Mayer Brown secures landmark appellate victory for Titanium Dioxide Industry in front of the Court of Justice of the European Union
Brussels – Mayer Brown achieved a landmark appellate victory on behalf of the companies members of the Titanium Dioxide Industry Association (TDMA) as well as Evonik, as the Court of Justice of the European Union ("CJEU") dismissed appeals by the French Republic and the European Commission and upheld the annulment of the classification of titanium dioxide ("TiO2") in certain powder forms as a carcinogenic substance.1
In November 2022, in Billions Europe and Others, Mayer Brown secured a victory for the Titanium Dioxide industry by convincing the General Court of the EU to annul the harmonized classification of TiO2 as a suspected carcinogen (Category 2) by inhalation under the EU’s Classification and Labelling (CLP) Regulation. See Mayer Brown Brussels secured a landmark victory in front of the Court of Justice of the European Union | News | Mayer Brown.
In February 2023, The European Commission and the French Government appealed the General Court's judgment. Mayer Brown was retained to represent TDMA in these appeals before the Court of Justice.
The judgment of the Court of Justice sets an important precedent for all cases where an administrative decision is based on complex technical and scientific assessments. The Court confirmed, contrary to the opinion of the Avocate General, that factual complexity is not a barrier for judicial review and, therefore, the General Court was entitled to hold that the Risk Assessment Committee ("RAC") of the European Chemical Industry ("ECHA") had failed to take into account all the relevant factors for the purposes of assessing the scientific information related to TiO2.
It is remarkable that the Court of Justice did not follow the Avocate General who was calling, in a controversial opinion of 6 February 2025, for what would have constituted a drastic reduction of the scope of the Court's judicial review in cases involving technical and scientific assessments, because "judges [...] are not scientists and are therefore not equipped to decide on the usability of contradictory or simply inconclusive scientific findings."2 Had the Court followed the Avocate General, as it most often does, the Commission and RAC could have adopted "scientific" decisions unaccountable for basic errors of science and exempt from any meaningful judicial review.
The Court of Justice also declined to review the General Court's interpretation of the concept of "intrinsic property" of a substance to cause carcinogenicity, which therefore remains valid and fully into effect and may influence how other concepts used in the CLP that are not further defined, are to be interpreted.
Titanium dioxide is widely used across many industries, in particular in the form of a white pigment in various products, ranging from paints to cosmetics, medicinal products and toys. This judgement removes the obligation to classify and label certain powder forms of TiO2₂ as suspected carcinogens. It avoids potentially extensive regulatory consequences for coatings formulations and other downstream applications. Beyond TiO2, the judgment will also have implications for all harmonized classifications of substances in the EU, and beyond, for all cases involving scientific assessments, as it determines the applicable standard for judicial review.
The Brussels-based Mayer Brown team was led by Litigation Regulatory Enforcement partners Jean-Philippe Montfort and Pavlina Chopova-Leprêtre, and included Antitrust & Competition partner Aymeric de Moncuit.
1 Judgment in Judgment of the Court in Joined Cases C-71/23 P and C-82/23 P| France v CWS Powder Coatings and Others: https://curia.europa.eu/juris/document/document.jsf?text=&docid=302997&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=11272114
Press release of the Court: https://curia.europa.eu/jcms/upload/docs/application/pdf/2025-08/cp250099en.pdf
2 Opinion of Advocate General Ćapeta delivered on 6 February 2025 in Joined Cases c 71/23 P and c 82/23 P https://curia.europa.eu/juris/document/document.jsf?text=&docid=295077&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=11272114
