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The Concept of Essential Use to Regulate Chemicals: Legal Considerations

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Jean-Philippe Montfort


The European Commission's chemicals strategy for sustainability contemplates using the concept of "essential use" to regulate the "most harmful chemicals" under REACH and other legislation. This article reviews the possibilities and legal implications of the use of this concept within the current REACH Regulation. Essentially, it may be possible to apply the "essential use" concept under the current legal framework as a qualifier to the socio-economic assessments which are conducted when considering a potential restriction or authorisation under REACH. However, the essential use concept cannot serve to extend the list of substances of very high concern nor to refuse authorisation to substances the risks of which are adequately controlled. It can also not serve to reverse the burden of proof that is on authorities to demonstrate under a REACH restriction that a given substance presents an unacceptable risk. In essence, it is the principle of proportionality that should guide authorities in introducing the essential use concept under REACH, which entails to ensure that any re­striction is not more restrictive than necessary to serve the legitimate objectives pursued. For many substances of concern, this principle would not allow outright bans of uses only because they are not strictly necessary for safety, security and the functioning of society, as in the Montreal Protocol. This concept could however serve to streamline and speed up au­thorisation or exemptions from restrictions for essential and strategic uses of substances. But societal benefits in a much broader sense, also taking into account the quality of life, and the evolution of societal needs, would need to be considered in order to regulate other less strategic uses of chemicals of concern in a proportionate manner.

Jean-Philippe Montfort, Partner at Mayer Brown Europe Brussels LLP, <jpmontfort@mayerbrown.com>

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