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Serious Concerns Voiced Regarding the Decision to Withdraw Hexavalent Chrome REACH Authorizations

This blog was originally posted on May 15th 2023. Further regulatory developments may have occurred after publication. To keep up-to-date with the latest compliance news, sign up to our newsletter.

The European Court of Justice (ECJ) has overturned chromium VI authorizations applied for through the consortia involving the aerospace industry and general manufacturing.

The basis for the decision was that the safety data submitted by applicants fell far short of what was expected.

Significant Uncertainties in Uses of Chromium Trioxide

REACH requires that any uncertainties in the data must be “negligible,” and the ECJ found this was not the case as the Risk Assessment Committee (RAC) had concluded that there are significant uncertainties in the following cases regarding the uses of chromium trioxide:

Use category 1 formulation of mixtures for uses 2, 4, 5 and 6,
Use category 2 functional chrome plating,
Use category 4 uses in surface treatment for applications in the aeronautics and aerospace sectors (unrelated to functional chrome plating with decorative character (Use category 3), and
Use category 5 uses in surface treatment (except passivation of tin-plated steel (electrolytic tin plating – ETP) for applications in various industry sectors, including architectural, automotive, metal manufacturing and finishing, and general engineering (unrelated to functional chrome plating (Use category 2) or functional chrome plating with decorative character (Use category 3).

Uses in functional chrome plating with decorative character (use category 3) and uses in passivation of tin-plated steel (ETP) (Use category 6) can continue as the information provided were not questioned.

The ECJ decided to shorten the time allowed for continued use to 1 year, which is 20 April 2024.

Authorization Holders’ Response

The authorization holders (so-called CTAC-Sub2) immediately issued a press release asserting their frustration at the decision, and pointed out that 32 company specific authorizations had been granted since 31 May 2017 for similar uses, proving that there are indeed no alternatives available on the market for these uses.

They stated the collective approach was to assist small and medium sized enterprises and make the number of applications for authorization manageable for ECHA.

What Does this Mean for Businesses?

The consequences of this decision for businesses relying on this authorization are seen to be extremely serious by the industry with the following unpalatable options being apparent:

The need to move manufacture permanently to outside the EU before 20 April 2024. This timeframe is extremely tight, or
Cease manufacture altogether by 20 April 2024, or
Reapply for separate Authorizations and provide considerably more evidence of safe use*

The number of uses of chromium trioxide covered in the affected Authorization had already reduced compared with the previous scope. All three options are likely to have significant cost implications to manufactured product and parts availability across the affected sectors and can cause loss of business continuity.

*It is important to note that this option will result in a loss of business continuity as the Authorization will be submitted after the last application date. Manufacturing will have to cease between 20 April 2024 and the decision by the European Commission could take several years due to the potential for circa 1500 replacement applications.

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