CELEX: 62013TJ0392
REACH
Fee for registration of a substance
Reduction granted to micro, small and medium-sized enterprises
Error in declaration relating to the size of the enterprise
Recommendation 2003/361/EC
Decision imposing an administrative charge
Request for information
Power of ECHA
Proportionality

Background to the dispute
On 5 and 7 January 2011, following a procedure initiated by the applicant, Leone La Ferla SpA, the European Chemicals Agency (ECHA) registered two substances under Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (
OJ 2006 L 396, p. 1
).
During the registration procedure, the applicant stated that it was a ‘small’ enterprise, for the purposes of Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (
OJ 2003 L 124, p. 36
). That declaration entitled the applicant to a reduction of the fee due for any application for registration, as provided for in Article 6(4) of Regulation No 1907/2006. In accordance with Article 74(1) of that regulation, the fee in question was established by Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation No 1907/2006 (
OJ 2008 L 107, p. 6
). Annex I to Regulation No 340/2008 sets out inter alia the amounts of the fees due for applications for registration submitted under Article 6 of Regulation No 1907/2006 and the reductions granted to micro, small and medium-sized enterprises (‘SMEs’). In addition, Article 13(4) of Regulation No 340/2008 provides that where a natural or legal person that claims to be entitled to a reduction or a fee waiver cannot demonstrate that it is entitled to such a reduction or waiver, the ECHA is to levy the full fee or charge as well as an administrative charge. In that connection, on 12 November 2010, the Management Board of the ECHA adopted Decision MB/D/29/2010 on the classification of services for which charges are levied (‘Decision MB/D/29/2010’). It is stated in Article 2 and in Table 1 set out in annex to that decision, as amended by Decision MB/21/2012/D of the ECHA Management Board of 12 February 2013 (‘Decision MB/21/2012/D’), that the administrative charge referred to in Article 13(4) of Regulation No 340/2008 is EUR 19900 for a large enterprise, EUR 13900 for a medium-sized enterprise and EUR 7960 for a small enterprise.
On 5 and 7 January 2011, the ECHA issued two invoices (Nos 10026200 and 10026213), each amounting to EUR 9300. That amount corresponded, according to Annex I to Regulation No 340/2008, as applicable at the material time, to the fee payable by a small enterprise, in a joint submission, for substances above 1000 tonnes.
On 20 February 2012, the applicant was requested by the ECHA to supply a certain number of documents for the purposes of verifying the declaration by which it had indicated that it was a small enterprise.
On 17 May 2013, following exchanges of documents and emails, the ECHA adopted Decision SME(2013) 1328. In that decision, the ECHA considered that it had not received the evidence required in order to find that the applicant was a small enterprise and that, in accordance with Article 4(1) of Decision MB/D/29/2010, the applicant had to pay the fee applicable to a large enterprise. In those circumstances, the ECHA informed the applicant that it was going to send the latter an invoice covering the difference between the fee originally paid and the fee ultimately due as well as an invoice of EUR 19900 for payment of the administrative charge.
Pursuant to Decision SME(2013) 1328, on 21 May 2013, the ECHA sent the applicant invoice No 10040807 in the amount of EUR 13950, invoice No 10040817 in the amount of EUR 13950 and invoice No 10040824 in the amount of EUR 19900.
On 23 May 2013, the ECHA sent an email to the applicant in reply to an email received on 21 May 2013. The purpose of that email was to provide the applicant with information concerning Decision SME(2013) 1328.
On 24 July 2013, the ECHA sent a letter to the applicant in reply to an email received on 10 July 2013. That letter contained information intended for the applicant concerning Decision SME(2013) 1328.
Procedure and forms of order sought
The applicant brought the present action by application lodged at the Court Registry on 25 July 2013.
By separate document lodged at the Court Registry on 10 October 2013 under Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991, the Commission raised a plea of inadmissibility, particularly in so far as the action was directed against it.
The applicant lodged its observations on the plea of inadmissibility on 3 December 2013.
On 8 January 2015, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of the General Court of 2 May 1991, the parties were requested to submit their observations on the potential relevance of the judgment of 2 October 2014, Spraylat v ECHA (
T‑177/12
,
EU:T:2014:849
) for the present dispute and to reply to a question. The parties complied with that request within the time allowed.
On 16 July and 15 September 2015, by way of measures of organisation of procedure under Article 89 of its Rules of Procedure, the General Court put written questions to the parties and asked them to reply in writing. The parties complied with those requests within the prescribed periods.
On a proposal from the Judge-Rapporteur, the General Court (Sixth Chamber) decided to open the oral part of the procedure.
The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 12 November 2015.
The applicant claims that the Court should:
—
annul the following measures in their entirety or to the extent that the Court may deem just and in the interests of the applicant:
—
Decision SME(2013) 1328 and the annexes thereto;
—
invoices Nos 10040807, 10040817 and 10040824;
—
the ECHA’s email of 23 May 2013;
—
Decisions MB/D/29/2010 and MB/21/2012/D;
and, where applicable:
—
Regulation No 340/2008, to the extent that it includes information relating to undertakings linked to the applicant when determining its size for the purposes of applying reduced fees and charges;
—
Commission Implementing Regulation (EU) No 254/2013 of 20 March 2013 amending Regulation No 340/2008 (
OJ 2013 L 79, p. 7
);
—
the ECHA’s letter to the applicant dated 24 July 2013;
as well as any other preliminary or consecutive related measures which are prejudicial to the applicant’s interests;
—
accordingly, order the ECHA to repay the sums wrongly received from the applicant (as indicated in invoices Nos 10040807, 10040817 and 10040824), together with statutory interest and after reassessment as from the date of the payments made by the applicant to the ECHA until repayment in full of the sums owed;
—
or, additionally or alternatively, order the ECHA to pay compensation to the applicant for the harm suffered in an amount corresponding to the abovementioned sums wrongly received from the applicant, together with statutory interest and after reassessment as from the date of the payments made by the applicant to the ECHA until repayment in full of the sums owed.
The ECHA contends that the Court should:
—
declare the action inadmissible in so far as it seeks the annulment of invoices Nos 10040807, 10040817 and 10040824, Regulation No 340/2008, the ECHA’s letter to the applicant dated 24 July 2013 and any other alleged or consecutive related measures to the extent that they are prejudicial to the applicant’s interests;
—
dismiss the action in its entirety and confirm the lawfulness of the measures challenged by the applicant;
—
order the applicant to pay the costs.
The Commission contends that the Court should:
—
dismiss the action brought against it as inadmissible;
—
order the applicant to pay the costs.
Law
1.
Admissibility of the action in so far as it is directed against the Commission
The Commission submits that, in its action, the applicant seems to seek the annulment of two regulatory acts, namely Regulation No 340/2008 and Implementing Regulation No 254/2013. First, the Commission argues that those regulations are not of individual concern to the applicant, within the meaning of the fourth paragraph of Article 263 TFEU. Moreover, Regulation No 340/2008, like Implementing Regulation No 254/2013, entails implementing measures, such as those adopted by the ECHA in dispute in this action. The applicant does not therefore have
locus standi
to apply for the annulment of these two regulations. Secondly, the Commission claims that the application does not satisfy the condition laid down in Article 44(1)(c) of the Rules of Procedure of 2 May 1991 which requires the application to state ‘the subject matter of the proceedings and a summary of the pleas in law on which [it] is based’. The Commission asserts that, although the applicant appears to seek the annulment of Regulation No 340/2008 and Implementing Regulation No 254/2013, it does not explain in the pleas in law in support of its action why it considers those regulations to be unlawful. Nor does it specifically identify which parts of the regulations it seeks to annul. The only provision that could possibly be affected, in the light of the applicant’s pleadings, is Article 12 of Regulation No 340/2008, which refers to linked undertakings and the criteria governing the applicability of reductions in respect of SMEs. However, it is not apparent to the Commission which part of that provision would be unlawful or why. The Commission is therefore unable to identify the facts and law forming the basis of the claim for annulment of an unspecified part of the abovementioned regulations. Thirdly, the Commission observes that since the action had to be brought within two months of the publication of the measure, under Article 263 TFEU, the action is, in any event, time barred.
The applicant contends that the Commission’s plea of inadmissibility covers only part of its action, namely the part concerning Regulation No 340/2008 and Implementing Regulation No 254/2013. In that connection, it submits that Article 263 TFEU clearly allows actions to be brought against regulatory acts. Consequently, and on a precautionary basis, including for the purposes of Article 277 TFEU, the applicant also intended to challenge the abovementioned regulations. Its right to do so was recognised in the judgment of 6 March 1979, Simmenthal v Commission (
92/78
,
EU:C:1979:53
). Article 263 TFEU further extended the rights conferred on persons seeking to challenge measures of general application adopted by the European institutions. If natural and legal persons were not allowed to challenge regulatory acts, notwithstanding the expiry of the period of two months from their publication, as well as the measures implementing those acts, there would be an unacceptable lacuna in EU law. The applicant also states that it envisaged the possibility whereby, even if the ECHA’s decisions were consistent with the provisions of the regulations in question, the regulations themselves would be contrary to the Treaties and settled case-law principles. The Commission’s conduct is therefore wrongful in so far as it allowed the ECHA to exercise discretionary powers in a way which exceeded the competences which are and may be conferred on it. In view of this, the Court should begin by determining whether the individual decisions challenged by the applicant are unlawful per se for the reasons set out in the application. Were the Court not to find those decisions to be unlawful, it should also determine whether the Commission failed to fulfil its supervisory obligations as regards the ECHA’s application of the regulations at issue.
