CELEX: 62016TJ0855
REACH
Fee payable for registration of a substance
Reduction granted to SMEs
Verification by the ECHA of the declaration relating to the size of the enterprise
Decision imposing an administrative charge
Recommendation 2003/361/EC
Exceeding of financial ceilings
Concept of ‘linked enterprise’

Background to the dispute
The applicant, Fertisac, SL, is a company incorporated under Spanish law which manufactures substances subject to registration with the European Chemicals Agency (ECHA) 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
).
On 30 November 2010, the applicant sought registration of a chemical substance under Regulation No 1907/2006.
As part of the registration procedure, the applicant stated that it was a medium-sized enterprise within the meaning 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 enabled the applicant to receive a reduction of the fee due under Article 6(4) of Regulation No 1907/2006.
In relation to that registration, the ECHA issued an invoice (No 10024865) for an amount of EUR 16275 corresponding to the fee payable by a medium-sized enterprise for a joint submission relating to over 1000 tonnes of substances, as was the case in this instance.
By letter of 27 August 2013, the ECHA informed the applicant that the small and medium-sized enterprise (SME) status it had claimed at the time of registration was to be the object of a verification procedure. It invited the applicant to furnish evidence capable of establishing its SME status.
On 15 November 2016, following an exchange of emails and documents, the ECHA adopted Decision SME(2016) 5150. In that decision, the ECHA found that the applicant was to be classified as a large enterprise and accordingly could not benefit from the reduced fee applicable to SMEs under Recommendation 2003/361.
Decision SME(2016) 5150 declared that the applicant was liable, first, for an amount corresponding to the difference between the fee paid by the applicant and the fee for a large undertaking and, secondly, for an administrative charge corresponding to 2.5 times the financial gain obtained from the incorrect declaration regarding the size of the enterprise.
Two invoices were attached to that decision: invoice No 10060160 for EUR 6975 and invoice No 10060161 for EUR 17437 (together ‘the contested invoices’).
Procedure and forms of order sought
By application lodged at the Court Registry on 7 December 2016, the applicant brought the present action.
By separate document lodged on the same date, the applicant submitted an application for suspension of operation of Decision SME(2016) 5150 and the contested invoices. By order of 10 March 2017, Fertisac v ECHA (
T‑855/16 R
, not published,
EU:T:2017:155
), the President of the Court dismissed that application and reserved the costs.
The defence of the ECHA was lodged at the Court Registry on 17 March 2017.
Since the applicant did not lodge a reply, the written stage of the procedure was closed on 16 May 2017.
Neither of the parties submitted a request for a hearing within the time limit laid down in Article 106(2) of the Rules of Procedure of the General Court. The Court (First Chamber) decided, in accordance with Article 106(3) of the Rules of Procedure, to give judgment in the case without holding an oral hearing.
The applicant claims that the Court should:
–
annul Decision SME(2016) 5150;
–
confirm the SME status of the applicant;
–
annul the contested invoices;
–
order the ECHA to pay the costs.
The ECHA contends that the Court should:
–
declare inadmissible the application for annulment of the contested invoices;
–
dismiss the application for annulment of Decision SME(2016) 5150;
–
order the applicant to pay the costs.
Law
Admissibility
The application for annulment of the contested invoices
By its third head of claim, the applicant asks the Court to annul the contested invoices.
Against that head of claim, the ECHA raises a plea of inadmissibility on the ground that the contested invoices do not constitute measures open to challenge.
In that regard, it should be noted that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment (judgments of 11 November 1981, IBM v Commission,
60/81
,
EU:C:1981:264
, paragraph
; of 12 September 2006, Reynolds Tobacco and Others v Commission,
C‑131/03 P
,
EU:C:2006:541
, paragraph
; and of 6 December 2007, Commission v Ferriere Nord,
C‑516/06 P
,
EU:C:2007:763
, paragraph
).
Furthermore, 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, since the form in which it is cast is, in principle, immaterial (judgments of 11 November 1981, IBM v Commission,
60/81
,
EU:C:1981:264
, paragraph
, and of 18 November 2010, NDSHT v Commission,
C‑322/09 P
,
EU:C:2010:701
, paragraphs
and
).
