European Court of Justice annuls Deca-BDE RoHS exemption

On April 1st, 2008, the European Court of Justice (ECJ) annulled the decabromodiphenyl ether (Deca-BDE) exemption to the EU Restriction of Hazardous Substances (RoHS) directive, dated October 13th, 2005 (Decision 2005/717/EC), stating that the European Commission used an incorrect criterion, an EU risk assessment as the basis for exemption. This enters into force on July 1, 2008.

The decision is an important victory for the European Parliament and Denmark, which brought the case before the Court two years ago. Several other Member States intervened before the Court in support of Denmark: Finland, Sweden, Norway (which is technically not an EU Member State), and Portugal.

The court has found that the Commission has neglected to check whether substitutes were available to Deca-BDE and whether substitutes would have more negative effects than continuing with its use. The ECJ ruled that procedural errors, and not a lack of scientific support or safety data has led to the annulment of the exemption.

"The Court has found that the Commission used an incorrect criterion, an EU risk assessment, as the basis for exemption since that is not one of the criteria provided for by the RoHS Directive. The Court did not question, nor was it asked to decide on the correctness or otherwise of the risk assessment for Deca-BDE, and that the risk assessment is unaffected by the judgment. It is the RoHS Directive exemption, and only that exemption, which has been annulled and not the risk assessment. This means that flaws in the previous exemption process can be reviewed and corrected. It is important to stress that the exemption remains in force in order to allow this review to be carried out as a matter of urgency," stated former ECJ Judge Sir David Edward, in a comment on the ruling.

The consequence of the decision is that users of Deca-BDE will only have three months time to find alternative flame retardants and to change their formulations accordingly before the exemption expires.