The Court of Justice of the European Union (CURIA) has backed the prohibition of oxo-degradable plastics on the market, underlining its intent to protect the natural environment and human health and dismissing legal claims made by Symphony Environmental.

In 2019, the Directive (EU) 2019/904 was introduced in an effort to cut down on the environmental impact of certain plastic products. Among other things, the directive prohibited companies from placing products made from oxo-degradable plastic on the European market.

The directive defines oxo-degradable plastic as a plastic that, through the addition of one or more additives, is thought to break the material down into micro-fragments or initiate the process of chemical decomposition.

UK-based company Symphony Environmental responded by filing a lawsuit in 2021. The company produces a pro-oxidant additive that, when applied to a conventional plastic, is thought to ensure it biodegrades more quickly without leaving microplastics behind.

It estimated a compensation claim of up to £82 million in reputational damage, loss in profits, and a general decline in the company’s value. Its stance on the matter is that the ban on oxo-degradable plastic products is not justified by evidence from the European Chemicals Agency and, allegedly, ignores safeguards against arbitrary legislation provided by Arts. 69-73 of REACH.

The General Court has dismissed the action, stating that the European legislature ‘did not make a manifest error’ in preventing products containing a pro-oxidant additive from being placed on the market.

Apparently, scientific studies available when the directive was adopted indicate that the biodegradation of oxo-degradable plastics is ‘low to non-existent’ in open environments, landfill, and the ocean. Furthermore, plastics containing pro-oxidant additives are not thought to be suitable for composting and are currently incompatible with existing recycling technologies.

The General Court asserts that banning such products on the European market is not an infringement of the principle of proportionality as it intends to protect the environment and human health; nor is it said to infringe the principle of equal treatment, ‘since products made from plastic containing a pro-oxidant additive are not in a situation comparable with products made from conventional plastic’.

Speeding up the fragmentation of plastic containing a pro-oxidant additive is expected by the General Court to concentrate its biodegradation over a shorter period and worsen its environmental impact. It also highlights the incomparability of plastics containing a pro-oxidant additive and those that are already made from compostable plastic, which constitutes a different product.

Previously, seven plastic packaging manufacturers, including Paccor, brought an action for annulment before the EU General Court under Article 263 TFEU against the marking specifications for single-use beverage cups wholly or partially made from plastic. In their view, the marking specifications for beverage cups established in the IR 2020/2151 were unnecessary and unsuitable to prevent and reduce the impact of beverage cups on the environment.

Oxo-degradable additives were also considered a main disqualifier in the RecyClass Methodology for the assessment and certification of plastic packaging recyclability, as laid out in its Design Book.

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