Germany Challenges European Commission Over Toy Safety Directive’s Chemical Restrictions and Takes Legal Action
On 14 May 2012, the German Government brought a legal action before the EU's General Court against the European Commission's (EC) final decision regarding Germany's restrictions of a number of chemicals that can be found in toys. The decision had been published in the EU's Official Journal on 20 March 2012 (see: Business Alert-EU, Issue 7/2012).
The decision relates to a request made by Germany on 20 January 2011 to retain its existing restrictions of the elements lead, arsenic, mercury, barium and antimony, as well as of nitrosamine and nitrosatable substances, released from toys and toy materials.
Under EU Directive 2009/48/EC on the safety of toys, these substances will be restricted according to specific limits as from 20 July 2013, but to a less severe extent than the German restrictions. Germany is obliged to harmonise its national laws with the EU Directive as from 20 July 2013, but - wishing to maintain its more stringent restrictions - has asked for permission to retain them beyond the above-mentioned date.
Previously the EC issued its final decision and concluded that the national provisions notified by Germany with regard to mercury, arsenic and antimony were not justified on grounds of a major need to protect human health. The European Commission therefore considered that the national provisions notified could not be approved.
With regard to the national measures notified by Germany in relation to lead and barium as well as to nitrosamines and nitrosatable substances, the EC concluded that these measures are to be regarded as justified by the need to protect human health, and that they do not constitute a means of arbitrary discrimination, a disguised restriction on trade between Member States, nor a disproportionate obstacle to the functioning of the internal market. The EC therefore considered that the national measures notified by Germany could be approved, subject to a limitation in time insofar as lead and barium are concerned. It declared that the national thresholds applicable in Germany for lead and barium in toys may remain in force only until either the date of entry into force of new EU provisions setting new limits for lead and barium in toys or 21 July 2013, whichever comes first.
The German Government intends to campaign for the right to maintain higher German safety standards for children's toys with regard to mercury, arsenic and antimony, and beyond 21 July 2013 as regards the lower German thresholds for lead and barium.
Since the EC has expressed approval of the German measures related to nitrosamines and nitrosatable substances, which are set out in the German Consumer Goods Ordinance, nothing will change for sellers placing their toys on the German market with a view to nitrosamines and nitrosatable substances in toys.
As for the other substances, the thresholds set out in the Directive will become applicable in Germany in July 2013 unless either new EU provisions with new limits for lead and barium in toys will enter into force before that date, or the General Court overrules the EC and approve Germany's request in its entirety.
It should be noted that if Germany is successful, sellers would have to continue to meet the higher standards for the German market also with regard to lead, arsenic, mercury, barium and antimony, even if the Directive's less rigorous limits for those chemical substances apply everywhere else in the EU.
Published: 17 July 2012