EU Ombudsman criticises Commission failure to disclose full REACH revision impact assessment

Corporate Europe Observatory first requested documents including the REACH revision impact assessment (IA) Sidenote For more information on impact assessments, the role they play in EU decision-making, and why they are often seen as controversial, check out: https://corporateeurope.org/en/better-regulation-corporate-friendly-deregulation-disguise in November 2022. Frustratingly only a heavily-redacted IA, annexes, and Regulatory Scrutiny Board (RSB) opinion were disclosed. The RSB plays a controversial role in EU decision-making: it assesses all IAs on legislative proposals, before the proposals are finalised by the Commission, and has the power to reject those that it considers incompatible with the EU's Better Regulation agenda.

The Ombudsman’s ruling

On this 'access to documents' case, the Ombudsman has today concluded that:

• "none of the arguments presented by the Commission justify the refusal to provide full public access to the requested documents in line with Regulation 1049/2001 and the case law of the EU Courts"
• "the Commission’s refusal to grant full access to the requested impact assessment and RSB opinion related to the revision of the REACH Regulation constituted maladministration"
• "this case is another example of the significant and systemic delays the Commission encounters in dealing with confirmatory applications"
• "this case exemplifies how crucial it is for citizens to have timely public access to legislative documents, so that they can exercise their democratic right to influence EU law making.”

There is more information in the Ombudsman's recommendation, the original 'access to documents' request by Corporate Europe Observatory, and our subsequent complaint.

Corporate lobby target

The promise to revise and strengthen the EU’s most important chemicals legislation REACH  SidenoteREACH – the EU’s flagship chemicals regulation from 2007 – is the registration, evaluation, authorisation and restriction of chemicals. It aims to improve the protection of human health and the environment through the better and earlier identification of the intrinsic properties of chemical substances. was first made in October 2020 but has been delayed for a year, and has still not seen the light of day.

The original intention of the REACH revision included a "ban [on] the most harmful chemicals in consumer products, allowing their use only where essential”. But the heavily redacted IA indicated that there had been some worrying backsliding on the Commission’s ambition. It suggested that the proposal will now only focus on situations of high public exposure to harmful chemicals in consumer products, leaving 99 per cent, 90 per cent, or 50 per cent of consumer products containing the most harmful chemicals untouched by the new rules.

This backsliding appears part of a pattern from the Von der Leyen Commission, considering the fanfare with which the European Green Deal was launched and then the reality of its progress in tackling our dependency on fossil fuels or reforming agriculture by cutting pesticide use. It must also be seen in the context of the firepower and influence of the Big Toxics lobby and its efforts to ensure that the burden of toxic chemicals sit with society rather than those who produced them. Corporate Europe Observatory has mapped some of the corporate lobbying (see here and here) opposed to a strong revision of REACH, which has also been the target of right-wing politicians.

Vicky Cann from Corporate Europe Observatory responded to today's ruling:

“We entirely agree with the European Ombudsman that, in cases such as the REACH revision, full impact assessments should be made public in a timely way. Furthermore, the entire opinion of the controversial Regulatory Scrutiny Board on the IA should also be published in real time to boost transparency and accountability of this opaque body. There has been substantial corporate lobbying and political pressure on the Commission during the process to develop the REACH revision proposal. It is now imperative that both the impact assessment documents and the REACH revision proposal itself are published immediately. Yet more delays will only further play into the hands of the toxics industry.”

STOP PRESS! 18 March 2024

The Ombudsman has now confirmed her ruling of maladministration. Read more here.