Symphony Environmental suing EU over degradable plastics directive

Symphony Environmental Technologies began legal action against the Commission, Parliament, and Council of the European Union on Monday, in relation to their decision to adopt Article 5 of the Single Use Plastics Directive 2019/904.

The AIM-traded firm said it had been advised by three barristers - all experts in EU law - that the part of the directive was “confusing and illegal”, with “substantial damages” being claimed.

It had said in its half-year results in September that the directive “added to the confusion”, as it required EU members to ban oxo-degradable products that did not properly biodegrade, and were not recyclable with ordinary plastics.

Symphony said it was continuing to explain the difference between ‘oxo-degradable’ and ‘oxo-biodegradable’ plastic, but the directive had not made that clear.

It said its ‘d2w’ plastic was oxo-biodegradable, and not oxo-degradable.

“We believe that Symphony's d2w technology would achieve considerably better traction both within the EU and outside Europe if we could resolve this confusion,” the board said in its statement.

It did note that, due to Brexit, the UK did not need to implement the directive at all, unless the government chose to.

Symphony's said its d2w technology caused ordinary plastic to degrade if it was exposed to the open environment, and to biodegrade in the same way as nature's wastes.

It said it could be recycled if collected during its useful life, adding that it had been validated for degradability, biodegradability, non-toxicity, and recyclability by 40 years of research - most recently by scientists at Queen Mary University in London and at the Laboratory of Microbial Oceanography in France, in February and October respectively.

“The board has not taken this action lightly, but the way the EU has behaved and the resultant confusion and damage to our business is unacceptable,” said chief executive officer Michael Laurier.

“We will not accept restraint of trade without due process, non-discrimination, proportionality, and scientific justification.

“The EU fails to acknowledge that the billions of persistent microplastics in the open environment, including the oceans, are actually coming from the fragmentation of ordinary and bio-based plastics which have not been upgraded with oxo-biodegradable technology.”

The main purpose of the directive was to ban single-use plastics most often found on the beaches, but the company said there was no evidence that oxo-biodegradable plastics had been found on beaches, or anywhere else.

Symphony said it had been advised that the ban was illegal, as there had been a failure to accord due process, and because it was “disproportionate and discriminatory”.

The board said the EU had a “well-established procedure”, set out in the REACH Regulation 2006/1907, for determining whether substances should be banned.

This procedure was designed to avoid the kind of arbitrary action which it claimed had occurred in this case.

“Symphony has decided to commence an action in the General Court of the EU for compensation pursuant to Article 340 of the Treaty on the Functioning of the EU by reason of the adverse effect on its business caused by the reference to ‘oxodegradable’ in Article 5 of the directive,” said the company’s deputy chairman and former barrister Michael Stephen.

“Although we cannot dictate the timetable, the facts of the legislative process are clear and we do not expect the case to be protracted, as it will essentially be a point of law for the court to decide.

“Most of the costs of preparing the case have already been paid.”

At 1558 GMT, shares in Symphony Environmental Technologies were down 10.26% at 17.5p.