CELEX: 62011CJ0625
Appeal
European Chemicals Agency (ECHA)
Registration, evaluation and authorisation of chemical substances
Regulation (EC) No 1907/2006 (REACH Regulation)
Articles 57 and 59
Substances subject to authorisation
Identification of acrylamide as a substance of very high concern
Inclusion on the candidate list of substances
Publication
Time-limit for instituting proceedings
Article 102(1) of the Rules of Procedure of the General Court
Date from which that time-limit must be calculated in the case of an action brought against a decision published only on the internet
Legal certainty
Effective judicial protection

By their appeal, Polyelectrolyte Producers Group GEIE (PPG) (‘PPG’) and SNF SAS (‘SNF’) seek to have set aside the order of the General Court of the European Union of 21 September 2011 in Case
T-268/10
PPG and SNF
v
ECHA
[2011] ECR II-6595
(‘the order under appeal’), by which that Court dismissed as inadmissible their action for annulment of the decision of the European Chemicals Agency (ECHA), identifying acrylamide (EC No 201-173-7) as a substance meeting the criteria laid down in Article 57 of 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
, and – corrigendum –
OJ 2007 L 136, p. 3
, ‘the REACH Regulation’) and including acrylamide on the list of substances for future inclusion in Annex XIV to that regulation, in accordance with Article 59 thereof (‘the contested decision’).
Legal context
The REACH Regulation
Article 57 of the REACH Regulation sets out the substances which may be included in Annex XIV to that regulation, entitled ‘List of substances subject to authorisation’. Points (a) and (b) of Article 57 list the substances which meet the criteria for classification as carcinogenic and mutagenic substances under certain categories.
Pursuant to Article 59 of that regulation, entitled ‘Identification of substances referred to in Article 57’:
‘1.   The procedure set out in paragraphs 2 to 10 of this Article shall apply for the purpose of identifying substances meeting the criteria referred to in Article 57 and establishing a candidate list for eventual inclusion in Annex XIV (‘candidate list of substances’). ...
…
10.   [ECHA] shall publish and update the list referred to in paragraph 1 on its website without delay after a decision on inclusion of a substance has been taken.’
Article 94(1) of the REACH Regulation 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 of ECHA or, in cases where no right of appeal lies before the Board, by ECHA.
There is no provision for an action before that Board of Appeal against decisions taken under Article 59 of the REACH Regulation.
Rules of Procedure of the General Court
Article 102 of the Rules of Procedure of the General Court provides:
‘1.   Where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period shall be calculated, for the purposes of Article 101(1)(a), from the end of the 14th day after publication thereof in the
Official Journal of the European Union
.
2.   The prescribed time-limits shall be extended on account of distance by a single period of ten days.’
Background to the dispute and the contested decision
PPG is a European economic interest grouping which represents the interests of companies that are producers and/or importers of polyelectrolytes, polyacrylamide and/or other polymers containing acrylamide. SNF is one of its member companies.
On 25 August 2009, the Kingdom of the Netherlands submitted to ECHA a dossier which it had drawn up concerning the identification of acrylamide as a substance fulfilling the criteria set out in Article 57(a) and (b) of the REACH Regulation.
Following the procedure set out in Article 59 of the REACH Regulation, ECHA, in the contested decision, identified acrylamide as fulfilling the criteria set out in Article 57 of that regulation and included acrylamide on the candidate list of substances.
On 30 March 2010, the candidate list of substances including acrylamide was published on the ECHA website, in accordance with Article 59(10) of the REACH Regulation.
The procedure before the General Court and the order under appeal
By application lodged at the Registry of the General Court on 10 June 2010, PPG and SNF brought an action for annulment of the contested decision.
On 5 November 2010, ECHA lodged at the General Court Registry a document raising a plea of inadmissibility against that action. It raised three grounds of inadmissibility based, primarily, on the failure to observe the time-limit for bringing an action and, alternatively, alleging lack of direct concern to the appellants and the fact that the contested decision, which it contends was not a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU, was not of individual concern to the appellants.