First of all, it should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union — applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 thereof — and Article 44(1)(c) of the Rules of Procedure of 2 May 1991, all applications must state the subject matter of the dispute and contain a summary of the grounds relied on.
It is settled case-law that the information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling, if necessary without other supporting information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see judgment of 20 May 2009, VIP Car Solutions v Parliament,
T‑89/07
,
EU:T:2009:163
, paragraph
and the case-law cited; also see, to that effect, orders of 25 November 2003, IAMA Consulting v Commission,
T‑85/01
,
EU:T:2003:309
, paragraph
and the case-law cited, and 20 January 2012, Groupe Partouche v Commission,
T‑315/10
, not published,
EU:T:2012:21
, paragraph
).
Furthermore, where an applicant does not submit any plea in law in support of a head of claim, the requirement laid down in Article 44(1)(c) of the Rules of Procedure of 2 May 1991 that there must be a summary of the pleas in law relied on is not satisfied (judgments of 12 April 2013, Koda v Commission,
T‑425/08
, not published,
EU:T:2013:183
, paragraph
, and of 16 September 2013, Dornbracht v Commission,
T‑386/10
,
EU:T:2013:450
, paragraph
).
Lastly, it is for the applicant to choose the legal basis of its action and not for the EU judicature itself to choose the most appropriate legal basis (judgment of 15 March 2005, Spain v Eurojust,
C‑160/03
,
EU:C:2005:168
, paragraph
, and order of 26 February 2007, Evropaïki Dynamiki v Commission,
T‑205/05
, not published,
EU:T:2007:59
, paragraph
).
It is in the light of the foregoing considerations that the Court has to examine whether the application states the subject matter of the dispute and contains a summary of the grounds relied on such as to meet the requirements of clarity and detail set out in Article 44(1)(c) of the Rules of Procedure of 2 May 1991.
First, as stated in the introductory section of the action, the applicant lodged before the Court an ‘application for annulment based on Article 263 TFEU’.
Secondly, the introductory section of the action refers to seven measures, adopted by either the Commission or the ECHA. The only measures adopted by the Commission are Regulation No 340/2008 and Implementing Regulation No 254/2013.
Thirdly, the action brought by the applicant is based on four pleas in law. The first plea is entitled: ‘Regarding, in particular, ECHA Decision SME(2013) 1328 of 17 May 2013, most recently confirmed by ECHA Measure SME(2013) 2950 of 24 July 2013; ECHA invoices Nos 10040807, 10040817 and 10040824 of 21 May 2013; as well as, among others, the ECHA notification by [email] of 23 May 2013: unlawfulness on account of lack of powers/misuse of powers and ultra vires on the part of the ECHA in the adoption of ECHA Decision SME(2013) 1328 of 17 May 2013.’ The second plea is worded as follows: ‘Regarding, in particular, ECHA Decision SME(2013) 1328 of 17 May 2013, most recently confirmed by ECHA Decision SME(2013) 2950 of 24 July 2013; ECHA invoices Nos 10040807, 10040817 and 10040824 of 21 May 2013; as well as, among others, the ECHA notification by [email] of 23 May 2013: unlawfulness on account of the incorrect and erroneous application of the criteria for determining the size of SMEs set out in Commission Recommendation 2003/361/EC, infringement of the principle of proportionality.’ The third plea reads: ‘Regarding, in particular, ECHA Decision SME(2013) 1328 of 17 May 2013, most recently confirmed by ECHA Measure SME(2013) 2950 of 24 July 2013; ECHA invoices Nos 10040807 and 10040824 of 21 May 2013; as well as, among others, the ECHA notification by [email] of 23 May 2013: unlawfulness on account of lack and misuse of powers on the part of the Executive Director by signing ECHA Decision SME(2013) 1328 of 17 May 2013.’ The fourth plea is headed: ‘Regarding, in particular, Decision MB/D/29/2010 and Decision MB/21/2012/D: unlawfulness on account of ultra vires, lack of powers and misuse of powers on the part of the ECHA in the adoption of those decisions, as well as … infringement of the principle of allocation of powers under Article 5 TEU, in so far as the ECHA adopted Decision MB/D/29/2010 and Decision MB/21/2012/D the amount of which is stated in ECHA invoice No 10040824 of 21 May 2013.’
Fourthly, in one of its heads of claim, the applicant asks the Court ‘to annul the contested measures mentioned in the introduction’. The other heads of claim seek reimbursement or compensation from the ECHA.
It is apparent from the foregoing that the application states the subject matter of the dispute, namely a claim for annulment of the seven contested measures as well as a claim for repayment and a claim for compensation, and the pleas relied on.
However, in so far as the action is directed against the Commission, it manifestly lacks clarity and detail.
In the first place, the applicant seems to suggest in its observations on the plea of inadmissibility that this action is directed against the Commission in so far as it adopted Regulation No 340/2008 and Implementing Regulation No 254/2013.
It should be noted that Regulation No 340/2008 is mentioned as one of the contested measures only to the extent that ‘it includes information relating to undertakings linked to the applicant when determining its size for the purposes of applying reduced fees and charges’, without giving further details. No specific provision of Implementing Regulation No 254/2013 is mentioned.
Furthermore, the headings of the pleas relied on by the applicant in support of its action do not refer to the Commission or to Regulation No 340/2008 and Implementing Regulation No 254/2013.
Moreover, the summary of the pleas relied on in support of the action does not state the extent to which Regulation No 340/2008 and Implementing Regulation No 254/2013 are alleged to be unlawful. Nor do the pleas attribute any unlawful conduct to the Commission.
More specifically, in its first plea in law, as set out in the application, the applicant submits that it is not for the ECHA to ‘establish or determine additional assessment criteria as regards the status of applicant companies as SMEs’ and that ‘in misuse of the delegation of powers received from the Commission, [the ECHA] thus drew up its own unlawful definition of SME, which is overly restrictive’. This plea does not attribute any unlawfulness to the Commission or to the measures adopted by it. In its second plea, the applicant argues that the ECHA unlawfully and incorrectly applied Recommendation 2003/361 to the situation at hand but does not direct any complaint against the Commission or the measures adopted by it. In its third plea, which is linked to the first, the applicant claims that the Executive Director of the ECHA was not able to adopt decisions concerning the size of registered undertakings. Lastly, in its fourth plea, which alleges, inter alia, that the ECHA lacked powers when it adopted Decision MB/D/29/2010 and Decision MB/21/2012/D, the applicant simply states that Regulation No 340/2008 and Implementing Regulation No 254/2013 ‘do not contain any specific provisions concerning that [administrative] charge or at least its application’. The applicant also states that, as regards the fixing of the amount of the administrative charge where a natural person or legal person fails to demonstrate an entitlement to the reduced fee applicable to SMEs, ‘that task lies with the Commission, a task which, however, it seems to have abandoned for the time being’. This plea does not attribute any unlawfulness to the Commission or to the measures adopted by it.
The applicant thus reduces both the Commission and the Court to speculating about the reasoning and precise observations, both in fact and law, that could lie behind its claims for the annulment of Regulation No 340/2008 and Implementing Regulation No 254/2013. It is precisely such a situation, creating legal uncertainty and anathema to a sound administration of justice, that Article 44(1) of the Rules of Procedure of 2 May 1991 is designed to avoid (see, to that effect, order of 19 May 2008, TF1 v Commission,
T‑144/04
,
EU:T:2008:155
, paragraph
).
In any event, even if the pleas relied on by the applicant could be linked to its claim for the annulment of Regulation No 340/2008 and Implementing Regulation No 254/2013, thereby complying with Article 44(1) of the Rules of Procedure of 2 May 1991, the action for annulment would be manifestly inadmissible in that regard in the light of the provisions of the fourth paragraph of Article 263 TFEU, as the Commission correctly points out. Regulation No 340/2008 and Implementing Regulation No 254/2013, which were not addressed to the applicant, do not affect it by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons, and by virtue of these factors distinguish it individually just as in the case of the person addressed (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council,
C‑583/11 P
,
EU:C:2013:625
, paragraph
and the case-law cited). In addition, Regulation No 340/2008 and Implementing Regulation No 254/2013 entail implementing measures, namely, in particular, the measures adopted by the ECHA which are under challenge by the applicant in this case.
The arguments put forward by the applicant in its observations on the plea of inadmissibility, according to which it ‘intended’ to challenge Regulation No 340/2008 and Implementing Regulation No 254/2013, ‘including for the purposes of Article 277 TFEU’, cannot alter that finding.
Even if the applicant’s claim for the annulment of Regulation No 340/2008 and Implementing Regulation No 254/2013 could be interpreted, as a matter of fact, as a claim seeking a declaration from the Court that those regulations are inapplicable, it should be borne in mind that the possibility afforded by Article 277 TFEU of pleading the inapplicability of a measure of general application does not constitute an independent right of action and recourse may be had to it only as an incidental plea (see order of 8 July 1999, Area Cova and Others v Council,
T‑194/95
,
EU:T:1999:141
, paragraph
and the case-law cited). Therefore, simply putting forward a plea of illegality against regulations adopted by the Commission is not sufficient to bring that institution before the Court. Any other interpretation would call into question the fact that the possibility of pleading the inapplicability of a measure of general application under Article 277 TFEU is not an independent right of action.