In the present case, the ECHA, by Decision SME(2016) 5150, ordered the applicant to pay the difference between the fee paid by the applicant and the fee applicable to large undertakings, together with an administrative fee. In that decision, the ECHA stated that the amounts corresponding to those two items were set out in the attached invoices, that is to say, the contested invoices. Decision SME(2016) 5150 and the contested invoices annexed thereto are of the same date and were sent to the same addressee, the applicant, in a single envelope.
In that regard, it should be recalled that, as a general rule under the case-law, annexes are considered to form part of the document to which they are attached and, consequently, the normative force accorded to any annexes is identical to that accorded to the provisions forming the main body of the document.
That case-law has, in particular, been developed in connection with annexes to directives. Such annexes have not been regarded as distinct from, but rather as constituting an integral component of, those directives, on the same footing as the provisions contained therein (see judgment of 15 April 2008, Impact,
C‑268/06
,
EU:C:2008:223
, paragraph
concerning a framework agreement annexed to a directive).
It is apparent from the documents before the Court that the case-law invoked by the defendant, relating to measures adopted by the ECHA upon completion of verification procedures, makes a distinction between invoices and decisions and focuses on identifying, from among those measures, which one specifies the substantive obligations of the applicant.
However, that case-law relates to the scenarios in connection with which it was adopted. In the three cases the ECHA makes reference to and in which the Court examined that topic, the invoices had not been annexed to the relevant decisions, but had rather been issued separately by the ECHA, sometimes several days apart, and therefore appeared to be separate measures. Given that such a scenario could affect the admissibility of an action, it was necessary for the Court to identify, from among those measures, which one modified the applicant’s legal position, as required under the case-law (judgments of 2 October 2014, Spraylat v ECHA,
T‑177/12
,
EU:T:2014:849
, paragraph
; of 15 September 2016, La Ferla v Commission and ECHA,
T‑392/13
,
EU:T:2016:478
, paragraph
; and of 15 September 2016, K Chimica v ECHA,
T‑675/13
,
EU:T:2016:480
, paragraph
).
The present case is different since, in this instance, there is nothing to separate Decision SME (2016) 5150 from the contested invoices. Thus, taken together, they form a single measure consisting of two parts, namely an administrative part (Decision SME(2016) 5150 itself) and an accounting part (the contested invoices annexed thereto). That single measure expresses the finding of the ECHA that the evidence legally required had not been adduced and demonstrates the intention of the ECHA to impose the relevant consequences by levying financial obligations on the applicant.
That single measure (‘the contested decision’) produces binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position since it requires the applicant to renounce the SME status which it still claims to have.
The consequence of the contested decision is that the applicant cannot benefit from the reduced fee applicable to SMEs and that it must pay the difference between the amount it has already paid and the fee applicable to large undertakings, as well as paying the administrative charge imposed by the legislation in such circumstances.
Given that it produces such effects, the contested decision may be the subject of an action for annulment. Accordingly, in so far as it is directed against the application for annulment of the contested invoices, the plea of inadmissibility raised by the ECHA must be rejected.
The claim seeking confirmation of the applicant’s SME status
By its second head of claim, the applicant asks the Court to confirm its SME status.
In that regard, it should be recalled that, in the context of an action for annulment under Article 263 TFEU, the jurisdiction of the Courts of the European Union is limited to judicial review. If the action is well founded, the Courts of the European Union declare the contested measure to be void under Article 264 TFEU. It is then for the institution whose measure has been declared void to take the necessary measures to comply with the judgment, in accordance with Article 266 TFEU.
It follows that, when the Court has before it an application contesting a fee and administrative charge levied on an enterprise as a result of an error in its declaration regarding size, the Court cannot rule on the SME status of that enterprise since, by such a declaration, the Court would be assuming the role of the ECHA, in contravention of the abovementioned TFEU provisions (see, to that effect, judgment of 15 December 2005, Infront WM v Commission,
T‑33/01
,
EU:T:2005:461
, paragraph
, and order of 16 December 2016, Groupement pastoral de Oust and Others v Commission,
T‑663/16
, not published,
EU:T:2016:759
, paragraph
).
