LEGAL ACTION AGAINST THE EU

A British company, Symphony Environmental Technologies Plc, announced today that it is suing the European Union for damages which could amount to tens of millions of Euros, relating to the ban they have imposed through Article 5 of the Single Use Plastics Directive (the “Directive”) on “oxo-degradable” plastics, and failing to make it clear that it does not apply to oxo-BIOdegradable plastics.  

Symphony’s CEO, Michael Laurier, says “This has been a very ugly manoeuvre in Brussels and we think it is the work of lobbyists acting for some large German and Italian competitors.   We are aware that there is another industry (the BSEF) suing the EU for an “unprecedented and unwarranted restriction” on their products, and we wish them well.  It seems that the EU has become so arrogant, and lobbyists in Brussels so powerful, that they think they can do whatever they please.” 

ILLEGALITY

Symphony has been advised by three Barristers, all experts in EU law, that Article 5 of the Directive is illegal.  Also, that the UK is not obliged to implement the Directive anyway.

The EU has a well-established procedure, set out in the REACH Regulation (“REACH”), for determining whether substances should be banned.  This procedure was designed to avoid the kind of arbitrary action which has occurred in this case. 

On 22nd December 2017 and in compliance with the procedure, the EU Commission requested the European Chemicals Agency (“ECHA”) under Article 69 of REACH to investigate its concerns regarding microplastics.  Symphony submitted scientific evidence to ECHA on oxo-BIOdegradable plastic and on 30 October 2018 ECHA said that they were not convinced that it created microplastics. 

The Commission then made the extraordinary decision on 8 May 2019 to terminate ECHA’s investigation and the EU proceeded to impose a ban 

effective from 3 July 2021, citing microplastics as a reason.  In doing so, they ignored the advice of ECHA, their own scientific experts – never before has an ECHA investigation been circumvented by legislation.

Only if ECHA had recommended a restriction, supported by the detailed dossier prescribed by Annex XV of REACH, the recommendation would have had to be considered by two committees under Articles 70 and 71 of REACH, and also by a stakeholder consultation under Article 71(1), before any restriction could be proposed under Article 73. None of these procedures prescribed by EU law for the protection of companies like Symphony have been complied with.

CONFUSION

Symphony’s d2w technology is oxo-BIOdegradable not oxo-degradable. It causes ordinary plastic to biodegrade if it gets into the open environment, and can be re-used and recycled if collected during its service-life.  It has been validated for degradability, biodegradability, recyclability, and non-toxicity by 40 years of research, most recently by scientists at Queen Mary University, London and at LOMIC (Laboratory of Microbial Oceanography) in France, in February and October 2020 respectively

The EU has caused confusion by failing to distinguish clearly between these two very different technologies, and the confusion has damaged Symphony’s existing and potential sales of its d2w technology.

Michael Laurier adds “The EU fails to acknowledge that the billions of persistent microplastics in the open environment, including the oceans, are actually coming from the fragmentation of ordinary and bio-based plastics which have not been upgraded with Symphony’s oxo-BIOdegradable technology.”

Symphony’s Deputy Chairman, Michael Stephen, a former Barrister and MP, said: 
“The Board has not decided lightly to take this court action, but the way the EU has behaved and the resultant confusion and damage to our business is unacceptable.  We will not accept restraint of trade without due process, non-discrimination, proportionality, and scientific justification, and we are claiming compensation under Article 340 of the Treaty on the Functioning of the EU.” 

ANTIMICROBIAL TECHNOLOGY

It is important to note that Symphony’s d2p business is not directly affected by the Directive.  d2p is a wide range of products, which include technologies that give plastic, rubber, and silicon anti-bacterial and anti-viral properties, and is an increasingly important part of Symphony’s overall business. These are among the few materials in common use which can themselves (as distinct from being painted or sprayed) be made to destroy viruses on contact within one hour – before they can enter the human body.  The demand for antiviral plastic is growing at a rapid rate all around the world – and making it biodegradable with d2w will help to protect the environment as well.  

NOTES TO EDITORS:

Symphony is represented in this case by Josh Holmes QC and Jack Williams, Barristers of Monckton Chambers, Grays Inn, London – the UK’s leading experts in EU law, and by Keystone Law, Solicitors of Chancery Lane, London. Symphony has also been advised by Professor Sir Alan Dashwood QC, the author of “Wyatt & Dashwood’s European Union Law.”

Symphony Environmental Technologies is a UK technology company listed on the AIM market of the London Stock Exchange, and celebrates its 25th

Anniversary this year.  The company is based in Hertfordshire and operates worldwide through 67 Distributors. 

The company has focussed on two problems of the modern age – protecting people from attack by COVID and other dangerous microbes, and protecting the environment from plastic litter.

Symphony’s d2p technology www.d2p.net gives antimicrobial properties to plastic, rubber, and silicon items, so that microbes will be killed on contact within one hour.  Symphony’s d2w oxo-biodegradable technology www.d2w.net and www.biodeg.org causes ordinary plastic to biodegrade if it gets into the open environment.

CONTACT:  Michael Stephen  dc@d2w.net  07917-796444