Furthermore, and for the sake of completeness, it is not apparent from the application that the applicant put forward, on the basis of Article 277 TFEU, a plea of illegality against Regulation No 340/2008 and Implementing Regulation No 254/2013. It should be noted that the action is defined by the application initiating proceedings and that a plea of illegality is inadmissible where raised at a later stage in the proceedings (see, to that effect, judgment of 27 September 2005, Common Market Fertilizers v Commission,
T‑134/03 and T‑135/03
,
EU:T:2005:339
, paragraph
and the case-law cited). In the present case, it is apparent from the application that the applicant lodged an action based on Article 263 TFEU by asking the Court ‘to annul the contested measures mentioned in the introduction’, including Regulation No 340/2008 and Implementing Regulation No 254/2013. Article 277 TFEU is not among the provisions relied on in the application in support of the action, as the applicant acknowledged at the hearing. Moreover, there is nothing to support the applicant’s proposition that, at the stage of the application, it put forward a plea of illegality against those two regulations. In particular, as stated above, the summary of the pleas relied on in support of the action, set out in the application, does not state the extent to which Regulation No 340/2008 and Implementing Regulation No 254/2013 are alleged to be unlawful. Furthermore, the plea of illegality put forward by the applicant in its observations on the plea of inadmissibility is not based on any matters of law or of fact which came to light in the course of the proceedings.
Furthermore, in order to determine whether the applicant may rely, in support of an action against an individual measure, on the irregularity of a measure of general application, it needs to be examined in particular whether the applicant raises against that measure one of the four pleas for annulment referred to in the second paragraph of Article 263 TFEU (see, to that effect, judgment of 11 December 2012, Sina Bank v Council,
T‑15/11
,
EU:T:2012:661
, paragraph
and the case-law cited). It is not possible to determine from the wording of the applicant’s pleadings which of the pleas or grounds for challenge referred to in the second paragraph of Article 263 TFEU are specifically in support of the pleas of illegality raised against Regulation No 340/2008 and Implementing Regulation No 254/2013.
Therefore, it must be considered for the sake of completeness that the plea of illegality against Regulation No 340/2008 and Implementing Regulation No 254/2013, raised by the applicant in its observations on the plea of inadmissibility, is inadmissible.
In the second place, even if the action — in so far as it seeks the annulment of Decisions MB/D/29/2010 and MB/21/2012/D — is properly directed against the Commission since, under Article 11(5) of Regulation No 340/2008, such decisions can be adopted only after receiving a ‘favourable opinion’ from the Commission, it would be manifestly inadmissible, as the Commission correctly pointed out in its reply to the measures of organisation of procedure of 16 July 2015 (paragraph 13 above). Besides the fact that the application evidently lacks clarity and detail for the purposes of Article 44(1) of the Rules of Procedure of 2 May 1991, there is nothing to indicate that those decisions are of individual concern to the applicant. Next, even if those decisions could be classified as regulatory acts within the meaning of the fourth paragraph of Article 263 TFEU, they entail implementing measures, as demonstrated by the adoption of Decision SME(2013) 1328. Furthermore, since Decisions MB/D/29/2010 and MB/21/2012/D were adopted on 12 November 2010 and 12 February 2013, respectively, and since the applicant became aware of them, at the latest, on 26 February 2013 as a result of the letter sent by the ECHA, the action lodged on 25 July 2013 was out of time. Lastly, it is necessary to reject the applicant’s arguments, put forward in its reply to the measures of organisation of procedure of 16 July 2015 (paragraph 13 above), that the Court was not entitled to raise, of its own motion, the question of the admissibility of the action, in so far as it sought the annulment of Decisions MB/D/29/2010 and MB/21/2012/D. Since the conditions for the admissibility of an action are a matter of public policy, the Court is required to examine them of its own motion and its review, in that regard, is not confined to the pleas of inadmissibility raised by the parties (see, to that effect, judgment of 9 September 2015, SV Capital v ABE,
T‑660/14
,
EU:T:2015:608
, paragraphs
and
).
In addition, even if the applicant had intended, by its fourth plea, to raise a plea of illegality against Decisions MB/D/29/2010 and MB/21/2012/D, that would not justify bringing an action for annulment under Article 263 TFEU against the Commission or lead to the conclusion that the Commission is required to defend itself before the Court in that context (see paragraph 40 above and the case-law cited).
For all of these reasons, the action must be declared inadmissible in so far as it is directed against the Commission.
2.
Admissibility of certain heads of claim in the action for annulment brought against the ECHA
First, the ECHA submits that the action, in so far as it seeks the annulment of invoices Nos 10040807, 10040817 and 10040824, is inadmissible since those invoices are not challengeable acts. They do not produce legal effects that differ from those produced by Decision SME(2013) 1328. Nor do they alter the applicant’s legal position, as they simply implement Decision SME(2013) 1328.
Secondly, the ECHA contends that the action is inadmissible in so far as it seeks the annulment of its letter of 24 July 2013. In that letter, the ECHA merely responded to the arguments put forward by the applicant without altering its legal position. In its reply to the measures of organisation of procedure of 15 September 2015 (see paragraph 13 above), the ECHA stated that the same was true of its email of 23 May 2013. The action is therefore also inadmissible in that regard.
Thirdly, the action is inadmissible in so far as it seeks the annulment of Regulation No 340/2008 and any other alleged or consecutive related measures to the extent that they are prejudicial to the applicant’s interests. In that respect, the ECHA asserts that the action does not contain a sufficiently clear description of the pleas relied on or the subject matter of the dispute.
The applicant argues that invoices Nos 10040807, 10040817 and 10040824, as well as the ECHA’s letter of 24 July 2013, produce legal effects in respect of it and that, accordingly, they may be challenged under Article 263 TFEU. In addition, because the admissibility of the heads of claim relating to the measures mentioned in the introduction to the application is not disputed, the admissibility of the action against the three abovementioned invoices and the ECHA’s letter of 24 July 2013 is irrelevant, since those measures would have to be declared void anyway if the action for annulment were admitted. Furthermore, as regards the ECHA’s email of 23 May 2013, the applicant claims in its reply to the measures of organisation of procedure of 15 September 2015 (see paragraph 13 above) that that was the email by which it became aware of the reasons for the ECHA’s refusal to grant it SME status.
As for the action, the applicant states in its reply that there is sufficient supporting evidence in the application in so far as the action is directed against Regulation No 340/2008. By means of its action, the applicant mounts an alternative challenge to the regulation in question, which is the basis for the measures challenged under the primary head of claim. The Rules of Procedure do not require an applicant to repeat all of the pleas relied on in support of the action for each contested measure.
According to settled case-law, only measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in its legal position may be the subject of an action for annulment under Article 263 TFEU (judgment of 11 November 1981, IBM v Commission,
60/81
,
EU:C:1981:264
, paragraph
; order of 4 October 1991, Bosman v Commission,
C‑117/91
,
EU:C:1991:382
, paragraph
; and judgment of 15 January 2003, Philip Morris International v Commission,
T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01
,
EU:T:2003:6
, paragraph
).
In order to ascertain whether a measure in respect of which annulment is sought is open to challenge, it is necessary to look to its substance, the form in which it is cast being, in principle, immaterial in that regard (judgments of 11 November 1981, IBM v Commission,
60/81
,
EU:C:1981:264
, paragraph
; of 28 November 1991, Luxembourg v Parliament,
C‑213/88 and C‑39/89
,
EU:C:1991:449
, paragraph
; and of 24 March 1994, Air France v Commission,
T‑3/93
,
EU:T:1994:36
, paragraphs
and
).
Moreover, a decision that is merely a confirmation of a previous decision is not a challengeable act, with the result that an action directed against it is inadmissible (judgments of 25 October 1977, Metro SB-Großmärkte v Commission,
26/76
,
EU:C:1977:167
, paragraph
, and of 5 May 1998, United Kingdom v Commission,
C‑180/96
,
EU:C:1998:192
, paragraphs
and
; also see order of 10 June 1998, Cementir v Commission,
T‑116/95
,
EU:T:1998:120
, paragraph
and the case-law cited).
With respect to the concept of confirmatory measures, the Court has held that a measure is regarded as merely confirmatory of a previous decision if it contains no new factor as compared with the previous decision and was not preceded by a re-examination of the circumstances of the person to whom that decision was addressed (judgment of 7 February 2001, Inpesca v Commission,
T‑186/98
,
EU:T:2001:42
, paragraph
, and order of 29 April 2004, SGL Carbon v Commission,
T‑308/02
,
EU:T:2004:119
, paragraph
).
In the first place, as regards the admissibility of the action in so far as it seeks the annulment of invoices Nos 10040807, 10040817 and 10040824, it must be pointed out that, unlike the facts at issue in the case giving rise to the judgment of 2 October 2014, Spraylat v ECHA (
T‑177/12
,
EU:T:2014:849
), Decision SME(2013) 1328 expressly refers to Decision MB/D/29/2010, as amended by Decision MB/21/2012/D, and states that ‘the ECHA will issue … an invoice for an administrative charge in the amount of EUR 19000’. It is also stated that the ECHA was going to issue an additional invoice for each application in order to cover the difference between the fee initially paid and the fee laid down in Regulation No 340/2008 for large enterprises, in accordance with Article 4(1) of Decision MB/D/29/2010. It follows that Decision SME(2013) 1328 contained the essential elements relating to the obligations imposed on the applicant vis-à-vis the ECHA. Accordingly, invoices Nos 10040807, 10040817 and 10040824 are assimilable to measures which implement that decision and are confirmatory measures within the meaning of the case-law cited in paragraph 55 above (see, by analogy, order of 30 June 2009, CPEM v Commission,
T‑106/08
, not published,
EU:T:2009:228
, paragraph
