Watch out – “Lisbonisation” will affect some CLP Classifications

Here we are, working away at classifying, labelling, packaging and compiling Safety Data Sheets, thinking that we’re on top of how things work at ECHA, and even if Brexit does happen, it’s going to be pretty much business as usual.

Or so we think….but are you aware that the Lisbon Treaty is going to affect the process of Harmonised Classifications quite significantly? And that this will potentially affect some classifications on EU products, or products sold into the EU (e.g. by UK companies after Brexit)?

As you may expect, the bureaucrats in the EU have invented a new word for the process of implementing the Lisbon Treaty, which is “Lisbonisation”, and we in the chemicals and chemical-using industry need to be prepared for it.

In my opinion, Lisbonisation is an ugly word for an ugly process, Scientific fact will become less important than political opinion for new Harmonised Classifications in the EU​.

Let me show you how Lisbonisation will have an impact. The Harmonised Classification process has been around for a long time, as it was started under CHIP, the precursor to CLP, to create and manage entries into the Approved Supply List.

Briefly, one or two EU member states/ EEC member countries would be assigned a chemical, which their Competent Authority (e.g. the HSE in the UK) would then research, sometimes discuss with industry, and produce a proposed best-practice Harmonised Classification for everyone to use via the Supply List (under CHIP), or the Harmonised Classification List (under CLP). The proposed classification would be discussed between the Competent Authorities of the Member States, agreed on, and if it passed this check, it  would be published and come into use.

Apart from the decision about which substances should be assessed and who should do it, the process was in the hands of technical experts in the Competent Authorities, who could take information from industry (often the real experts), and under CLP there was also a public consultation process where other industry comments could be made.

Lisbonisation blows this out of the water, by handing control of the decision making effectively into the hands of politicians in the European Commission.

Under the terms of the Lisbon Treaty, the EU is moving towards become a superstate, the “United States of Europe”. If you don’t believe me, consider that these things are already in place:

• a flag
• an anthem
• a currency, the Euro
• even an army is being formed from individual countries armies, (despite claims to the contrary) see https://en.wikipedia.org/wiki/Common_Security_and_Defence_Policy

It may sound cynical, but when the new President of the European Commission, Ursula von der Leyen, who is a committed federalist, announces on her first day in office that she has given up on her dream of the creation of a United States of Europe, see https://www.politico.eu/article/ursula-von-der-leyen-rows-back-on-united-states-of-europe/, my first thought was “she’ll just carry on moving towards it, but without the publicity”.

Lisbonisation means that in order to stop a law being passed, in this case of CLP, a particular Harmonised Classification, a super-majority is required.

This is both a 72% majority in terms of EU countries, and includes the need for the countries opposing the proposal to represent at least 67% of the population of the EU. For more information, there’s a good article on LinkedIn https://www.linkedin.com/pulse/change-delegated-acts-under-clp-regulation-commission-peter-holdorf/.

This tips the balance greatly in favour of whoever proposes a law, because of the very high barrier to making changes after it has been proposed.

In the case of Harmonised Classifications, this is the European Commission. They are appointed, rather than elected, and appear to answer to nobody.

Members of the European Commission are also immune from prosecution for anything they do or say while in office, see http://www.europarl.europa.eu/RegData/etudes/IDAN/2014/509981/IPOL_IDA(2014)509981_EN.pdf, which is an interesting fact. Do they think they may do things which are illegal, for example? There is a longstanding principle in UK law that nobody, not even the Monarch, is above the law, as demonstrated by the trial and execution of King Charles I.

The previous version of the European Commission have already shown themselves to be more in favour of politics than of science, with the backing of a very dubious proposal on Titanium Dioxide as a carcinogen (at least according to current scientific practice and knowledge), and this is only likely to increase over time.

This would be very bad news for anyone in the chemical industry who is trying to comply with laws which may be tightened around the wrong chemicals.

Nobody in the industry sets out to kill people. We try our best to make and use chemicals in a way which is beneficial for everybody.

If the European Commission end up focussing on the wrong chemicals, as they are already doing with Titanium Dioxide, everybody loses:

• Beneficial chemicals are wrongly tarred as dangerous, which is bad for people who need to use them; and
• It’s bad for science, because when the truth emerges, it will look like the scientists misled people, when in fact it’s the politicians, and quite probably NGOs as well.
• There may be really nasty chemicals out there which we should be looking at more closely, which won’t be discovered to be harmful until much later, because everyone was worrying about a non-existent problem.

Then there’s the potential for the Lisbonisation process to affect REACH, not just CLP (and it presumably will affect non-chemical regulations as well). Another LinkedIn article discusses this https://www.linkedin.com/pulse/future-reach-how-post-lisbon-regulation-look-like-peter-holdorf/ .

It looks like Lisbonisation is effectively going to remove decision making on Harmonised Classifications, and possibly for REACH related chemical decisions, such as SVHCs, Authorisations and Restrictions, out of the hands of chemical experts, and into the hands of politicians, many of whom are unelected.

If the UK does manage to leave the EU on the 31st October, it may be just in the nick of time to avoid this situation.

Brexit on the 31st October may mean is that there is divergence between Harmonised Classifications made in the UK and those made in the EU more quickly than anybody is expecting.

“Interesting times” ahead.

GHS Classification Courses from TT Environmental Ltd

22nd July 2019

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