It follows that the second head of claim is inadmissible since the confirmation requested is beyond the jurisdiction of the Court in the context of an action for annulment.
Substance
The applicant puts forward two pleas in law in support of its action against the contested decision. By its first plea, the applicant submits that, by considering the applicant to be a large enterprise, the ECHA misinterpreted Article 2(1) of the Annex to Recommendation 2003/361, which sets out the definition of SMEs. The second plea alleges an erroneous interpretation of Recommendation 2003/361 in so far as the ECHA classified three further enterprises as being ‘linked enterprises’.
The first plea in law, alleging misinterpretation of the ceilings laid down in Article 2(1) of the Annex to Recommendation 2003/361
By its first plea, the applicant submits that it has never had over 250 employees and that, consequently, it cannot be classified as a large enterprise. In that regard, the applicant refers to Article 2(1) of the Annex to Recommendation 2003/361 which lays down the conditions which must be fulfilled for an undertaking to be classified as an SME.
The ECHA disputes the applicant’s arguments.
In that regard, it should be noted that, according to the contested decision, the applicant had to be classified as a large enterprise since, on the basis of the information obtained, the ceilings set out in the Annex to Recommendation 2003/361 had been exceeded.
It is apparent from the document entitled ‘Informe de cálculo de PYME’ (SME calculation report) and annexed to the contested decision, that the ECHA justified its decision to classify the applicant as a large enterprise on account of the fact that, in the financial years 2008 and 2009, the annual balance sheet total to be taken into account when calculating the size of the enterprise exceeded EUR 43 million and its turnover exceeded EUR 50 million.
For the purpose of assessing the legality of the contested decision, it must be borne in mind that the relevant rules refer to Recommendation 2003/361 for a definition of SMEs. Article 3(36) of Regulation No 1907/2006 defines SMEs as small and medium-sized enterprises ‘as defined in [Recommendation 2003/361]’. In addition, Article 2 of Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the ECHA pursuant to Regulation No 1907/2006 (
OJ 2008 L 107, p. 6
), provides that a medium enterprise ‘means a medium-sized enterprise within the meaning of Recommendation [2003/361]’.
Recommendation 2003/361, rendered applicable by Regulation No 1907/2006 and Regulation No 340/2008, contains an annex, title I of which concerns the ‘definition of [SMEs] adopted by the Commission’. According to Article 2(1) of that annex, ‘the category of [SMEs] is made up of enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million’.
It is clear from Article 2(1) of the Annex to Recommendation 2003/361 that there are two criteria for the purposes of determining whether an enterprise may be classified as an SME, one relating to the financial characteristics of the enterprise and the other relating to the number of employees.
The applicant claims that, for an enterprise to be denied SME status, the ceilings laid down by both criteria must be exceeded, and that exceeding the ceiling of a single criterion does not exclude an enterprise from being classified as an SME. The applicant claims that it is apparent from recital 4 of Recommendation 2003/361 that, of the two criteria, the staff headcount criterion is particularly important. In the present case, the applicant claims it has never exceeded the ceiling inherent in that criterion.
In that regard, it should be noted that, according to the case-law, the staff headcount criterion and the financial characteristics criterion must, in application of the relevant legislation, be applied cumulatively.
The Court ruled to that effect in its order of 16 September 2015, Calestep v ECHA (
T‑89/13
,
EU:T:2015:711
, paragraph
), which specifically related to the interpretation of Article 2(1) of the Annex to Recommendation 2003/361, and it is that article which is at the heart of the argument put forward by the applicant.
That decision followed the case-law developed in the judgment of 8 July 2004 (Dalmine v Commission (
T‑50/00
,
EU:T:2004:220
, paragraphs
and
) in relation to the equivalent provision in Commission Recommendation 96/280/EC of 3 April 1996 concerning the definition of small and medium-sized enterprises (
OJ 1996 L 107, p. 4
), which preceded, and had the same objectives as, Recommendation 2003/361 and, in essence, contained similar criteria relating to the staff headcount and financial characteristics of the enterprise.