). Consequently, the action is inadmissible in so far as it seeks the annulment of invoices Nos 10040807, 10040817 and 10040824.
In the second place, as regards the admissibility of the action in so far as it seeks the annulment of the ECHA’s email of 23 May 2013, it is sufficient to note that the email in question was intended to reply to the request for clarification concerning Decision SME(2013) 1328, sent by the applicant on 21 May 2013, and did not produce any binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in its legal position. In particular, that email stated that the applicant ought to have provided information relating to the undertaking Calme Lux SA, pursuant to Article 6(3) of the Annex to Recommendation 2003/361, and that, in the absence of such information, the ECHA was unable to establish that the applicant was indeed a SME. The email of 23 May 2013 thus merely repeats what the ECHA had already told the applicant during the administrative procedure leading to the adoption of Decision SME(2013) 1328, particularly in its letter of 26 February 2013 and emails of 14 May, 19 June, 4 July and 8 August 2012 and 4 March 2013. The action is therefore inadmissible in so far as it seeks the annulment of the ECHA’s email of 23 May 2013.
In the third place, with respect to the admissibility of the action in so far as it seeks the annulment of the ECHA’s letter of 24 July 2013, it is sufficient to note that the letter in question was intended to reply to the request for clarification concerning Decision SME(2013) 1328, sent by the applicant on 10 July 2013, and did not produce any binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in its legal position. In particular, that letter simply drew attention to the relevant legal framework, made reference to Decision SME(2013) 1328 and informed the applicant that all of its arguments had been duly taken into account prior to the adoption of the decision. The action is therefore inadmissible in so far as it seeks the annulment of the ECHA’s letter of 24 July 2013.
In the fourth place, as for the admissibility of the action in so far as it seeks the annulment of ‘any other preliminary or consecutive related measures which are prejudicial to the applicant’s interests’, it should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union — applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 thereof — and Article 44(1)(c) of the Rules of Procedure of 2 May 1991, all applications must state the subject matter of the dispute and contain a summary of the grounds relied on. In the present case, it is sufficient to note that the applicant’s claim is not sufficiently detailed and does not allow the Court to identify the measures in respect of which annulment is sought. The action is therefore inadmissible in so far as it seeks the annulment of ‘any other preliminary or consecutive related measures which are prejudicial to the applicant’s interests’.
Lastly, for the same reasons as those set out in paragraphs 38 and 44 above, the action for annulment must be found to be inadmissible in so far as it seeks the annulment of Regulation No 340/2008 and Implementing Regulation No 254/2013 as well as Decisions MB/D/29/2010 and MB/21/2012/D. Furthermore, even if the action for annulment of Regulation No 340/2008 and Implementing Regulation No 254/2013 were directed against the ECHA, it would be manifestly inadmissible since, as a general rule, actions must be directed against the body which enacted the contested measure, in other words, the EU institution or body from which the decision emanated (judgment of 8 October 2008, Sogelma v AER,
T‑411/06
,
EU:T:2008:419
, paragraph
). As a final point, even if, where the applicant states in its reply that it challenged Regulation No 340/2008 and Implementing Regulation No 254/2013 — which constitute the ‘legal basis’ for the measures adopted by the ECHA — ‘in the alternative’, it actually puts forward a plea of illegality against those regulations, that plea would have to be declared inadmissible for the same reasons as those set out in paragraphs 41 to 43 above.
In the light of the foregoing, the consideration of the action brought against the ECHA must be limited to the claim for the annulment of Decision SME(2013) 1328.
3.
Substance
It should be recalled that, in Decision SME(2013) 1328, the ECHA considered that it had not received the evidence required in order to find that the applicant was a small enterprise and that, in accordance with Article 4(1) of Decision MB/D/29/2010, the applicant had to pay the fee applicable to a large enterprise. As is apparent from the evidence put before the Court, after reviewing several items of additional information supplied by the applicant, the ECHA considered that the applicant had to be regarded as being linked to two undertakings, Saced SpA and Cogefin Srl, and as being a partner of two other undertakings, Premix SpA and Sicical SpA. The ECHA also found that one undertaking, Calme Lux, had to be regarded as being linked to Sicical. Against that background, the ECHA asked the applicant on several occasions to provide it with information on Calme Lux. The ECHA received no such information.
The applicant relies on four pleas in law in support of its action: the first plea alleges lack of powers, misuse of powers and ultra vires on the part of the ECHA in the adoption of Decision SME(2013) 1328; the second plea alleges misapplication of Recommendation 2003/361 and infringement of the principle of proportionality; the third plea alleges lack of powers and misuse of powers on the part of the Executive Director of the ECHA; and the fourth plea alleges lack of powers, misuse of powers and ultra vires on the part of the ECHA in the adoption of Decisions MB/D/29/2010 and MB/21/2012/D.
Claims for annulment
Preliminary remarks on the statement of reasons for Decision SME(2013) 1328
In its reply to the measures of organisation of procedure of 15 September 2015 (paragraph 13 above), the applicant stated that Decision SME(2013) 1328 was ‘inherently lacking in reasons’. In particular, the applicant claimed that the decision in question contained only a list of applicable rules, correspondence exchanged between the parties and documents sent to the ECHA, as well as a list of annexes.
The applicant raises a new plea in law here. However, an absence of or inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a plea involving a matter of public policy which may, and even must, be raised by the European Union judicature of its own motion (judgment of 2 December 2009, Commission v Ireland and Others,
C‑89/08 P
,
EU:C:2009:742
, paragraph
).
According to settled case-law, the statement of reasons required under Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission,
C‑286/13 P
,
EU:C:2015:184
, paragraphs
and
and the case-law cited).
In the present case, in view of the legislative provisions referred to in Decision SME(2013) 1328 and the exchanges of correspondence and documents between the ECHA and the applicant, as mentioned in Decision SME(2013) 1328, the applicant was perfectly placed to understand that the ECHA’s decision was based on the failure to supply the relevant data. In particular, the ECHA asked the applicant on several occasions to provide it with information relating to Calme Lux, particularly with reference to Article 6(3) of the Annex to Recommendation 2003/361. That provision concerns the taking into account of data relating to undertakings linked to partner undertakings of the undertaking in question, which, as the applicant admitted at the hearing, is the case with respect to Calme Lux. Therefore, it must be considered that Decision SME(2013) 1328 meets the requirements of Article 296 TFEU.
First plea in law, alleging lack of powers, misuse of powers and ultra vires on the part of the ECHA in the adoption of Decision SME(2013) 1328
The applicant submits that, under Article 20(2) of Regulation No 1907/2006, the ECHA can refuse registration only if the documentation supplied by the registrant undertaking is incomplete. The ECHA’s powers comprise advisory powers and implementation and management powers in relation to the verification of dossiers and the carrying out of scientific, technical or administrative assessment activities. The division of tasks between the Commission and the ECHA is found in the definition of the criteria for assessing the legal nature of SMEs, since the ECHA cannot discretionarily add its own rules or guidelines to those deriving from the Commission. The ECHA cannot therefore confer exclusive power on its secretariat to rule independently on the application of Recommendation 2003/361 in the context of registration applications.
The applicant also argues that the Commission refers to the definition of SME laid down in Recommendation 2003/361 without inserting or including the provisions of that recommendation in a binding general measure. In any event, the mere reference made to Recommendation 2003/361 demonstrates that the Commission intended the reduced registration fee to be applied broadly. In the present case, however, the ECHA required the applicant to produce evidence in relation to a significant amount of data concerning its activities, spanning a long period of time, or the activities of third companies. In that connection, the ECHA decided to apply the sub-criteria listed in the Annex to Recommendation 2003/361 (in particular, the existence of a link to another company); it did not simply apply the straightforward definition of SME stemming from that recommendation. The only reference in Regulation No 340/2008 to the sub-criteria set out in the Annex to Recommendation 2003/361 is found in Article 12 of that regulation and is exclusively concerned with undertakings established outside the EU. The ECHA therefore misinterpreted Regulation No 340/2008. Accordingly, the ECHA misused the delegation of powers received from the Commission by drawing up its own narrow definition of SME. By requiring the applicant to provide information deriving from a third company with which it is in partnership, information which it was unable to supply, the ECHA discretionarily replaced the Commission’s assessment and procedural criteria with its own. By going beyond a straightforward verification to ensure that the application was complete, the ECHA exceeded its powers. The only plausible explanation for the ECHA’s conduct in requesting extensive documentation from the applicant is that it misused its powers in order to demonstrate that the applicant did not satisfy the criteria set out in Recommendation 2003/361, despite the evidence submitted in rebuttal. Against that background, the applicant also claims that the ECHA acted in bad faith towards it and did not provide it with any appropriate assistance during the registration and verification procedure. It was only at the stage of the proceedings before the Court that the ECHA voiced complaints against the applicant, while adding to the file documents obtained after the action had been brought.
