Document qk2QyKw9XGvq4GoEM8k4bdDG5

Annex XV restriction report of FFFs by ECHA (Version 1, 14 January 2022) Comments by DG GROW We were surprised by reading the restriction report when in the "Summary" section the Agency proposed that "the preferred restriction option would ban the placing on the market, use and export of PFASs in firefighting foams after use/sector-specific transitional periods". We note to ECHA that this is the first time in a proposal that a RO is to ban the export of a group of substances (all PFAS) for a specific use, which is the production of FFFs. As a justification the following is used "In addition, this approach is in line with the EU Chemicals Strategy for Sustainability which states that "The EU will [...] lead by example, and, in line with international commitments, ensure that hazardous chemicals banned in the European Union are not produced for export, including by amending relevant legislation if and as needed"1. This approach is particularly relevant for PFAS considering their persistence and their potential for long range transport". First, we would like to recall that the REACH Regulation does not provide a legal basis for restricting exports. Article 3(31) defines a restriction as "any condition for or prohibition of the manufacture, use2 or placing on the market3". Article 67(1) provides that "(a) substance on its own, in a mixture or in an article, for which Annex XVII contains a restriction, shall not be manufactured, placed on the market or used unless it complies with the conditions of that restriction". Article 68(1) provides that "when there is an unacceptable risk to human health or the environment, arising from the manufacture, use or placing on the market of substances, which needs to be addressed on a Community-wide basis, Annex XVII shall be amended ... by adopting new restrictions, or amending current restrictions in Annex XVII, for the manufacture, use or placing on the market of substances on their own, in mixtures or in articles ...". In sum, it is not possible, from a legal perspective, to restrict exports under REACH. In addition, the CSS is a "Communication", not a piece of legislation, and therefore does not include an additional legal basis into the REACH Regulation for banning exports, nor provide a legal basis for banning exports itself. The specific point that refers to banning the export of hazardous chemicals includes also the phrase "in line with international commitments" and this has not be analysed in the context of your preferred option. The Commission has not yet decided whether or how to convert this part of the CSS into legal provisions. Discussions are currently starting and ECHA's proposal preempts any outcomes of the internal Commission discussions. I would like also to inform you that in the EU law in chemicals there are only a few prohibitions on export of substances that are banned at an international level and in accordance with the international agreements (eg. Mercury Convention). There is no such an agreement in the case of FFFs yet. 1 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Chemicals Strategy for Sustainability - Towards a Toxic-Free Environment - COM(2020) 667 final, 2020, available at https://eur-lex.europa.eu/resource.html?uri=cellar:f815479a-0f01-11ebbc07-01aa75ed71a1.0003.02/DOC_1&format=PDF 2 To note that the definition of use in Article 3(24) REACH does not cover exports. 3 To note that placing on the market under REACH only relates to the internal market, cf judgment of the Court of Justice of 27 April 2017 in Case C-535/15. Your proposal also clearly refers to the ban on export of all PFAS substances as substances on their own for uses in FFFs. (1st condition of the proposal). It is difficult to understand how this can be practicable in a third country, if the third country does not have any agreement or is not bound by an international convention , especially since EU cannot control the uses in the third country since PFAS have any other uses except in FFFs. Furthermore, it would be a very bad precedent for the Scientific Committees to form an opinion to the third restriction option that has never been used so far except in international agreements, if this cannot be taken up in EU law due to a lack of legal basis. Thus, the opinion should be formed on the second restriction option and ECHA should withdraw the third option. It would be a really bad precedent if the opinions support this option and then the Commission cannot introduce it into the restriction for lack of legal basis and this could cause the restriction to be significantly delayed and thus causing more emissions to the environment. In other words, your option preempts very important political discussions to be held in the context of the REACH revision. Finally, it is clear that this restriction proposal is a "mirror" restriction to the upcoming Universal PFAS restriction proposal. Logically speaking, the option of an exports ban, therefore, would risk to be reflected in the Universal PFAS restriction proposal without considering the legality of this addition under REACH Regulation. PS. More comments may come later on other parts of the proposal.