The Advocate General of the European Union has advised that the European Court of Justice (ECJ) should reverse a 2022 ruling by the General Court, which had invalidated the European Commission's 2019 decision to classify titanium dioxide in certain powdered forms as potentially carcinogenic when inhaled. As previously noted in a memorandum dated December 6, 2022, the General Court found that the Commission's classification was unjustified. Both the French authorities and the Commission challenged this verdict, asserting that the General Court overstepped its bounds by misinterpreting the scope of the Commission's authority and by misunderstanding the term "intrinsic properties" as defined under the Classification, Labeling, and Packaging (CLP) Regulation.
The Advocate General argued that, under the CLP framework, when scientific evidence is uncertain, it is the Commission—guided by evaluations from the Risk Assessment Committee (RAC)—that holds the final authority in interpreting such data. In the decision being contested, the General Court had dismissed RAC's conclusions. It found fault with the use of titanium dioxide's standard particle density in toxicological calculations and insisted that a lower density would have been more appropriate given the specifics of the case.
According to the Advocate General, the General Court exceeded its jurisdiction by not merely checking whether the Commission had properly considered all scientific evidence, but by substituting its own judgment on how that evidence should have been weighed. The annulment of the Commission's classification, in this view, was based not on a procedural flaw, but on disagreement with the substance of the scientific assessment.
The original judgment also rejected the idea that the carcinogenic potential from inhaling powdered titanium dioxide was linked to the substance's inherent characteristics. The court argued that such effects only occurred with sufficient exposure and were caused by inflammation due to particle accumulation, suggesting these were external factors. The Advocate General, however, contended that within the regulatory context of the CLP, "intrinsic properties" should be understood in a broader sense, and that the General Court applied an overly restrictive interpretation of the term.