Furthermore, in the reply, the applicant contends that the ECHA bases its defence on an ‘implied’ power enabling it to verify the size of registrant undertakings. Nonetheless, the allocation of powers should be based on an express act. The ECHA mistakes ‘requesting’ additional information for ‘assessing’ such information. Indeed, the ECHA’s defence contradicts its letter of 24 July 2013 in which it stated that its powers derived directly from Recommendation 2003/361. Article 59 of Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (
OJ 2002 L 357, p. 72
) moreover draws a distinction between fees and charges fixed entirely by legislation and amounts which may be fixed by decision of the management boards of EU bodies. The delegation of powers conferred on the ECHA in financial matters is limited to the charges levied for services provided at the request of a party, set out in Article 11 of Regulation No 340/2008. That delegation of powers does not include the administrative charge, provided for in Article 13 of Regulation No 340/2008, which falls within Article 74(1) and (3) of Regulation No 1907/2006 and must be fixed in a Commission regulation. Article 13(4) of Regulation No 340/2008 does not allow the ECHA to fix the amount of the administrative charge. The Commission also failed to comply with its supervisory obligation by tolerating, in practice, the grant of powers by the ECHA in the absence of any express delegation to that effect.
The ECHA challenges the applicant’s arguments.
It should be recalled that the first plea in law can essentially be divided into three parts. The first part concerns the ECHA’s power to assess the size of registrant undertakings. The second part claims that the ECHA exceeded and even misused its powers in the application of Recommendation 2003/361. The third part also claims that the ECHA exceeded and even misused its powers as regards the information requested from the applicant.
– First part of the first plea in law, alleging, in essence, that the ECHA has no power to assess the size of registrant undertakings
By the first part of its first plea, the applicant essentially argues that the ECHA does not have the necessary power to assess the size of registrant undertakings when determining the fee applicable to the registration in question. That power is assigned to the Commission, in the same way as the provision made in connection with the fixing of fees.
The applicant’s premiss is based on a misreading of the relevant legislation. One of the objectives pursued by Regulation No 1907/2006 is to have the ECHA ensure effective management of the technical, scientific and administrative aspects of that regulation and play a pivotal role in its implementation, particularly through the grant of high regulatory capacities (recitals 15 and 95 of Regulation No 1907/2006). It is, in particular, for the ECHA — in the context of the budgetary implementation duties assigned to it — to ensure the recovery of all revenue owed to it, including the fees paid by undertakings (Articles 96 and 97 of Regulation No 1907/2006). In addition, Article 13(3) of Regulation No 340/2008 expressly states that the ECHA ‘may request, at any time, evidence that the conditions for a reduction of fees or charges or for a fee waiver apply’. Moreover, Article 13(4) of Regulation No 340/2008 provides that it is the ECHA which is to levy the full fee or charge as well as an administrative charge ‘where a natural or legal person that claims to be entitled to a reduction or a fee waiver cannot demonstrate that it is entitled to such a reduction or waiver’. It follows that the ECHA has the necessary power to verify that the conditions enabling a registrant undertaking to receive a reduction in fees or charges or a fee waiver are met.
Article 20(2) of Regulation No 1907/2006, relied on by the applicant, cannot alter that finding since that article serves a different purpose, namely to ensure that registration dossiers submitted by registrant undertakings are complete. That provision cannot, therefore, cast doubt on the power of the ECHA to verify that the conditions enabling a registrant undertaking to receive a reduction in fees or charges or a fee waiver are met.
In the light of the foregoing, the first part of the first plea in law must be rejected as unfounded.
– Second part of the first plea in law, alleging, in essence, ultra vires or misuse of powers in the application of Recommendation 2003/361
By the second part of the first plea in law, the applicant essentially claims that the ECHA should have confined itself to applying the definition of enterprise categories set out in Article 2 of the Annex to Recommendation 2003/361 and should not have applied the other criteria mentioned in that Annex, particularly those set out in Article 3 relating to ‘types of enterprise taken into consideration in calculating staff numbers and financial amounts’. Consequently, the ECHA was not entitled to ask the applicant for information concerning some partner or linked companies.
As a preliminary point, it should be noted that, according to settled case-law, a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (judgment of 10 March 2005, Spain v Council,
C‑342/03
,
EU:C:2005:151
, paragraph
).
In the present case, it must be pointed out that both Regulation No 1907/2006 (Article 3) and Regulation No 340/2008 (recital 9 and Article 2) refer to Recommendation 2003/361 for a definition of SMEs. According to recital 1 of Recommendation 2003/361, the aim of the recommendation is to ensure that the same definition of SMEs is applied at EU level. That definition is to be used, pursuant to Article 1 of Recommendation 2003/361, in EU policies.
In particular, Article 3(36) of Regulation No 1907/2006 defines SMEs as small and medium-sized enterprises ‘as defined in … Recommendation [2003/361]’. Under Article 2 of Regulation No 340/2008, a small enterprise is ‘a small enterprise within the meaning of Recommendation [2003/361]’. A similar reference is made in Article 2 of Regulation No 340/2008 as regards the definition of micro and medium-sized enterprises. Accordingly, the relevant legislation makes express reference to Recommendation 2003/361 in order to define what is meant by, in particular, ‘small enterprise’. In contrast to what the applicant suggests, it cannot be precluded, in principle, that the provisions of a recommendation may be applicable by means of an express reference in a regulation to its provisions, provided that general principles of law and, in particular, the principle of legal certainty, are observed (see, by analogy, judgment of 17 January 2008, Viamex Agrar Handel and ZVK,
C‑37/06 and C‑58/06
,
EU:C:2008:18
, paragraph
). In the present case, the applicant has not provided any information to indicate that the reference in Regulations Nos 1907/2006 and 340/2008 is contrary to general principles of law. Furthermore, that reference is designed to ensure, by applying the relevant provisions of Recommendation 2003/361, that the same definition of SMEs is applied in EU policies, which is consistent with the objective of that recommendation.
Moreover, in contrast to the applicant’s claims, there is no basis for considering — in the absence of specific provision to that effect — that the express reference made in the relevant regulations concerns only part of the definition of SMEs set out in Recommendation 2003/361, whereby some of the criteria mentioned in the Annex thereto are excluded. It should be noted in that regard that Title I of the Annex to Recommendation 2003/361 is headed ‘Definition of micro, small and medium-sized enterprises adopted by the Commission’ and that Article 3(36) of Regulation No 1907/2006 specifically refers to the definition of SMEs appearing in Recommendation 2003/361. That definition, as provided for in Title I of the Annex to Recommendation 2003/361, includes not only staff headcount and financial ceilings determining enterprise categories (Article 2 of the Annex to Recommendation 2003/361), but also, inter alia, the types of enterprise taken into consideration in calculating staff numbers and financial amounts (Article 3 of the Annex to Recommendation 2003/361). Furthermore, the applicant’s proposed exclusion would deprive Recommendation 2003/361 of its practical effect, namely the application of the same definition of SMEs in the implementation of EU policies. It is also necessary to ensure that the definition of SMEs is not circumvented by purely formal means (see, to that effect, judgment of 27 February 2014, HaTeFo,
C‑110/13
,
EU:C:2014:114
, paragraph
and the case-law cited). Lastly, the applicant’s reliance on Article 12 of Regulation No 340/2008 cannot alter that finding since that article is intended to deal with the specific situation (which is not the situation here) of only representatives of manufacturers, formulators of a preparation or producers of an article not established in the EU.
In the light of the foregoing, there is nothing to indicate that the ECHA, by deciding to apply all the criteria set out in the Annex to Recommendation 2003/361, exceeded or even misused its powers.
The second part of the first plea in law must therefore be rejected as unfounded.
– Third part of the first plea in law, alleging, in essence, ultra vires or misuse of powers as regards the information requested from the applicant
By the third part of the first plea in law, the applicant submits, in essence, that the ECHA exceeded and even misused its powers by asking it to provide extensive information relating to its activities, spanning a long period of time, or the activities of third companies.
As a preliminary point, it should be noted that it is for the registrant undertaking, at the request of the ECHA, to demonstrate that it is entitled to a reduction or fee waiver (Article 13(3) and (4) of Regulation No 340/2008). In addition, as is apparent from the examination of the second part of the first plea, the ECHA was able to ask the applicant to provide evidence that it was indeed a ‘small enterprise’ within the meaning of Recommendation 2003/361, including information relating to possible partner or linked companies.