The case-law established in the order of 16 September 2015, Calestep v ECHA (
T‑89/13
,
EU:T:2015:711
) is based on the wording used in Recommendation 2003/361, where the conjunction ‘and’ was interpreted as demonstrating the intention of the author of the measure to ‘coordinate’ and therefore cumulate the criteria, rather than presenting them as possibilities to be examined as alternatives (order of 16 September 2015, Calestep v ECHA,
T‑89/13
,
EU:T:2015:711
, paragraph
).
That case-law is also based on recital 4 of Recommendation 2003/361 which states that ‘[the staff headcount criterion] … remains undoubtedly one of the most important, and must be observed as the main criterion; introducing a financial criterion is nonetheless a necessary adjunct in order to grasp the real scale and performance of an enterprise and its position compared to its competitors’ (order of 16 September 2015, Calestep v ECHA,
T‑89/13
,
EU:T:2015:711
, paragraph
).
That cumulative application is in line with the Report from the Commission to the Council [SEC(1992) 351 final] of 29 April 1992 concerning SME definitions used in Community measures. That report preceded the adoption of Recommendation 96/280 which also refers to the report in its seventh recital.
In that report, the European Commission advocated a definition based on a combination of criteria — in particular, the number of employees, the turnover and the balance sheet total — since, in its view, a single criterion could not provide a satisfactory definition of SMEs.
Finally, it should be noted that the fee reduction granted to SMEs is designed to take account of the special circumstances of such enterprises in comparison with large enterprises. Since that reduction is intended for a particular category of economic actors and constitutes an exception, it must be interpreted restrictively in the light of the conditions governing its application.
That interpretation cannot be called into question by the applicant’s argument that the staff headcount criterion, considered in isolation, is decisive, based of Article 4(2) of the Annex to Recommendation 2003/361 which is referenced in the guide entitled ‘How to determine the company size category’ published on the ECHA website.
In that regard, it should be pointed out that the provision cited by the applicant refers to a situation where, in an exceptional year, an enterprise exceeds one of the ceilings laid down in that provision, in which case the enterprise may, by derogation from the rule, maintain its SME status provided that such an excess is limited to one financial year.
That provision does not alter the rule that, in order to be classified as an SME, an enterprise may not exceed the ceilings relating to staff headcount and certain financial characteristics, but rather introduces an exception in certain circumstances. However, the applicant has failed to establish that such circumstances exist in the present case.
It follows from the foregoing considerations that, in classifying the applicant as a large enterprise, the ECHA did not err in its interpretation of the criteria laid down in Article 2(1) of the Annex to Recommendation 2003/361.
In the light of the foregoing, the first plea in law must be rejected.
The second plea in law, alleging misinterpretation of the concept of a ‘linked enterprise’ within the meaning of Recommendation 2003/361
By its second plea, the applicant maintains that it is not part of a group of ‘linked enterprises’ and that, accordingly, only its data and that relating to its ‘partner enterprises’ should be taken into account for the purposes of determining its size. In its exchanges with the ECHA during the verification procedure relating to its size declaration, it identified its ‘partner enterprises’ as being Ibérica de Gestión Inmobiliaria y Arrendaticia SL and Agroquimes SL.
The ECHA disputes the applicant’s arguments.
In that regard, it should be noted that, in reaching its conclusion, the ECHA relied on a set of data concerning the applicant itself; its ‘partner enterprise’, Agroquimes; and three other enterprises considered to be ‘linked’ to the applicant, Ibérica de Gestión Inmobiliaria y Arrendaticia, Constantino Gutiérrez SA and Medifer Liquids SL.
The applicant does not contest that Agroquimes is a ‘partner enterprise’, but disputes that the other three enterprises should be classified as being ‘linked’ to it within the meaning of the legislation.
In order to decide this point, it should be recalled that Article 3(3) of the Annex to Recommendation 2003/361 lays down the criteria for determining the conditions which must be fulfilled for the classifications of ‘linked enterprise’ and ‘partner enterprise’ to apply.
As regards the first of those classifications, the first subparagraph of Article 3(3) of the Annex to Recommendation 2003/361 provides that ‘“Linked enterprises” are enterprises which have any of the following relationships with each other: (a) an enterprise has a majority of the shareholders’ or members’ voting rights in another enterprise’. In addition, the third subparagraph of Article 3(3) of the Annex to Recommendation 2003/361 provides that ‘enterprises having any of the relationships described in the first subparagraph through one or more other enterprises … are also considered to be linked’.
