandated the European Chemicals Agency (ECHA) to develop a REACH Annex XV (Restriction) dossier for at least two chromium VI substances: chromium trioxide and chromic acid. This is the first time under REACH where substances are being shifted from the Authorisation list to a Restriction dossier.

Currently, there are 11 chromium VI substances on the authorisation list.  More could in the future be moved to a Restriction. ECHA will continue processing authorisation applications for chromium VI substances until their transfer from the Authorisation to the Restriction list.   Existing authorisation decisions will remain valid until the transition is complete.

Derogations for the Restriction may be applied for in individual use cases depending on different factors, such as risks, socio-economic factors, and the availability of alternative. Below, you can find a summary about the

This document from the European Commission provides information and answers to key questions regarding the regulation of Chromium(VI) substances under the REACH (Registration, Evaluation, Authorization, and Restriction of Chemicals) framework. Below is a summary of the document, tailored to explain it to you.

European Court of Justice Judgment (Case C-144/21):

• In this case, the Court partially annulled the Commission’s Chemservice decision, which granted authorizations for various uses of Chromium(VI) substances under REACH.
• The annulled decision remains in effect until April 20, 2024, and this judgment has specific implications for the future management of Cr(VI) substances.

Key Findings from the Judgment:

• The Court’s decision highlighted the need for detailed descriptions of the applied use of Cr(VI) substances and the justification of specific functionalities.
• It emphasized the importance of accurate exposure data in risk assessments.
• The Commission is required to consider data representativeness, especially for applications covering multiple sites.

Commission’s Next Steps for the Chemservice Decision:

• The Commission will prepare a new draft decision for uses affected by the Court’s judgment.
• This decision will be discussed with Member States in the REACH Committee before final adoption.

4. Handling Delays Beyond April 20, 2024:

• If the Commission does not make a new decision by this date, operators can continue using Cr(VI) substances under specific conditions.
• Authorizations’ obligations no longer apply after this date.

5. Impact on Other Pending Applications:

• The Commission is assessing other pending authorization applications to determine whether they are affected by the judgment.

6. Impact on Granted Authorizations:

• Existing granted authorizations benefit from a presumption of legality but can still be reviewed by the Commission.
• Most relevant authorizations either have already expired or will expire.

7. Handling the Chemservice Review Report:

• After April 20, 2024, the review report submitted by Chemservice becomes void.
• The Commission will treat it as a new application, which does not benefit from transitional arrangements.

8. Status of the Application for Functional Chrome Plating:

• A decision is pending on this specific application.

9. Status of the Authorization for Passivation of Tin-Plated Steel:

• The judgment has no effect on this authorization, which remains valid until its expiration.

10. Restriction of Cr(VI) Substances Under REACH:

• The Commission has initiated a process to restrict Cr(VI) substances under REACH due to the high number of authorization applications and delays in decision-making.
• The aim is to protect human health and the environment, encourage alternatives, and address risks efficiently.

11. Reason for Restricting Cr(VI) Substances:

The sheer volume of authorization applications and resulting delays, along with the lack of demonstrated alternatives, necessitates a change in the approach to protect human health and the environment.

12. Timeline for Restriction:

The restriction process involves multiple steps, and it is expected to take approximately three years from the receipt of the mandate by ECHA.

13. Scope of the Restriction:

The scope of the restriction will cover all uses of Cr(VI) substances and may be extended to prevent regrettable substitution.

14. Handling Existing Authorizations:

Existing authorizations will be reviewed, but any derogations may not necessarily align with granted authorizations.

15. Restriction Process:

The restriction will require two regulatory acts: one to remove substances from Annex XIV and another to introduce the restriction in Annex XVII. These acts will need to enter into force simultaneously.

16. Management of Cr(VI) Substances Pending Restriction:

The current regulatory framework will continue until the substances are removed from Annex XIV, after which they will be regulated under the Restriction Title of REACH.

17. Impact on Other EU Legislation:

This exercise does not affect other ongoing actions under different EU legislations such as the Industrial Emissions Directive (IED) and Occupational Safety and Health (OSH). Discussions are ongoing about lowering occupational exposure limits for Cr(VI).