In the present case, it should be noted, as the ECHA points out in its pleadings, that, by letters of 20 February and 20 March 2012, the applicant was asked to supply information concerning the number of employees and the balance sheets for the last two accounting periods preceding the registrations, as well as information on its ownership structure when the registration dossiers were submitted, including information on undertakings linked to the applicant or in partnership with it. As regards the request concerning the number of employees and the balance sheets for the last two accounting periods, this was warranted in the light of, inter alia, Article 4(2) of the Annex to Recommendation 2003/361. According to that provision, ‘where, at the date of closure of the accounts, an enterprise finds that, on an annual basis, it has exceeded or fallen below the headcount or financial ceilings stated in Article 2, this will not result in the loss or acquisition of the status of medium-sized, small or micro enterprise unless those ceilings are exceeded over two consecutive accounting periods’. Furthermore, as indicated in various exchanges of letters and emails between the ECHA and the applicant, the former’s requests concerning the ownership structure of the applicant and the information relating to companies regarded as partners or linked companies was also based on the information forwarded by the applicant, particularly its audited financial statements. Among other things, the ECHA was able to determine, in an email sent to the applicant on 4 March 2013, that the applicant had to be regarded as being linked to two undertakings, Saced and Cogefin, and as being a partner of two other undertakings, Premix and Sicical. The ECHA also found that one undertaking, Calme Lux, had to be regarded as being linked to Sicical. It was on the basis of these findings, and having regard to the first subparagraph of Article 6(3) of the Annex to Recommendation 2003/361, that the ECHA asked the applicant, in particular, for information on Calme Lux. That article provides that ‘the data of the partner enterprises of the enterprise in question are derived from their accounts and their other data, consolidated if they exist. To these is added 100% of the data of enterprises which are linked to these partner enterprises, unless their accounts data are already included through consolidation’. At the hearing, the applicant confirmed that Calme Lux could be regarded as an undertaking linked to one of its partner undertakings, in this instance Sicical. It follows from these considerations that the ECHA’s request for information, particularly in respect of Calme Lux, in the light of the criteria set out in Recommendation 2003/361 and the documents supplied by the applicant, cannot be considered to be unreasonable. In addition, the applicant does not put forward any evidence to suggest that the information requested by the ECHA could not be sent to it. The applicant simply stated, in essence, that it could not send the ECHA information relating to a third company. That, in itself, is not capable of demonstrating that the applicant was genuinely unable to provide the requested information to the ECHA. The ECHA also informed the applicant on several occasions that Calme Lux could provide it with the information in question directly, as is apparent from, inter alia, the emails sent to the applicant on 19 June, 4 July and 8 August 2012 and 4 March 2013. The applicant failed to show that that option was not feasible in the present case.
Even if the claim that the ECHA acted in bad faith during the administrative procedure — which the applicant raised at the reply stage — were admissible and had to be construed as referring to an infringement of the ECHA’s obligation of diligence or good administration, it would, in any event, seem to be manifestly unfounded. It is clearly apparent from the evidence put before the Court and, in particular, the letters and emails sent by the ECHA that, during the administrative procedure, the applicant was kept abreast of the information it was required to provide and the basis for the ECHA’s requests.
In the light of the foregoing, there is nothing to indicate that the ECHA, particularly by requesting information concerning Calme Lux, exceeded or misused its powers.
The third part of the first plea in law must therefore be rejected as unfounded.
– Additional arguments put forward at the reply stage
In its reply, the applicant puts forward arguments to supplement those examined above, claiming that the ECHA’s powers do not include the administrative charge provided for in Article 13 of Regulation No 340/2008, which falls within the scope of the Commission’s powers. The applicant also contends that the Commission failed to comply with its supervisory obligation by tolerating, in practice, the grant of powers by the ECHA in the absence of any express delegation to that effect.
First of all, it must be borne in mind that, under Article 48(2) of the Rules of Procedure of 2 May 1991, new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which have come to light in the course of the procedure. A plea which amplifies a submission put forward previously, whether directly or by implication, and which is closely connected with that submission, will be declared admissible (see judgment of 5 October 2011, Romana Tabacchi v Commission,
T‑11/06
,
EU:T:2011:560
, paragraph
and the case-law cited).
In the present case, the first plea in law alleging misuse of powers and ultra vires by the ECHA in the adoption of Decision SME(2013) 1328 sought to question the ECHA’s power to verify the size of registrant companies. This plea, directed against Decision SME(2013) 1328, as set out in the application, did not seek to question the ECHA’s power to adopt an administrative charge. Accordingly, the arguments put forward by the applicant at the stage of the reply must be construed as a new plea in law. This new plea is not based on matters of law or of fact which have come to light in the course of the procedure. In particular, the applicant’s interpretation of the ECHA’s defence arguments, to the effect that the ECHA claimed to have an ‘implied’ power to verify the size of registrant undertakings, is manifestly unfounded since the ECHA repeatedly pointed out in its pleadings that the power in question was derived from the relevant legislation. In addition, the section of the ECHA’s defence arguments referred to by the applicant concerned the power to verify the size of registrant undertakings and not the power to adopt an administrative charge. The arguments raised by the applicant at the reply stage must therefore be rejected as inadmissible.
In any event, the arguments raised by the applicant are unfounded. As is apparent from Article 11(5) of Regulation No 340/2008, to which Article 13(4) thereof refers, ‘a classification of the services and charges shall be drawn up by the Management Board of the [ECHA] and adopted after a favourable opinion by the Commission’. It should be noted that the objective of Article 11 of Regulation No 340/2008 is to allow, under certain conditions, the ECHA to levy a charge for services which are not covered by any other fee or charge imposed in that regulation. Therefore, the classification drawn up by the Management Board of the ECHA necessarily includes fixing the amount of the charges in question, subject to receiving a favourable opinion from the Commission, otherwise Article 11 would be deprived of its practical effect. Since Article 13(4) of Regulation No 340/2008, which specifically relates to the administrative charge, refers to the procedure laid down in Article 11(5) thereof, none of the evidence submitted by the applicant suggests that the ECHA lacked the necessary power to fix the amount of that charge.
As regards Article 59 of Regulation No 2343/2002, relied on by the applicant, it must be noted that, under Article 99 of Regulation No 1907/2006, the financial rules applicable to the ECHA may not depart from Regulation No 2343/2002. In that connection, Article 5(a) of Regulation No 2343/2002 provides that the budget of an EU body, such as the ECHA, comprises, inter alia, ‘own revenue consisting of all fees and charges which the Community body is authorised to collect by virtue of the tasks entrusted to it, and any other revenue’. Article 59 of Regulation No 2343/2002 refers to the situation where ‘fees and charges are entirely determined by legislation or decisions of the management board’. In contrast to what the applicant suggests, it cannot be inferred from this latter provision that the management boards of EU bodies do not have, where appropriate, the necessary power to determine fees or charges. In the present case, that power — as regards the administrative charge — was conferred on the Management Board of the ECHA by Article 13(4) of Regulation No 340/2008, subject to receiving a favourable opinion from the Commission.
In view of all those considerations, the first plea in law put forward by the applicant must be rejected as unfounded.
Second plea in law, alleging misapplication of Recommendation 2003/361 and infringement of the principle of proportionality
The applicant submits that, even if the sub-criteria of Recommendation 2003/361 had to be considered as applying to this case, the ECHA misapplied them. It claims that, in the case in point, the ECHA took account of the applicant’s relationships with undertakings operating in different markets, and even in sectors excluded from the scope of Regulation No 1907/2006. Accordingly, there were no legitimate and reasonable grounds for asking the applicant to report on its relationships with those undertakings. That is particularly true in the case of the applicant, which is a producer rather than an importer. These two activities are very different and should not be subject to the same rules. The ECHA’s approach is tantamount to making undertakings with very different production levels and turnovers pay the same fee. The effect is that different economic situations are treated in the same way. Recommendation 2003/361 lays down three main criteria in order to define SMEs. The sub-criteria in that recommendation — which pursue different aims — provide, however, that undertakings which have a relationship through a natural person or group of natural persons can be regarded as linked only if they operate in the same market or in adjacent markets. In the present case, the applicant is a ‘group of natural persons acting jointly’. The ECHA should therefore have omitted from its examination the applicant’s possible relationships with the third companies in question which do not operate in the same market or in an adjacent market. The ECHA’s decision to apply the rules laid down in Recommendation 2003/361 strictly also infringes the principle of proportionality. Lastly, the applicant claims that the ECHA did not verify the existence or absence of actual control over voting rights.
The ECHA challenges the applicant’s arguments.
First, there is no legal basis for the applicant’s attempt to exclude from the definition of SMEs, in the context of the application of Regulation No 340/2008, relationships which might exist between undertakings operating in different markets, and even in sectors excluded from the scope of Regulation No 1907/2006. In addition, as is apparent from recital 9 of Recommendation 2003/361, to which Regulation No 340/2008 refers, the purpose of examining the relationships which might exist between different undertakings is to remove from the category of SMEs groups of undertakings whose economic power exceeds that of a SME. In the absence of specific provision to that effect, such economic power cannot be restricted to groups of undertakings operating in the same markets, even in sectors falling within the scope of Regulation No 1907/2006. Any other interpretation would render the definition of SMEs set out in Recommendation 2003/361 meaningless, a definition which applies, by express reference, within the framework of Regulation No 1907/2006. The same is true of the distinction drawn by the applicant between ‘producers’ and ‘importers’.