As regards the second classification, the first subparagraph of Article 3(2) of the Annex to Recommendation 2003/361 states that ‘partner enterprises’ are all enterprises which are not classified as ‘linked enterprises’ and between which there is the following relationship: an enterprise (upstream enterprise) holds, either solely or jointly with one or more ‘linked enterprises’, 25% or more of the capital or voting rights of another enterprise (downstream enterprise).
In accordance with the first subparagraph of Article 6(2) of the Annex to Recommendation 2003/361, where an enterprise has ‘partner enterprises’ or ‘linked enterprises’, the data, for the purposes of assessing whether the criteria are satisfied, are to be determined on the basis of the accounts and other data of the enterprise or, where they exist, the consolidated accounts of the enterprise, or the consolidated accounts in which the enterprise is included through consolidation.
In accordance with the second subparagraph of Article 6(2) of the Annex to Recommendation 2003/361, such data determination requires that the data of ‘partner enterprises’ situated immediately upstream or downstream from the enterprise in question be taken into account in proportion to the percentage interest in the capital or voting rights, whichever is greater of those two percentages.
To that data, the ECHA must add, pursuant to the third subparagraph of Article 6(2) of the Annex to Recommendation 2003/361, 100% of the data of any enterprise, which is ‘linked’ directly or indirectly to the enterprise in question, where the data were not already included through consolidation in the accounts.
Having recalled those rules, it is necessary to analyse the situation of the enterprises in question in order to determine their status and verify the extent to which their data should have been taken into account as part of the procedure verifying the applicant’s declaration.
In that regard, the Court upholds the finding of the ECHA to the effect that the three enterprises in question should be classified as being ‘linked’ to the applicant.
As regards Ibérica de Gestión Inmobiliaria y Arrendaticia, that conclusion is based on the annual accounts of that enterprise which, as indicated by the ECHA, show that it held 69.996% of the applicant’s capital during the financial years 2009 and 2010. Since that enterprise owned the majority of the applicant’s capital, it could be regarded as the parent company of the applicant and accordingly it was appropriate to include 100% of its data in the calculation carried out for the purposes of verifying the status of the applicant, as required under Recommendation 2003/361. In the present case, the applicant sent the parent company’s annual accounts to the ECHA by email of 12 September 2013.
As regards the other two enterprises, namely Constantino Gutiérrez and Medifer Liquids, the ECHA found that the former held 89.10% of the capital of Ibérica de Gestión Inmobiliaria y Arrendaticia and 100% of the capital of the latter. That finding was based on the consolidated financial statements of Constantino Gutiérrez for the financial year from 1 July 2010 to 30 June 2011, which were communicated by the applicant by email of 16 September 2013.
Those percentages exceed the threshold referred to in paragraph 60 above, thus confirming that those entities are ‘linked enterprises’ within the meaning of Recommendation 2003/361. Accordingly, the ECHA was right to find that Constantino Gutiérrez and Medifer Liquids were also ‘linked’ to the applicant at the time of the registration procedure for the substance at issue in the present case.
In accordance with the third subparagraph of Article 6(2) of the Annex to Recommendation 2003/361, the ECHA was right to include, as it was indeed required to, 100% of the data of the three companies identified as ‘linked enterprises’, namely Ibérica de Gestión Inmobiliaria y Arrendaticia, Constantino Gutiérrez and Medifer Liquids, in the calculation carried out for the purposes of verifying the applicant’s status.
In the light of the foregoing considerations, the second plea in law must be rejected and, therefore, the action must be dismissed in its entirety.
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 forms of order sought by the ECHA, including those relating to the proceedings for interim relief.

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

1.
Dismisses the action;

2.
Orders Fertisac, SL to pay the costs, including those relating to the proceedings for interim relief.

Pelikánová
Nihoul
Svenningsen
Delivered in open court in Luxembourg on 7 March 2018.
[Signatures]
(
*1
)	Language of the case: Spanish.