SPCM SA & Ors, R (on the application of) v Secretary of State for Environment, Food & Rural Affairs Rev 1

Under the REACH regime, registration is directed to substances rather than preparations. The greater practical burden imposed on some businesses by a uniformly applicable substance-based regime does not, without more, constitute unlawful discrimination. A preparation-based alternative would materially alter the scheme and would undermine its objectives, including the limitation of animal testing.

A national court should not refer a validity question to the European Court of Justice where the challenge is unfounded. The court may grant permission and make a reference on a serious validity issue, while refusing permission on an unarguable challenge.

The claimants, chemical manufacturers, distributors and importers, challenged provisions of the REACH regulation concerning registration of substances and polymers. They sought judicial review, declarations on the meaning of Article 6(3), and references to the European Court of Justice on the validity and interpretation of Articles 5, 6(1) and 6(3).

The court approved an extension of time, accepted that all claimants had standing, granted permission concerning Article 6(3), and agreed to refer a validity question concerning that provision. It also had to determine whether the challenge to Articles 5 and 6(1), based on discrimination and disproportionality, was sufficiently arguable to justify permission and a reference.

1. Article 6(3). The phrase concerning substances that have not already been registered by an actor up the supply chain means substances not already registered by someone who is an actor in the present supply chain. A declaration was granted on that construction. Permission was granted for the related claim, and a validity question concerning Article 6(3) was to be referred to the European Court of Justice.
2. Articles 5 and 6(1). REACH pursues a high level of protection for human health and the environment through registration and evaluation of substances. A regime based on preparations would involve potentially almost infinite registrations, create difficulties in assessing risks, and substantially increase animal testing. It would therefore be fundamentally different from REACH and would not achieve its objectives.
3. The substantial burden imposed on chemical manufacturers and importers did not make Articles 5 and 6(1) discriminatory or disproportionate. Any differing practical costs resulted from a uniformly applied rule, which was justified by REACH’s objectives. The claimants had not identified a practicable alternative method of achieving those objectives.
4. The attack on the validity of Articles 5 and 6(1) was unfounded. Applying the principles in the cited European and domestic authorities, the court declined to refer the proposed question to the European Court of Justice and refused permission for that head of claim.
5. The claimants were granted a ten-week extension of time and all four were held to have standing. Costs attributable to the third head of claim were payable by the claimants on the standard basis, if not agreed; costs of the other issues were reserved.

This was a first-instance judicial review application.

• High Court (Administrative Court): Walker J directed a rolled-up hearing on paper on 28 June 2007. Jackson J determined the applications at the hearing on 9 October 2007 and gave judgment on 11 October 2007.