Court upholds EU ban on oxo-degradable plastics in Symphony Environmental legal challenge

In a defining legal decision, the General Court of the EU has ruled against Symphony Environmental Technologies £82M compensation claim against the European Commission for its directive banning oxo-degradables.

The announcement of today’s decision (31 January), dismisses all claims made by Symphony, which manufactures oxo-degradables, a type of plastic designed to degrade through oxidation, often accelerated by exposure to light, heat, and oxygen.

Court of Justice of the European Union
Court of Justice of the European Union
According to Directive (EU) 2019/904 on the reduction of the impact of certain plastic products on the environment, oxo-degradables are a ‘type of plastic [that] does not properly biodegrade and thus contributes to microplastic pollution in the environment, is not compostable, negatively affects the recycling of conventional plastic and fails to deliver a proven environmental benefit’.

In its legal claim, Symphony challenged the European Union's Single-use Plastics Directive, with particular focus on Article 5 which prohibits products made from oxo-degradables from being put onto the market in Member States.

The case was brought before the General Court of the EU, and at stake was Symphony's estimated compensation claim of £82 million. This substantial figure encompassed projected losses in profits, reputational damage, and a decline in the company's overall value.

Symphony's legal challenge encompassed several key arguments. In its first plea, the company contested the directive on scientific and decision-making grounds, asserting that the legislation lacked a robust scientific basis and that the EU's decision-making process was flawed. The court, however, upheld the validity of the directive, affirming the scientific underpinnings of the EU's decision.

The second plea presented by Symphony questioned the adequacy of the EU's procedural approach in implementing the ban. Symphony argued that the procedures did not adhere to required standards. Here, the court determined that the EU's procedures were indeed adequate and in compliance with necessary protocols.

The third plea delved into the proportionality of the ban in relation to its environmental objectives. Symphony contended that the directive's ban was disproportionate. The court, in contrast, found the directive to be appropriately balanced in addressing environmental concerns.

Symphony's fourth plea raised the principle of equal treatment, arguing that the ban unfairly targeted oxo-biodegradable plastics compared to conventional and compostable plastics. The court dismissed this claim, emphasising the distinct environmental impacts of these different types of plastics and their incompatibility for direct comparison under the legislation.

The fifth plea, another critical aspect of the case, invoked fundamental rights, asserting that the ban infringed upon Symphony's rights to conduct business, property ownership, establishment, and sound administration. The court, however, ruled in favour of the directive, asserting that it represented a necessary and proportionate measure for environmental protection, and did not violate administrative rights.

Symphony's share price on the London Stock Exchange underwent significant turbulence as a result of the ruling, experiencing a dramatic drop of approximately 45 per cent to 3.4 pence as of 4pm.

Commenting on the ruling, David Newman, Chairman of the European Bioeconomy Bureau, which advocates for compostable solutions, said: “Personally I have been involved with trying to ban oxodegradable plastics since 2010 when, in Italy, they were marketed as biodegradable bin liners for the rapidly growing food waste collections happening there. Compost plants were forced to extract and dispose of these plastics at great cost. After several court cases, oxodegradables were effectively banned in Italy leading the way for the EU wide ban which the SUP introduced.

“I cannot say enough how personally pleased I am to have been at the forefront of this fight to eliminate these materials from the whole EU market and to read the Court [decision] today. It has filled me with joy that justice has finally been done.

“With me were many others, including the Board of Assobioplastiche in Italy and BBIA in the UK and many others who signed petitions to ban these materials, not least the Ellen MacArthur Foundation.

“Now we face a last challenge: to enforce this ruling on other oxodegradable plastics which are marketed using fanciful terms, in order to circumvent the ban.”