Hexavalent chromium (CrVI), identified as a substance of very high concern (SVHC) under the REACH regulation due to its carcinogenic, mutagenic, and reprotoxic properties, remains widely used in European industries despite stringent regulations.
This substance, used in metal surface treatment and anti-corrosion coatings, has been banned in Europe since September 21, 2017, following its inclusion in REACH Annex XIV. This ban led to a massive submission of REACH authorization dossiers (individual, joint, and upstream) to ensure industrial continuity beyond the deadline.
One of these submissions is the CTAC (Chromium Trioxide Authorization Consortium) dossier, an upstream authorization dossier submitted by a multisectoral user consortium. This dossier covered a significant portion of chromium trioxide uses in Europe. However, it is still awaiting approval from the European Commission due to various legal complications, causing delays and uncertainties regarding its evaluation and vote.
The CTAC dossier’s construction and the information provided, which were deemed insufficiently representative, triggered stricter requirements for CrVI authorization dossiers. This change in evaluation approach stems from the European Court of Justice’s C-144/21 ruling. The court found a lack of data on worker exposure and insufficient evidence of safer alternatives, leading to the partial annulment of the CTAC authorization. This judicial decision established new standards for CrVI authorization dossiers, impacting all dossiers still awaiting a vote by the European Commission.
The Impact of the C-144/21 Ruling on CrVI Authorization Requests
More stringent Requirements to Demonstrate the Absence of Available Alternatives
On April 20, 2023, the European Court of Justice (case C-144/21) partially annulled the European Commission’s Decision C(2020) 8797 (known as “Chemservice” or “CTAC”), which granted authorization for certain uses of chromium trioxide in December 2020.
The court clarified and reinforced the burden of proof for authorization applicants. The European Commission now requires that applications provide detailed descriptions of known alternatives to minimize uncertainties regarding their availability. Applicants must rigorously demonstrate that no economically or technically viable alternatives to their use of CrVI exist.
Additionally, the Commission now evaluates other criteria in its assessment, including:
- Justifying the necessity of specific functionalities provided by the substance and the precise performance level required for each function.
- Ensuring the use description is detailed enough to identify the categories of products covered by the request. Products must be grouped into homogeneous categories based on functionality and required performance level.
- Providing representative and adequately measured worker exposure data across all relevant sites. For sites without data, applicants must demonstrate that operating conditions and risk management measures are similar to those with available data.
Immediate Consequences for CrVI Dossiers Still Pending Before the European Commission
In line with the Court's new approach to the assessment of authorization dossiers, and to avoid them being the subject of similar complaints similar to those which led to the partial annulment of CTAC, the European Commission has decided to allow certain authorization applicants to complete their dossiers.
13 applications for authorization were considered at the time of their review by the European Commission not to comply with the new evaluation grid.
Consequently, the applicants concerned have been invited to provide additional relevant information, which will be assessed by ECHA. Following this new evaluation, SEAC will issue an addendum to the initial opinions. These new opinions will be sent back to the Commission by the second quarter of 2025, so that it can resume its decision-making process on these applications.
ECHA will certainly be adopting this new approach and, through its RAC and SEAC evaluation committees, will be demanding the same level of requirements during the mandatory question-and-answer phase for each authorization dossier submitted.
Regulating the use of chromium VI for functional chrome plating
Prospects for downstream users of hexavalent chromium: the case of CTACSub 1 and CTACSub 2
On February 19, 2024, the CTACSub2 consortium, a sub-group of the member companies of the first CTAC consortium, submitted a new application for REACH authorization. This application concerns essential uses of chromium trioxide for a large group of 299 downstream industrial users.
The CJEU's annulment of CTAC's original authorization decision has had a direct impact on the renewal dossiers submitted, including that of this consortium. Initially, CTACSub2 was to have constituted an authorization renewal dossier, but CTAC's annulment in April 2023 changed the status of this dossier upstream, because there was de facto no legal basis for this renewal dossier. However, the cancellation of this decision had no industrial impact on the uses of chromium trioxide for CTAC 1 manufacturers.
Although the Court annulled the initial decision on CTAC 1, the case is now in the same position as when applicants submitted their application before the “latest application date”, and applicants and industrialists covered by this application can continue to use chromium trioxide until the European Commission adopts a new decision on the CTAC application.
As yet, no timetable has been announced by the European Commission for a new date for the vote on the CTAC 1 decision. This situation creates uncertainty for companies using CrVI, particularly those involved in functional chromium plating, who have to navigate an evolving and increasingly restrictive regulatory framework.
While we await a new decision from the European Commission on CTAC 1, ECHA's analysis of the CTAC2 dossier is progressing, with opinions expected in early 2025.
The specific case of aerospace files: ADCR, the other upstream file
The ADCR (Aerospace and Defense Chromates Reauthorisation) dossier was also born in the wake of the CTAC1 dossier, but is more specific, at least in terms of the sectors concerned by this application. The consortium is made up of 68 aerospace and defense companies, with chromium VI uses, customers and supply chains located in the EEA (European Economic Area) and the UK. ADCR has filed 21 authorization dossiers including uses for new applications and renewals. ADCR uses that have been submitted as part of a renewal dossier benefit from transitional measures that allow manufacturers to continue using the substance until a formal decision is taken on these dossiers.
As far as new dossiers are concerned, manufacturers cannot start using the substance until the European Commission has adopted the authorization decision for these uses.
These new dossiers include three uses that are highly critical to the aerospace supply chain, and which are covered by an authorization that expired on September 21, 2024.
The European Commission, aware of the urgency and criticality of these three uses for European manufacturers, has undertaken to speed up the processing and voting of these dossiers.
Thus, the first decisions concerning ADCR applications were adopted in September 2024, with regard to urgent uses in the EU and the UK allowing companies to continue using CrVI for authorized uses and under the strictly supervised conditions recorded in the authorization decisions.
The next votes for the other uses of ADCR are scheduled for the forthcoming REACH committees (committees made up of representatives from each of the 27 EU member states, responsible for voting on authorization dossiers). A piecemeal approach will certainly be considered for the adoption of the remaining dossiers, as the Commission cannot discuss and vote on all the other uses in a single REACH committee.
It should be noted that the ADCR dossier voted under UK REACH concerns 11 uses of chromium compounds in the aerospace and defense sector.
Downstream users wishing to benefit from REACH authorizations in the UK and EU will have to comply with certain rules, including notification of authorized uses to the competent authorities.
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