Keystone Law litigation solicitors Patrick Selley and Guy Harvey have commenced legal action on behalf of AIM-listed Symphony Environmental Technologies Plc against the Commission, Parliament, and Council of the European Union in relation to their decision to adopt Article 5 of the Single Use Plastics Directive 2019 (SUP).

Symphony Environmental Technologies Plc, a global specialist in supplying and developing technologies that make plastic “smarter, safer and sustainable”, believe that Article 5 of the Directive is confusing and illegal as the EU has not followed a well-established procedure, set out in the REACH Regulation 2006 for determining whether substances should be banned. The bioplastic company also believes that the reference to “oxo-degradable” plastics, which are to be banned under the Directive, causes confusion and has an adverse effect on its business. The company is claiming substantial damages.

The case against the EU focuses on two key points:

Confusion over “oxo-degradable” and “oxo-biodegradable”

From 3 July 2021, the EU will introduce a ban on oxo-degradable plastics through Article 5 of the SUP Directive. However, the European Commission has not made it clear that it does not apply to oxo-biodegradable plastics. Symphony believe that the EU has confused “oxo-degradable” and “oxo-biodegradable” in the Directive, which are two different technologies.

Symphony’s d2w technology is oxo-biodegradable, and causes ordinary plastic to degrade by oxidation if it gets into the open environment and then to biodegrade in the same way as nature’s wastes. However, under the current Directive, customers will be confused and Symphony’s business would be considerably restricted across the EU unless a clear distinction is been made between oxo-degradable and oxo-biodegradable technology.

Plastic made with d2w technology can be recycled if collected during its useful life. It has been validated for degradability, biodegradability, non-toxicity, and recyclability by 40 years of research, most recently by scientists at Queen Mary University, London and at the Laboratory of Microbial Oceanography in France, in February and October 2020 respectively.

Illegality

Symphony is advised that the ban is illegal because there has been a failure to accord due process, and because it is disproportionate and discriminatory.

The EU has a well-established procedure, set out in the REACH Regulation 2006, for determining whether substances should be banned.

In December 2017, the EU Commission requested the European Chemicals Agency (“ECHA”) to investigate its concerns as to whether oxo-degradable plastic was a source of microplastics. Symphony and the Oxo-biodegradable Plastics Association submitted scientific evidence to ECHA on oxo-biodegradable plastic and in October 2018 ECHA said that they were not convinced that it created microplastics.

The Commission then made the surprising decision in April 2019 to terminate ECHA’s investigation and the EU proceeded to impose a ban effective from 3 July 2021, citing microplastics as a reason. In doing so, it ignored the opinion of ECHA.

If ECHA had recommended a restriction, supported by the detailed dossier prescribed by REACH, the recommendation would have had to be considered by two committees, and also by a stakeholder consultation, before any restriction could be proposed. None of these procedures prescribed by EU law have been complied with.

Symphony’s CEO, Michael Laurier said: “The Board has not taken this action lightly, but the way the EU has behaved and the resultant confusion and damage to our business is unacceptable. We will not accept restraint of trade without due process, non-discrimination, proportionality, and scientific justification.

The EU fails to acknowledge that the billions of persistent microplastics in the open environment, including the oceans, are actually coming from the fragmentation of ordinary and bio-based plastics which have not been upgraded with oxo-biodegradable technology.”

Keystone Law litigator Patrick Selley said: “Symphony Environmental Technologies PLC are market leaders in this technology that has at its heart environmental protection. The manner in which the EU has adopted this Directive is not only harmful to our clients but potentially to the environment and this action needs to be bought before the EU courts.”

Symphony is also represented in this case by Josh Holmes QC and Jack Williams, Barristers of Monckton Chambers, Grays Inn, London. Symphony has also been advised by Professor Sir Alan Dashwood QC, the author of “Wyatt & Dashwood’s European Union Law.”

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