lunes, 30 de marzo de 2009

Frau Kokott is rigth, shame reality is wrong (Frau Kokott tiene razón, lástima que la realidad se equivoque)

Let me explain who is Frau Kokott and why she is right. Sometimes, maybe I should say always, laws and regulations may be deficiently planed and worse written. 1907/2006/EC Regulation, better known as REACH goes beyond because when you finish reading its 300 pages you always think what is wrong is reality.

Frau Juliane Kokott is advocate general of The Court of Justice of the European Communities. Is one of the main figures of law in Europe in last years. Brilliant in exposures, synthetic in opinions and with great convincing ability in conclusions.

I invite you to read her opinion about a question solicited by English courts about Articles 6, 7, 21 and 23 of REACH Regulation (C558/07)

The main question is the obligation manufacturer or importer of a polymer of submitting a registration to the Agency for the monomer substances chemically bound the polymer consists of 2% weight by weight (w/w) or more.

As usual, Frau Kokott builds a solid report, a legally untouchable description firmly based on the literal content of Regulation and the main principles of European Law. But in fact, as it is common in European Law reality clash with text and I would dare to affirm that, in this very case, the reform aim does not concedes margin to the Regulation.

Frau Kokott says "[…] that problem is solved by the market. If suppliers of polymers wish to sell them on the European market, they will make it possible to register the monomer substances or – preserving their business secrets – register them themselves with the assistance of an only representative. Otherwise they will have to do without that market. Importers and any users of the polymers can influence that decision by the prices they are prepared to pay. "... The most of the times, suppliers will prefer to renounce to European Market better than declare the secret of his core business.

Moreover, articles are not included in REACH provisions… an American PVC supplier for European medical devices (catheter, plasma bags…) producers have to decide between declare to the world his secrets or to assume himself the enormous costs of registration… or produce the medical devices himself and export articles to Europe with no restrictions at all…

I always compare Law and Chemical Engineering: Laws and regulations are like pipes, depots and equipments in a chemical plant. They may be incorrectly planed, but universal rules of justice, equity and proportionality will always keep the same. The facilities and machines maybe bad designed and constructed but water boils at 100ºC at 1 Bar in all of them.

When a pipe is not correctly made it just does not work... and sometimes the equipment could even be dangerous, very dangerous…. with Law is the same. I only hope that the Court will be not so brilliant.... but a little more realistic.

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