Secondly, the applicant’s argument that it is a ‘group of natural persons acting jointly’, within the meaning of Recommendation 2003/361, is manifestly unfounded. It should be pointed out in that regard that the fourth subparagraph of Article 3(3) of the Annex to Recommendation 2003/361 provides that ‘enterprises which have one or other of [the relationships listed in letters (a) to (d) of the first subparagraph of Article 3(3) of that Annex] through a natural person or group of natural persons acting jointly are also considered linked enterprises if they engage in their activity or in part of their activity in the same relevant market or in adjacent markets’. The applicant has, directly with Saced and Cogefin and not through a natural person or group of natural persons acting jointly, relationships of the kind listed in letter (a) of the first subparagraph of Article 3(3) of the Annex to Recommendation 2003/361, since it holds more than 50% of the capital of those undertakings and thus, as the ECHA rightly pointed out in its pleadings, there is a presumption that it holds a majority of the voting rights therein. The applicant failed to demonstrate that that was not the case even though it is for the applicant, at the request of the ECHA, to show that it is entitled to a reduction or fee waiver (Article 13(4) of Regulation No 340/2008). The fact that the applicant’s shares are held by natural persons cannot alter that finding.
Thirdly, the applicant bases its claim that the principle of proportionality was infringed on an alleged misapplication by the ECHA of Recommendation 2003/361. Since, for the reasons set out immediately above, the ECHA did not commit any error in the application of Recommendation 2003/361, the applicant’s argument alleging infringement of the principle of proportionality must also be rejected.
In the light of the foregoing, the second plea in law put forward by the applicant must be dismissed as unfounded.
Third plea in law, alleging lack of powers and misuse of powers on the part of the Executive Director of the ECHA
Further to its first plea, the applicant submits that the Executive Director of the ECHA does not have the power to adopt or sign decisions concerning the size of registered undertakings or to decide whether the full fee should be applied rather than the reduced fee and to impose an administrative charge. The sole duty of the Executive Director is to correct decisions of the ECHA following appeal. Decision SME(2013) 1328 is, it submits, therefore unlawful.
The ECHA challenges the applicant’s arguments.
Suffice it to note, as the ECHA correctly pointed out in its pleadings, that Article 83(2) of Regulation No 1907/2006 provides that the Executive Director is to be the ‘legal representative’ of the ECHA. In that context, the Executive Director is responsible for, inter alia, the ‘day-to-day administration’ of the ECHA (Article 83(2)(a) of Regulation No 1907/2006). Furthermore, under Article 100(2) of Regulation No 1907/2006, the ECHA ‘shall be represented by its Executive Director’. In addition, in the implementation of the budget of the ECHA for which he is responsible, the Executive Director performs the duties of authorising officer (Article 97 of Regulation No 1907/2006). Since the ECHA had the necessary power to verify the size of registrant undertakings, as mentioned in the examination of the applicant’s first plea, and, consequently, to seek payment of the fees and administrative charges owed to it, the signing by the ECHA’s Executive Director of Decision SME(2013) 1328 is not unlawful.
The third plea in law put forward by the applicant must therefore be dismissed as unfounded.
Fourth plea in law, alleging lack of powers, misuse of powers and ultra vires on the part of the ECHA as well as infringement of Article 5 TEU in the adoption of Decisions MB/D/29/2010 and MB/21/2012/D
The applicant recalls that, in connection with the levying of fees, the ECHA’s powers are limited to enforcement. The only duty entrusted to the Management Board of the ECHA is the classification of charges. It is for the Commission to set the amount of those charges, in accordance with the rule laid down in Article 74(1) of Regulation No 1907/2006. Furthermore, Article 13(4) of Regulation No 340/2008 refers to ‘administrative charge’ in the singular, which precludes the fixing of different charges depending on the size of the undertaking, in contrast to what occurred in this case. In addition, the ECHA was unable to determine the amount of the administrative charge which is intended for income under its balance sheet. Lastly, Regulation No 340/2008 and Implementing Regulation No 254/2013 do not contain any specific provisions on the administrative charge or, at least, on the application of that charge. The Commission thus preferred to forgo such a charge for the time being. The ECHA was therefore not able, by means of Decisions MB/D/29/2010 and MB/21/2012/D, to fix the amount of the administrative charge. The ECHA substituted itself for the national authorities, in breach of Article 5 TEU, by introducing an economic sanction in the guise of an administrative charge. Also according to the applicant, the ECHA’s argument that the aim of the administrative charge is to recover costs borne by it is at odds with the fact that some controlled undertakings do not have to pay that charge if their declaration is found, after review, to be correct. If the purpose of the administrative charges had been to recover costs borne by the ECHA, those costs should have been fairly divided between all undertakings applying for registration.
The ECHA challenges the applicant’s arguments.
As a preliminary point, it should be noted that the fourth plea of the action refers specifically to Decisions MB/D/29/2010 and MB/21/2012/D.
However, the action for annulment, in so far as it is directed against Decisions MB/D/29/2010 and MB/21/2012/D, is inadmissible (see paragraphs 44 and 60 above).
Even if the fourth plea could be construed as actually raising a plea of illegality against Decisions MB/D/29/2010 and MB/21/2012/D, it would, in any event, be unfounded.
First, the applicant’s arguments questioning the ECHA’s power to fix the amount of the administrative charge and to determine the amount thereof intended for income under the balance sheet essentially tie in with the additional arguments put forward in the context of the first plea, directed against Decision SME(2013) 1328. For the same reasons as those mentioned in paragraphs 93 and 94 above, the applicant’s arguments in this regard must be rejected.
Secondly, the claim that, in breach of Article 5 TEU, the ECHA substituted itself for the national authorities by introducing an economic sanction in the guise of an administrative charge is unfounded. It should be recalled that recital 11 of Regulation No 340/2008 states that ‘the submission of false information should be discouraged by the imposition of an administrative charge by the [ECHA] and a dissuasive fine by the Member States, if appropriate’. It follows from that recital that the imposition of an administrative charge contributes to the objective of discouraging the transmission of false information by undertakings. It is also clear from that recital that the administrative charge cannot be treated as a fine (judgment of 2 October 2014, Spraylat v ECHA,
T‑177/12
,
EU:T:2014:849
, paragraph
). Nonetheless, the applicant failed to produce evidence to show that the administrative charge imposed on it in the present case was tantamount to a fine. In particular, the applicant’s argument is essentially based on the claim that the administrative charge was calculated by reference to the verification-related costs borne by the ECHA, including costs which, ultimately, will not be borne by undertakings which have correctly provided information on their size. That, in itself, cannot lead to the conclusion that the amount of the administrative charge, as imposed on the applicant in this instance, is tantamount to a fine, since the charge in question also contributes to the objective of discouraging the transmission of false information by undertakings. In addition, Article 13(4) of Regulation No 340/2008 provides that, where a natural or legal person that claims to be entitled to a reduction or a fee waiver cannot demonstrate that it is entitled to such a reduction or waiver, the ECHA is to levy the full fee or charge as well as an administrative charge. It follows that only natural or legal persons that cannot demonstrate their entitlement to a reduction or a fee waiver are liable to pay an administrative charge to the ECHA.
Thirdly, the applicant’s argument that Article 13(4) of Regulation No 340/2008 precludes the fixing of different administrative charges depending on the size of the undertaking is based on a misinterpretation of the use of ‘administrative charge’ in the singular in the relevant regulation. The use of this term in the singular, in the context of Article 13(4) of Regulation No 340/2008, means that, where a natural or legal person cannot demonstrate an entitlement to the reduction claimed, the ECHA is to impose an administrative charge. That does not mean that the amount of the administrative charge should be the same for all registrant undertakings, regardless of their size. In particular, it must be noted that one of the objectives of Regulation No 1907/2006 is to take account of the special circumstances of SMEs, as is apparent from, inter alia, recital 8 and Article 74(3) of that regulation. In addition, and more specifically, recital 9 of Regulation No 340/2008 states that ‘reduced fees and charges should … apply to [SMEs]’. It should also be borne in mind that, as is apparent from the case-law cited in paragraph 112 above, the imposition of an administrative charge contributes to the objective of discouraging the transmission of false information by undertakings. The pursuit of that objective may, where appropriate, require account to be taken of the actual size of registrant companies.
For all of these reasons, the fourth plea in law put forward by the applicant must be dismissed and, therefore, the action must be dismissed in so far as it seeks the annulment of Decision SME(2013) 1328.
Heads of claim seeking reimbursement or compensation from the ECHA
By means of its last two heads of claim, the applicant seeks reimbursement of sums that it claims the ECHA unduly received or compensation from the ECHA for harm suffered.
Without it being necessary to rule on the admissibility of these two heads of claim, it is sufficient to note that they are closely linked to the main application seeking annulment of the contested measures and are not based on pleas that are different from those considered in the context of the action for annulment. Since those pleas were rejected as unfounded, the heads of claim seeking reimbursement or compensation from the ECHA should also be rejected.
Costs
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission and the ECHA.

