CELEX: 62013TJ0620
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
Determination of the size of the undertaking
Power of the ECHA
Obligation to state reasons

Background to the dispute
On 20, 22, 23 and 25 November 2010, the applicant, Marchi Industriale SpA, registered several 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 indicated that it was a ‘medium-sized’ enterprise, for the purposes of Commission Recommendation 2003/361/CE 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 for any application for registration under Article 6(4) of Regulation No 1907/2006. In accordance with Article 74(1) of that regulation, that fee was specified 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 (EC) 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. 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 European Chemicals Agency (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 the annex to that decision, as amended by Decision MB/21/2012/D of the ECHA Management Board, of 12 February 2013, 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 20, 22, 23 and 25 November 2010, the ECHA issued six invoices, each amounting to EUR 16275. That amount corresponded, according to Annex I to Regulation No 340/2008, as applicable at the material time, to the fee payable by a medium-sized enterprise, in a joint submission, for substances above 1000 tonnes.
On 24 August 2012, the applicant was requested by the ECHA to supply a certain number of documents for purposes of verifying the declaration by which it had indicated that it was a medium-sized enterprise.
On 19 September 2013, following exchanges of documents and emails, the ECHA adopted Decision SME(2013) 3747 (‘the contested decision’). In that decision, the ECHA found that the applicant should be regarded as a large enterprise and that it was required to pay the corresponding fee. In those circumstances, the ECHA informed the applicant that it was going to send it invoices covering the difference between the fees originally paid and the fees ultimately due as well as an invoice of EUR 19900 for payment of the administrative charge.
On 10 October 2013, the applicant filed, under Articles 91 and 92 of Regulation No 1907/2006, an appeal against the contested decision before the Board of Appeal of the ECHA.
On 2 April 2014, the Board of Appeal of the ECHA decided to suspend the procedure before it, pending a decision of the General Court in the present case.
Procedure and forms of order sought
By application lodged at the Registry of the Court on 22 November 2013, the applicant brought the present action. This action is part of a series of related cases.
The first case of that series of related cases was the subject of an annulling judgment of 2 October 2014, Spraylat v ECHA (
T‑177/12
,
EU:T:2014:849
).
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 2014Spraylat v ECHA (
T‑177/12
, ECR,
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 October 2015, on a proposal from the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of its Rules of Procedure, requested the parties to reply to a question and produce certain documents. The parties complied with those requests within the prescribed period.
The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 16 December 2015.
The applicant claims that the Court should annul and thus declare invalid the contested decision and, consequently, deprive that decision of any effect, including by annulling the invoices issued for the recovery of higher fees and in respect of penalties allegedly payable.
At the hearing, the applicant withdrew its head of claim seeking annulment of the invoices issued pursuant to the contested decision, note of which was taken.
THE ECHA contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
The Court’s jurisdiction
The ECHA states that the Board of Appeal does not have jurisdiction in this dispute, which was also referred to it, to the extent that the contested decision is not one of the decisions subject to appeal before it.
The applicant states that this action does not imply any withdrawal on its part from the appeal that it lodged before the Board of Appeal of the ECHA. The applicant also specified, at the hearing, that it took the view that the Court has jurisdiction to hear this dispute.
It should be recalled that Article 94(1) of Regulation No 1907/2006 provides that ‘an action may be brought before the [General Court] or the Court of Justice, in accordance with Article [263 TFEU], contesting a decision taken by the Board of Appeal or, in cases where no right of appeal lies before the Board, by the [ECHA]’.
In that regard, Article 91(1) of Regulation No 1907/2006 provides that ‘[a]n appeal may be brought [before the Board of Appeal] against decisions of the [ECHA] taken pursuant to Article 9, Article 20, Article 27(6), Article 30(2) and (3) and Article 51 [of Regulation No 1907/2006]’.
The contested decision was not taken under the provisions referred to in Article 91(1) of Regulation No 1907/2006 but under Article 13(4) of Regulation No 340/2008 and Articles 2 and 4 of Decision MB/D/29/2010. It should also be pointed out that neither Regulation No 340/2008 nor Decision MB/D/29/2010 was adopted under the provisions referred to in Article 91(1) of Regulation No 1907/2006.
Furthermore, it should be noted that the provisions of Articles 9, 27, 30 and 51 of Regulation No 1907/2006, referred to in Article 91(1) of that regulation, concern decisions that have no connection with the fee to be paid by registering enterprises.
