Yesterday (20 March 2023), Josh Holmes KC and Jack Williams appeared for Symphony Environmental Technologies PLC and Symphony Environmental Ltd (the Applicants) in the General Court (Luxembourg) in relation a damages action under Article 340 TFEU against the EU Institutions.
The Applicants allege that the EU institutions are non-contractually liable under Article 340(2) TFEU and Article 41(3) of the Charter of Fundamental Rights in respect of the adoption of Article 5 and Recital 15 (insofar as they apply to oxo-biodegradable plastic) of Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (OJ L 155, 12.6.2019, p. 1–19) (“the Directive”).
Article 5 of the Directive directs that Member States “shall prohibit the placing on the market of the single-use plastic products listed in Part B of the Annex and of products made from oxo-degradable plastic”.
The Applicants argue that insofar as the restriction imposed by Article 5 of the Directive encompasses, by means of the definition of “oxo-degradable plastic” in Article 3(1) and (3), a total prohibition of the placing of oxo-biodegradable plastics on the market (“the Article 5 Prohibition”), it is unlawful. This is on the basis that the adoption of the Article 5 Prohibition is vitiated by procedural errors, breaches the principle of proportionality, is based on manifest errors of assessment and matters disconnected with the aim of the Directive, fails to take into account relevant considerations, is discriminatory and breaches the Applicants’ fundamental rights. Accordingly, they seek damages.
Josh and Jack are representing the Applicants in accordance with their continued rights of privilege and audience before the EU Courts under the arrangements in the Withdrawal Agreement for cases started before the end of the transition period. Both also retain rights of privilege to advise confidentially on any new matters of EU law and represent clients before the EU Courts on account of their being called to the Irish Bar (in addition to the Bar of England and Wales).