Symphony Environmental takes European Commission to court over oxo-degradable plastic ban
24 Mar 2023 --- A case brought forward by Symphony Environmental Technologies against the European Commission (EC), Parliament, and Council was heard on Monday in the General Court of the European Union (EU) in Luxembourg.
Symphony calls Article 5 of the Single-use plastics Directive (SUPD) “unlawful.” The article reads that “member states shall prohibit the placing on the market of the single-use plastic products listed in Part B of the Annex and of products made from oxo-degradable plastic.”
The company does not accept that Article 5 applies to its d2w technology and claims the confusion caused by the legislation’s wording obstructs the adoption of its product inside and outside the EU.
“The EU ought to be encouraging plastic, which will biodegrade in the open environment, and I have never been able to understand how it was possible to impose a ban without any dossier from the European Chemicals Agency (ECHA) showing any justification for a ban,” says Symphony’s CEO, Michael Laurier.
“The EC had asked ECHA to study the technology under Art 69 of REACH, and ECHA received hundreds of pages of scientific evidence but was instructed to terminate the study.”
Symphony claims its d2w technology does not harm the environment and is advocating for its use to diminish any harm done by other materials.Symphony’s claim
Symphony’s case was heard by five judges, including the president of the General Court and the president of the Fifth Chamber, which the company says indicates the importance the court attaches to the issues in this case.
“The EU proceeded to legislate and ignored all the safeguards against arbitrary legislation provided by Arts. 69-73 of REACH and the Charter of Fundamental Rights. In October 2018, Symphony was informed by the scientific team leader at ECHA after ten months of study that they had not been convinced that microplastics were formed,” continues Laurier.
Josh Holmes KC, representing Symphony, adds that the scientific evaluation should be left to ECHA and he drew attention to “the serious breach of Union law which has regrettably occurred in this case.”
“The prohibition unlawfully fails to conform with the requirements of proportionality, equal treatment and good administration. Those are fundamental aspects of the judicial control of the Union and are a key protection for individuals and businesses against arbitrary acts,” he asserts.
Symphony’s d2w tech
The company says its case concerns not just the harm done to Symphony but also causes environmental damage. It makes its claim on the grounds that its d2w technology will not cause adverse impacts on the environment because of how it degrades.
Symphony’s d2w technology was invented to reduce plastic pollution by causing the plastic to biodegrade rapidly. It claims to “leave no microplastics or harmful residues” if the plastic escapes into the open environment, particularly the oceans.
“D2w technology turns ordinary plastic at the end of its useful life, in the presence of oxygen, into a material with a different molecular structure. At the end of the process, it is no longer plastic. It has changed into a biodegradable material (by bacteria and fungi) in the open environment,” writes environmental non-governmental organization ChemSec.
European perspective
Article 5 bans oxo-degradable single-use plastic products such as cotton bud sticks, cutlery, plates, straws, stirrers, stirrers, balloon sticks, expanded polystyrene food containers, beverage containers, covers and lids.
Symphony has its case heard in front of the EU court against Article 5 of the SUPD.
In 2018 the EC questioned the use of oxo-degradable plastic in uncontrolled conditions in the open environment, landfills or marine environment. The EC raised concerns that plastic fragments would undergo complete biodegradation within a reasonable time frame.
“If this is not the case, oxo-degradable plastic will contribute to the microplastics release in the (marine) environment while misleading consumers. As recent research shows, microplastics released in the marine environment get into the food chain and end up being consumed by humans,” the EC wrote.
In the same year, European Bioplastics managing director Hasso von Pogrell said the “EUBP has long been warning about the harmful effects of oxo-degradable plastics on the environment and the potential damage to the reputation and understanding of truly biodegradable plastics. Several cases of greenwashing and false claims have been reported over the past years, leading to confusion about biodegradation in the general public.”
Waiting for results
Symphony’s claim was submitted in December 2020. Symphony estimates the maximum damages at £82 million (US$100.4 million) if the court finds it in their favor. However, the number could be higher given the time elapsed until judgment and would be at the court’s discretion.
There is no time limit for the delivery of judgment, but Symphony’s lawyers, Josh Holmes KC and Jack Williams, barristers from Monckton Chambers, estimate 12 to 15 months after the hearing.
In 2021, Environmental campaigners reported the Italian government to the EC for passing legislation that they said violates the SUPD. Italian authorities made exemptions for compostable and biodegradable plastics in their legal transposition.
By Sabine Waldeck
