August 30, 2012
“He who learns but does not think, is lost!
He who thinks but does not learn is in great danger.” ~Confucius
As Euractive reported in its recent article„Danish Environment Minister Ida Auken has decided to ban four industrial chemicals linked to disrupting the human endocrine system, pushing Denmark ahead of the European Union which has already started a process of phasing out phthalates.”
What does it mean? Just after the end of the Danish EU presidency, Denmark strikes back: in order to protect health and environment, Denmark is ready to risk even an EU infringement procedure the outcome is questionable of.
From a legal point of view, it is highly probably that – formally – this Danish manoeuvre breaches the EU law. On the one hand, the protection of health and environment is of utmost importance.
This is what laid down in the precautionary principle “If an action or policy has a suspected risk of causing harm to the public or to the environment, the burden of proof that it is not harmful falls on those taking the action.”
On the other hand, it is our common interest not having dangerous chemicals on the EU market. There shouldn’t be health and environmentally inequalities on the EU market. The aim is that the protection of the cca. 495 million population of the EU would be at least as high as the level of protection of the 5 million Danish people.
(Photo: Toys containing phtalates © Alicia Voorhies)
Let’s be aware of the legal facts: the European Court of Justice is supposed to interpret the EU law in the last resort. And indeed, the ban of dangerous chemicals is urgent and important. But assuming that the Commission and the Member States did the job correctly by regularly updating the REACH regulation, let’s use the law of the Union to ban those phthalates in the future not only in a single but in all Member states.
Can the protection of health make an exception from that principles?
(Yes, it can, but only in exceptional and rare cases. In other words: the protection of health can overrule the respect of EU law but if this is the case the Danish Governments shall present convincing scientific arguments. In any other cases, the rule of law and the EU law shall prevail.
Denmark is not Hungary
I know that the two countries are not comparable because of quite many things. However, it is worth to play with the idea: will the Commission act against Denmark at least as harsh as it did against Hungary?
I don’t think so, since the nature of the Danish violation of the EU law is completely different. In case of Hungary, the democratic and common EU principles were put to the test. In case of Denmark, a relatively small Member States was fed up with the presumed “too light” EU policy as regards the ban of dangerous chemicals and made a brave but maybe not legally justified step.
Nonetheless, by doing so, Denmark would spat into the soup of powerful industrial players – as it already did with the inauguration of the fat tax. Therefore, this time the powerful industry may do some lobbying by the Commission for an immediate legal action.
The intentions are noble but maybe the Danish government didn’t choose the most appropriate legal tool.
Can a positive aim legalise the breach of EU law?
The respect of the EU law is one of the most sacred acquis communautaire.
Not respecting this value may undermine the long term stability of the EU based on rule of law.
My advise is the following
With full respect of the intentions of Denmark – I fully share – my piece of advise would be: let’s use the EU law (the REACH regulation) to ban those dangerous chemicals.
I remain at your disposal.
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Related earlier updates:Zoltán Massay-Kosubek