Article 20 of Regulation No 1907/2006 covers the ‘[d]uties of [the ECHA]’. Article 20(5) provides that ‘[a]n appeal may be brought, in accordance with Articles 91, 92 and 93 [of Regulation No 1907/2006], against [ECHA] decisions under paragraph 2 of this Article’. Article 20(2) concerns the ECHA’s check of the ‘completeness’ of each registration, including the payment of the fee. It should be noted, however, that that check ‘[does] not include an assessment of the quality or the adequacy of any data or justifications submitted’. Moreover, the third and fourth paragraphs of Article 20(2) Regulation No 1907/2006 provide that if a registration ‘is incomplete’ and the registrant ‘fails to complete his registration within the deadline set’, the ECHA ‘[is to] reject the registration’. In the present case, in addition to the fact that the contested decision is not based on Article 20(2) of Regulation No 1907/2006, it is not based on refusal of registration of the substances at issue.
Accordingly, in the light of all those factors, it must be held that the Court has jurisdiction in this action, notwithstanding the appeal against the contested decision also lodged by the applicant before the Board of Appeal of the ECHA (see, to that effect, order of 16 September 2015, Calestep v ECHA,
T‑89/13
,
EU:T:2015:711
, paragraphs
to
).
Substance
The applicant puts forward two pleas in law in support of its action. The first plea alleges a failure to state reasons for the contested decision. The second plea alleges, in essence, an error of assessment of the facts of the present case.
The first plea, alleging a failure to state reasons for the contested decision
The applicant submits that, notwithstanding the detailed and documented observations that it submitted, the ECHA failed to take account of its arguments. In particular, the ECHA failed to take account of the clarifications made by the applicant by its letter of 8 July 2013. The applicant submits that it is not able to understand the reasoning followed by the ECHA in adopting the contested decision. The reference by the ECHA in its pleadings to the letter of 5 September 2013 does not alter that conclusion. In particular, the applicant claims that, in its letter of 8 July 2013, it specified that account should not be taken of the data relating to Esseco Group Srl. However, the ECHA failed to reply in its letter of 5 September 2013 to the applicant’s arguments. Moreover, the reference in the contested decision to a large number of annexes makes it difficult to understand the reasoning followed by the ECHA.
The ECHA contests the applicant’s arguments.
It should be recalled that 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. Moreover, 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 case-law cited).
Moreover, it should 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 micro, small and medium-sized enterprises.
Recommendation 2003/361 contains an annex, Title 1 of which concerns the ‘[d]efinition of micro, small and medium-sized enterprises adopted by the Commission’. Article 2 thereof is entitled ‘Staff headcount and financial ceilings determining enterprise categories’.
In the case of an autonomous enterprise, that is to say an enterprise which is not classified as a ‘partner enterprise’ or as a ‘linked enterprise’ within the meaning of Article 3(2) and (3) of the Annex to Recommendation 2003/361, the data, including the number of staff, are determined exclusively on the basis of the accounts of that enterprise, in accordance with Article 6(1) of that annex.
In the case of an enterprise having partner enterprises or linked enterprises, the data, including the headcount, are 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 first paragraph of Article 6(2) of the Annex to Recommendation 2003/361. Under the second and third paragraphs of Article 6(2) of the Annex to Recommendation 2003/361, it is necessary to add to those data, first, the data of partner enterprises (situated immediately upstream or downstream from the enterprise in question) in proportion to the percentage interest in the capital or voting rights (whichever is greater), and, second, 100% of the data of enterprises, which are linked directly or indirectly to the enterprise in question, where the data were not already included through consolidation in the accounts.
For the application of Article 6(2) of the Annex to Recommendation 2003/361, 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, pursuant to the first paragraph of Article 6(3) of the Annex to Recommendation 2003/361. As regards the data of the enterprises which are linked to the enterprise in question, they are to be derived from their accounts and their other data, consolidated if they exist. To these is added, pro rata, the data of any possible partner enterprise of that linked enterprise, situated immediately upstream or downstream from it, unless it has already been included in the consolidated accounts with a percentage at least proportional to the percentage interest in the capital or voting rights (whichever is greater), pursuant to the second paragraph of Article 6(3) of the Annex to Recommendation 2003/361.
In the present case, the ECHA found in the contested decision that the applicant had a staff headcount equal to or greater than 250 persons, an annual turnover exceeding EUR 50 million and an annual balance sheet exceeding EUR 43 million. On that basis, the ECHA took the view that the applicant could not be classified as a medium-sized enterprise.
