Pending appeals from France and the European Commission, the classification of TiO2 stays

Reminders of previous episodes

On November 23, the European Union General Court (EGC) overturned the classification of TiO₂ as a category 2 inhalation carcinogen adopted in 2019, after many years of battles between the industry and the authorities. This judgment followed the actions filed in 2020 by manufacturers and users of TiO₂¹(Joined Cases T-279/20, T-283/20, T-288/20). This judgement is based on the fact that the studies on which the classification was established were not sufficiently “reliable” and because titanium dioxide is not “intrinsically” dangerous (respirable titanium dioxide powders, in the form of micro- and nanoparticles, are the most dangerous).

Upon the announcement of this annulment by the EGC, AVICENN and the CFDT immediately reacted to denounce this step as backward in occupational health protection: without relevant information on the potential danger incurred in the event of inhalation of TiO₂ particles, workers cannot take the necessary measures to protect themselves. Contrary to the adage “prevention is better than cure”, the industrialists have chosen to go against the application of the precautionary principle by asking for the annulment of the European classification. However, this classification (category 2) is less strict than the one initially proposed by ANSES (category 1B) and therefore does not restrict the use of the substance TiO₂: it only requires workers to be warned of the dangers of TiO₂ powders and dusts below 10,000 nm.

Appeals from both France and the European Commission

The public authorities had two months and ten days to appeal against the annulment pronounced by the EU General Court. However, they had little room to maneuver, as the appeal was legally limited to questions of law. This is quite extraordinary, since the judgment of the EGC includes numerous scientific considerations, on which France and the Commission would have had elements to oppose. Fortunately, after a long suspense, we learned on February 13 that an appeal had been filed by the French government on February 8, followed a few days later by another appeal filed by the European Commission* on February 14.

What is the competence of the EU General Court to assess the dangerousness of chemical substances?

The European Commission did not wish to communicate on its approach. On the other hand, the French Ministry of Ecological Transition and the Ministry of Labor drafted a press release published on February 13, which states that France considers that “the Tribunal exceeded the limits of its judicial review by making its own assessment and interpretation of scientific data”. Many share this opinion…

In a article published at the end of January in the specialized magazine EU Law Live, Weimer and Morvillo, lawyers from the University of Amsterdam, consider that “the Court went too far, overstepping the boundaries of ‘limited review’ of the administration’s technical discretion”, and that this “risks compromising the delicate balance between effective judicial review and the need to respect the institutional prerogatives of the EU administration”. They point out that the EGC “is not a super expert” and should return to a more humble approach regarding the control of complex scientific assessments: its judges have neither the scientific competence nor the legitimacy to question the assessment made by the experts of the European Chemicals Agency (ECHA).

The excessive influence of lobbies on the making and unmaking of regulations

Mr. Weimer and Mr. Morvillo also point out that, in this case, the annulment of the classification would only benefit a handful of economic stakeholders who have already devoted a great deal of resources to influencing the drafting of the regulations and then contesting the result, considering that the text adopted is not yet sufficiently to their advantage. In doing so, the judges “unintentionally aggravate the unequal participatory dynamics of EU regulation and litigation, to the benefit of economic stakeholders”.

Indeed, as soon as the appeals were announced, the titanium dioxide manufacturers’ federation (TDMA) communicated that its members “were disappointed” and would defend the case “vigorously” and asked, in addition, “that the related regulatory processes currently being undertaken by the EU authorities be halted pending the outcome of the appeal”.

Workers’ health on the line

The French authorities justify their appeal by stressing that the annulment of the classification by the EGC constitutes “a setback for the protection of the health of European citizens and workers who handle this substance”. France and the European Commission, as public authorities, are fully playing their role in protecting the interests of citizens and workers, who do not have the considerable resources that manufacturers can deploy on their side.

“By challenging the assessment of the competent authorities, the European judges are going against the interests and rights of workers; their decision must be revised,” says Aida Ponce Del Castillo, senior researcher at the European Trade Union Institute (ETUI), a research center of the European Trade Union Confederation (ETUC).

As indicated by the French authorities, the introduction of an appeal has a suspensive effect on the judgment of the EGC: the harmonized classification will therefore continue to apply (at least) until the outcome of this new procedure, which could last one to two years.

To be continued …