The ECJ has annulled part of the European Commission decision that exempted Decabromdiphenyl Ether (Deca-BDE), a brominated flame retardant used in electronic and electrical equipment, from a list of hazardous substances banned under the restriction of hazardous substances (RoHS) directive, on the basis of a risk assessment which concluded that restrictive measures, beyond those already applied, were not necessary for Deca-BDE.

The judgment of the Court did not rest on the safety, or otherwise, of Deca-BDE; instead, it turned upon the manner in which the RoHS directive was drafted.

It was held that the exemption granted to DecaBDE under the prohibition of the RoHs Directive did not meet strict procedural requirements and conditions laid down in the Directive.

The court found it unnecessary to rule on whether the Commission had acted out with its powers

In the interests of the undertakings concerned, the Court felt that an adaptation period was necessary – accordingly the exemption will remain in place until June 30, 2008.

The decision has been welcomed by certain environmental groups. However, the Chairman of the Bromine Science and Environmental Forum has called on the European Commission to examine Deca-BDE applications in electrical and electronic equipment as a matter of priority and to reconcile the inconsistency between the risk assessment and the provisions of the RoHS Directive.

The ECJ judgment in the joined cases C-14/06 and C-295/06 is available via the link.

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