German announces ECHA’s draft intermediates guidance as law-breaking

Opposition against the proposed draft changes on ECHA’s intermediates guidance from the German industry body has been strongly expressed. Their claim was that the modified original proposal defies a 2017 court ruling. This modification made earlier has drawn censuring from the industry as well as concerns from Glass Alliance Europe, calling for ECHA and the Commission to reconsider and to correct ECHA’s interpretation of the ruling.

In the hope of settling this long-lasting trade-off with industries, ECHA received flying criticism after ECHA and the Commission further curbed the number of permitted intermediate uses in an initial position paper via publication of this revision this March. Yet, the “main aim” conditions introduced still failed to meet the satisfaction of organizations such as BDI, where they disapproved of counting substance manufacturing as part of the transformation process, in which intermediate would partake.

This main aim was not the only part the Federation of German Industries (BDI) opposed to; other interpretations from ECHA regarding the concept of synthesis where transformation takes place, and to confine substances to controlled environments were also retorted by BDI. Seeing from the acrylamide judgement, BDI did not accept these additional conditions demanded, which in their opinion were beyond the legal requirements of REACH. Processes that have met all three cumulative conditions placed by the European Court of Justice (ECJ) could nonetheless still be excluded as their intended results are not solely substance manufacturing via synthesis. Towards this unlawful differentiation in chemical use, BDI thus called for ECHA to yet considerably amend the guidance.

On the other hand, supports for the draft guidance were seen from the Dutch National Institute for Public Health and the Environment (RIVM), basing on the draft’s positive potential to minimize the substance exposure of intermediate to the environment more strictly. Regarding the divided interpretation, RIVM suggested revisiting the definition under REACH to ensure the conditions as well as intermediate uses were comprehended in the same manner for all parties.

Though no official consultation had been requested, ECHA expressed their willingness to consider constructive comments irrelevant to the discussion on the principles as they only want to improve clarification and comprehension of the draft. ECHA showed reluctance to scrutinize comments on principles all over again, for the resources shall be reserved for legal text review.

The next Caracal meeting happening on May 20, 2022, is scheduled to endorse the document, where the current changes are deemed temporary until the definition of intermediates stated in REACH Article 3(15) is rescripted in the next revision of the law. If the endorsement fails, the updates will not be published; anyhow, since the guidance has not yet been considered fully aligned with the ECJ judgement, the updated version will likely be withdrawn.