On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:

1.
Dismisses the action in so far as it is brought against the European Commission as inadmissible;

2.
Dismisses the action in so far as it is brought against the European Chemicals Agency (ECHA) as inadmissible in part and unfounded in part;

3.
Orders Leone La Ferla SpA to pay the costs.

Frimodt Nielsen
Dehousse
Collins
Delivered in open court in Luxembourg on 15 September 2016.
[Signatures]
Table of contents

Background to the dispute

Procedure and forms of order sought

Law

1. Admissibility of the action in so far as it is directed against the Commission

2. Admissibility of certain heads of claim in the action for annulment brought against the ECHA

3. Substance

Claims for annulment

Preliminary remarks on the statement of reasons for Decision SME(2013) 1328

First plea in law, alleging lack of powers, misuse of powers and ultra vires on the part of the ECHA in the adoption of Decision SME(2013) 1328

– First part of the first plea in law, alleging, in essence, that the ECHA has no power to assess the size of registrant undertakings

– Second part of the first plea in law, alleging, in essence, ultra vires or misuse of powers in the application of Recommendation 2003/361

– Third part of the first plea in law, alleging, in essence, ultra vires or misuse of powers as regards the information requested from the applicant

– Additional arguments put forward at the reply stage

Second plea in law, alleging misapplication of Recommendation 2003/361 and infringement of the principle of proportionality

Third plea in law, alleging lack of powers and misuse of powers on the part of the Executive Director of the ECHA

Fourth plea in law, alleging lack of powers, misuse of powers and ultra vires on the part of the ECHA as well as infringement of Article 5 TEU in the adoption of Decisions MB/D/29/2010 and MB/21/2012/D

Heads of claim seeking reimbursement or compensation from the ECHA

Costs
(
*1
)	Language of the case: Italian.