Test case for recognition of chromium trioxide as an intermediate product successful

Chromium trioxide, when used in surface technology, is an intermediate product within the meaning of the REACH Regulation - this has now been decided by the VGH Baden-Württemberg in a test case brought by an electroplating company.

In 2018, the general meeting of the German Surface Technology Association (Zentralverband Oberflächentechnik e.V. - ZVO) decided to fund five test cases in five German states at the suggestion of the Board of Directors in order to clarify in court the question at issue between the European Chemicals Agency (ECHA), the Federal Institute for Occupational Safety and Health (BAUA) and the ZVO as to whether chromium trioxide in its application in surface technology constitutes an intermediate within the meaning of the REACH Regulation. The lawsuit filed by a member company from Baden-Württemberg has now been successful.

For years, the ZVO has taken the view that chromium trioxide is to be classified as an intermediate product in the REACH process and therefore does not require authorization. A ruling by the OVG Koblenz concerning another substance confirmed the ZVO in this view. The lawsuit filed by the member company from Baden-Württemberg was the first of the five model lawsuits to be successful in the second instance. In the now legally binding ruling of the Administrative Court of Justice (VGH) of Baden-Württemberg dated 09.04.2025 - 10 S 1332/23 - the view of the ZVO is confirmed comprehensively and in every respect: The court first ruled - in deviation from the lower court - that the declaratory action is admissible and that, in particular, there is no legal obligation to directly sue the EU Commission or the ECHA before the European Court of Justice (ECJ). Above all, however, the VGH also found, as requested, that the plaintiff company may use chromium trioxide as an electrolyte for the electrochemical deposition of chromium with the aim of chromium-plating materials in its production process without there being an authorization requirement under Art. 55 et seq. REACH Regulation.

Continuing the case law of the ECJ (judgment of 25.10.2017 - C- 650/15 - "Acrylamide judgment") and the OVG Rheinland-Pfalz (decision of 04.02.2020 - 8 A 10966/19), the court ruled that the use of chromium trioxide in the plaintiff's business, i.e. in the field of surface technology, constituted a (transported isolated) intermediate product within the meaning of Art. 3 No. 15 REACH Regulation. The requirements set out in the legal definition of the Regulation, which have already been conclusively interpreted by the ECJ in the above-mentioned decision, are fulfilled. The purpose of using chromium trioxide in electroplating is to convert the substance into metallic chromium. This takes place in an electrochemical process to be described as a synthesis within the meaning of Art. 3 No. 15 REACH Regulation. The use of chromium trioxide remains restricted to a controlled environment.

In its appeal judgment, the VGH expressly opposes the deviating interpretation in ECHA's "Guidance on intermediates" (January 2023). This is in contradiction to the ruling of the ECJ of 25.10.2017, insofar as in the guidance document the definition of the term "intermediate" is limited by the intended result, i.e. the production of the substance, and therefore other uses of a substance - for example to obtain a mixture or to produce or treat an article - cannot be regarded as use as an intermediate even if the substance is converted into another substance in the course of use.

The ZVO assumes that the ruling will be observed by all authorities and courts in all federal states and that future administrative practice and case law will be based on it. However, the ruling initially only has a direct legally binding effect in the relationship between the specific parties to the legal dispute decided by the VGH, i.e. between the plaintiff company and the defendant Regional Council of Tübingen. However, at least in Baden-Württemberg, it can in fact be ruled out that other regional councils or other administrative courts will answer the question in question differently in the future, as the highest administrative court for this federal state has stated in its now legally binding judgment that chromium trioxide is an intermediate product in surface technology. In all other federal states, it will be necessary to await further developments, particularly in Lower Saxony, North Rhine-Westphalia, Hesse and Bavaria, as the administrative court proceedings there have not yet been concluded. However, it can be assumed that the courts in these federal states will not judge the substantive legal situation any differently than the Mannheim Administrative Court did.

In consultation with its legal advisors from the Baumeister law firm, who are also conducting the test cases, the ZVO recommends that all surface technology companies in which chromium trioxide is used refer to the ruling of the VGH Mannheim vis-à-vis the approval and monitoring authorities responsible for them. One conceivable measure is for the affected member companies to write to their respective competent authority and, with reference to the ruling of the Mannheim Administrative Court, request written confirmation that the company is not subject to the obligation to authorize the use of chromium trioxide under the REACH Regulation and that only the registration obligation under Art. 17 et seq. REACH Regulation applies. The judgment of the VGH Baden-Württemberg of 09.04.2025 can be requested from the ZVO in anonymized form. (OM-12/25)