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During the Covid crisis, there were intense societal debates about how to agree on what is ‘essential’, while at the same time highlighting the temporal fragility of this concept.

While the concept of “essential use” is not new, as it has its roots in the Montreal Protocol and has been applied to some extent in the Biocides and Pesticides Regulation, its conceptualization is now considered in a new broader and more generic way.

Following DG Grow’s Director, Kristin Schreiber‘s keynote speech, it can be expected that essential use will be considered in the context of a “screening step at the level of Commission expert groups or committees such as CARACAL or the REACH Committee” which would identify “clearly essential and clearly non-essential uses for which a detailed scientific and technical assessment is not required” with the aim of “simplifying and speeding-up decision-making“. This would mean that clearly identified non-essential uses could face an accelerated restriction process (i.e. if not essential, then no need to even review if there are alternatives or the risk is controlled). How to implement this concept is still “open for discussion“. The Commission also clarified that this concept would be developed at the level of the product and not at the level of the substance.

Otto Linher (DG Grow) further explained that a mechanism for the industry to apply for broad derogation will be implemented under the revised REACH regulation “this will give the chance to the industry to make its point and to prepare a dossier which will be then assessed in specific procedures. In that way, we are increasing the transparency compared to the current situation”.

But while transparency may be increased, this is mostly a reversal of the burden of proof, requiring industry to precisely clarify each use of a substance and the extent to which these uses can be considered essential, transferring a considerable amount of work on industries’ shoulders. This may jeopardize the feasibility of its implementation because, as Philippe Rolland (ACEA/Renault) pointed out, “it would require extensive collaboration and transparency along the supply chain, which could conflict with competition law“.

A proper assessment of alternatives, as well as the need to take into account the intrinsic properties of substances, in particular performance and durability, is needed. In this context, PFAS were taken as an illustrative example, although the forthcoming broad PFAS restriction should not be related to essential use, at least at this stage. This being, Otto Linher did not exclude that Member States could refer to it, should they wish.

In the energy sector, Jorgo Chatzimarkakis (Hydrogen Europe) explained that to be able to develop alternative sources to gas and power, we need to invest in hydrogen. To increase its production capacity, there is a critical need for PFASs, “as there are no alternatives to PFSEs and PTFEs in hydrogen production“. The added value of PFAS has also been greatly illustrated in the automotive and insulation sectors.

Additionally, the speakers called the Commission to consider existing regulatory framework over life cycle stages. “From the manufacturing process to end use and waste disposable, there are many legislations which are now connecting the dots and it is extremely important to make sure that we take stock of what is being performed in other DGs and areas as part of the discussion on essential use”, stressed Arnaud Duvielguerbigny (PU Europe).

Finally, the Commission’s mention that safety will be taken into account in the essential use discussions was particularly welcome, with Kristin Schreiber pointing out that there are currently considerations as to whether “in addition to the essential use exemption, a safe use exemption should be established“. However, clarifications are still urgently needed, as disproportionate and insufficiently parametrized conceptualization of essential use could seriously affect the European industry.

Pascal Michaux reminded that the essential use concept should not turn to be another type of ‘precautionary principle’ which would impact disproportionality the EU industry and its competitivity in a challenging time for the globalization of the economy.

Did you miss our event? Check out our streaming link posted here.

28 APRIL 2022   |   10.00-13.15 CET