The ECHA’s calculation was set out in detail in a report annexed to the contested decision. In that report, the ECHA included the data of the enterprises classified as ‘linked’ (Crosfield Italia Srl) and ‘partner’ (Marfin Srl and Esseco Group) and subsequently added those data, in whole or in part, to the applicant’s data. As regards the enterprises classified as ‘partner’ enterprises, the ECHA inter alia took into account 49.9995% of Esseco Group’s data. The taking into account of Esseco Group’s data was contested by the applicant in a letter addressed to the ECHA on 8 July 2013.
As a preliminary point, it is necessary to recall the links at the material time between the applicant and other enterprises. The applicant was first of all linked to Crosfield Italia, to the extent that it owned the majority of the share capital of that enterprise. The applicant was subsequently a partner of Marfin (which owned between 25% and 50% of its share capital) and of Essemar SpA (in which the applicant owned between 25% and 50% of the share capital). Moreover, according to the ECHA, Essemar was linked to Esseco Group, to the extent that the latter enterprise officially owned a majority of the share capital and, thus, the shareholder voting rights of Essemar; the applicant acknowledged this at the hearing.
In the first place, as regards the taking into account of the data of Crosfield Italia and of Marfin, the report annexed to the contested decision enabled the applicant to understand the reasoning of that decision, in the light inter alia of the relevant provisions of Recommendation 2003/361. In particular, it is clearly apparent from those provisions and the elements of the case that the ECHA took into account all the data of Crosfield Italia, to the extent that that enterprise was linked to the applicant (pursuant to the third paragraph of Article 6(2) of the Annex to Recommendation 2003/361), and the prorated data of Marfin, to the extent that that enterprise was a partner of the applicant (pursuant to the second paragraph of Article 6(2) of the Annex to Recommendation 2003/361). The applicant does not indeed specifically contest the taking into account of the data of those enterprises in the context of this action.
In the second place, as regards the taking into account of Esseco Group’s data, which was contested by the applicant during the administrative procedure and which is the subject specifically of this action, the ECHA made it clear to the applicant, in a letter of 5 September 2013, that Esseco Group was linked to Essemar, which was a partner enterprise of the applicant. The ECHA also mentioned its reasons for taking the view that Esseco Group was linked to Essemar. Before explaining that it was necessary to take account of the fact that Essemar’s data were included in the consolidated accounts of Esseco Group, the ECHA moreover stated, in accordance with Article 6(3) of the Annex to Recommendation 2003/361, as follows:
‘[T]he data of the partner enterprise [in this case Essemar] of the enterprise in question [in this case the applicant] 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 that partner enterprise [Esseco Group], unless their accounts data are already included through consolidation. Consequently, since, in your case, Esseco Group was linked to Essemar which is a partner enterprise of [the applicant], Esseco Group’s data must be taken into consideration when establishing the overall data of [the applicant].’
It is apparent from those factors that the applicant was able to understand the reasons which guided the ECHA when calculating its size and, in particular, as regards the taking into account of Esseco Group’s data. In particular, the applicant was able to understand the ECHA’s reasons for taking the view that Esseco Group was an enterprise linked to Essemar. Moreover, the applicant was able to understand that Esseco Group’s data had been taken into account for the calculation of its size since, according to the ECHA, Esseco Group was an enterprise linked to a partner enterprise of the applicant (Essemar). The applicant was also able to understand that, in taking into account Esseco Group’s data, the ECHA had decided to apply Article 6(3) of the Annex to Recommendation 2003/361 which 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’. Lastly, given that Esseco Group’s consolidated accounts included, according to the ECHA, Essemar’s data, the applicant was able to understand that the taking into account of Esseco Group’s data to the extent of 49.9995% reflected, first, the taking into account of Essemar’s data in proportion to the applicant’s ownership of the share capital therein and, second, the taking into account of Esseco Group’s data (also in proportion to the applicant’s ownership of Essemar’s share capital).
Accordingly, without prejudice to the arguments set out by the applicant in its second plea, it must be held that the contested decision complies with the requirement to state reasons laid down in Article 296 TFEU.
Consequently, the first plea must be rejected as unfounded.
The second plea, alleging an error of assessment of the facts
According to the applicant, the ECHA was wrong to take the view that Esseco Group and the applicant were partner enterprises. Esseco Group’s data were thus taken into account for the purposes of determining the applicant’s size. However, Esseco Group does not even have an indirect relationship with the applicant. Referring to the Italian legislation applying Recommendation 2003/361, the applicant states that Esseco Group has a majority stake in Essemar’s share capital, the remaining stake being owned by the applicant. Esseco Group does not however have a majority of the voting rights in Essemar, under written agreements concluded between Essemar’s partners. Neither Esseco Group nor Essemar exercises voting rights within the applicant. Consequently, Esseco Group’s data should not have been taken into account for the purposes of determining the applicant’s size. Only Essemar’s data, which is a partner enterprise of the applicant, could have been taken into account. In that context, the applicant should not have been classified as a large enterprise by the ECHA.
In the reply, the applicant states that, even if it were conceded that the ECHA’s interpretation in the defence has some justification on the basis of the wording of the provision in question, it is unreasonable. Indeed, that interpretation would result in account being taken of data of enterprises which are not owned, even indirectly, by the enterprise in question. In the applicant’s submission, it is necessary to interpret the provisions in question as meaning that the data of the enterprise in question must be added, proportionally to the percentage interest in the capital, to the data of enterprises owned by partner enterprises or enterprises linked to the enterprise in question, and not to the data of enterprises which in turn have stakes in partner enterprises or enterprises linked to the enterprise in question. Without prejudice to that interpretation, the applicant observes that Esseco Group does not hold a majority of the voting rights in Essemar. In the alternative, the applicant submits that, in determining its size, the ECHA erred by deciding to add 100% of Esseco Group’s data. The ECHA should have confined itself to adding Esseco Group’s data to Essemar’s data, then adding those data to the applicant’s data in proportion to the share capital held by the applicant in Essemar.
The ECHA contests the applicant’s arguments.
First, the Court observes that the applicant does not challenge the ECHA’s finding that Essemar and the applicant are ‘partner’ enterprises within the meaning of Article 3(2) of the Annex to Recommendation 2003/361.
Second, it is true that the ECHA mentioned, in the report annexed to the contested decision, the applicant’s partner enterprises, including in that report Esseco Group, even though that enterprise was not a partner of the applicant within the meaning of Recommendation 2003/361. However, it is also apparent from the ECHA’s letter of 5 September 2013 that the wording of the first paragraph of Article 6(3) of the Annex to Recommendation 2003/361 was included and that that provision was applied to the case in point.
Third, contrary to the applicant’s submission, it is apparent from the report annexed to the contested decision that Esseco Group’s data were taken into account only in proportion to the share held by the applicant in Essemar’s capital. The applicant indeed acknowledges, in the reply, that such proportional aggregation was possible.
Fourth, the applicant’s arguments that Esseco Group does not have the majority of the voting rights in Essemar are not based on any specific evidence. In particular, it is apparent from the evidence put before the Court that, by act of 30 March 2004, Esseco Group and the applicant decided to create a joint enterprise, namely Essemar, with each party holding half of the share capital of that enterprise. It is also apparent from a written agreement of 9 November 2006 between Esseco Group and the applicant that, first, the applicant transferred 0.0005% of the share capital of Essemar to Esseco Group and that, second, the applicant has a right of option to acquire 0.0005% of the share capital of Essemar. It is apparent from that evidence that Esseco Group held, at the time the substances were registered with the ECHA, the majority of Essemar’s share capital, namely 50.0005%, which the applicant acknowledged at the hearing. Moreover, there is no evidence that Esseco Group did not have the majority of the voting rights in Essemar. The fact that the applicant has a right of option to acquire 0.0005% of Essemar’s share capital cannot alter that conclusion, since the option in question was not exercised. The applicant indeed recognised, at the hearing, that, given that Esseco Group owned the majority of Essemar’s share capital, Esseco Group officially held the majority of the voting rights in that enterprise.
Fifth, as regards the applicant’s interpretation of the Annex to Recommendation 2003/361 and, in particular, Article 6 thereof, it clearly departs from the normal meaning of the words used by that recommendation and cannot, therefore, be accepted (see, by analogy, judgment of 1 October 1998, United Kingdom v Commission,
C‑209/96
,
EU:C:1998:448
, paragraph
and case-law cited).
In the light of the foregoing, none of the evidence advanced by the applicant permits the conclusion that the ECHA erred in its assessment of its size.
Consequently, the second plea must be rejected as unfounded and, accordingly, 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 form of order sought by the ECHA.

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

1.
Dismisses the action;

2.
Orders Marchi Industriale SpA to pay the costs.

Frimodt Nielsen
Dehousse
Collins
Delivered in open court in Luxembourg on 15 September 2016.
[Signatures]
(
*1
)	Language of the case: Italian.