The Kingdom of the Netherlands and the European Commission were granted leave to intervene in support of the form of order sought by ECHA. The European Commission supported the arguments of ECHA with regard to the failure to observe the time-limit for bringing an action and also pleaded that it was inadmissible on grounds of
lis pendens
.
Concerning the allegation of failure to observe the time-limit for bringing an action, ECHA and the Commission claimed, in essence, that the contested decision had been published on 30 March 2010 and the period laid down in the sixth paragraph of Article 263 TFEU to bring an action against that decision ran until 30 May 2010. To that latter date, the extra period of 10 days on account of distance provided for under Article 102(2) of the Rules of Procedure of the General Court had to be added, so that the complete period for lodging the action expired on 9 June 2010. Consequently, the action brought by PPG and SNF on 10 June 2010 was out of time.
The appellants relied on the application of Article 102(1) of those Rules of Procedure and submitted that the period for lodging an appeal was to be calculated from the end of the 14th day following the date of publication of the contested decision, with the result that that time‑limit had been complied with in the present case.
In paragraph 33 of the order under appeal, the General Court held that Article 102(1) applies, in accordance with its wording, only to measures published in the
Official Journal of the European Union
, whereas, under Article 59(10) of the REACH Regulation, the candidate list of substances is to be published on the ECHA website and no other form of publication is provided for in any other provision of that regulation.
In that respect, the General Court held, in paragraph 35 of the order under appeal, first of all, that exclusive publication on the internet is done electronically, so that measures published there are accessible to the public throughout the European Union at the same time. By contrast, in the General Court’s view, even if an electronic version of the
Official Journal of the European Union
is also available on the internet, only the printed version of that journal is authentic.
Next, the General Court held, in paragraph 37 of the order under appeal, that its case-law concerning the publication of decisions on State aid cannot be transposed to the present case. It stated, in that regard, that, although, according to that case‑law, giving third parties access to a full version of the text of a decision placed on its website, coupled with the publication of a summary notice in the
Official Journal of the European Union
, brings it within the scope of Article 102(1) of its Rules of Procedure, publication in that journal is expressly provided for in such cases in Article 26 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (
OJ 1999 L 83, p. 1
).
Finally, the General Court rejected, in paragraph 38 of the order under appeal, the appellants’ argument that the fact of not applying Article 102(1) of its Rules of Procedure to publications which, in accordance with European Union law, are intended exclusively for the internet constitutes discrimination or arbitrary treatment with regard to them. It held that the factual and legal situation in which a person finds himself following the publication of a measure in the
Official Journal of the European Union
is not comparable to that in which he finds himself following the publication of a measure exclusively on the internet. Furthermore, in the view of the General Court, consideration of the date of publication of the contested decision on the ECHA website as the date of publication within the meaning of the sixth paragraph of Article 263 TFEU guarantees equality of treatment between all the interested parties by ensuring that the time-limit for bringing an action against that decision is calculated in the same way for everyone. The General Court added that the differences, concerning the calculation of the time-limit for bringing an action, between publication in the
Official Journal of the European Union
and publication on the internet are, in any event, also justified by the characteristics of publication on the internet.
On the basis of its assessment of the plea alleging failure to observe the time‑limit for bringing an action, the General Court dismissed the action brought by PPG and SNF as inadmissible without considering the other pleas of inadmissibility raised by ECHA and the Commission.
Forms of order sought by the parties
The appellants request the Court of Justice to set aside the order under appeal and to annul the contested decision or, in the alternative, to refer the case back to the General Court to rule on their application, and to order ECHA to pay the costs at first instance and on appeal.
ECHA, along with the Kingdom of the Netherlands and the Commission, which supported ECHA at first instance, request the Court of Justice to declare the appeal unfounded and to order the appellants to pay the costs.
The appeal
Arguments of the parties
The appellants raise a single ground of appeal alleging that the General Court erred in law in its interpretation and application of Article 102(1) of its Rules of Procedure and, consequently, infringed the principle of effective judicial protection. They maintain that the 14‑day period referred to in that provision must be applied to all published decisions, not only to those published in the
Official Journal of the European Union
.
In that regard, the appellants submit that the principles underpinning the inclusion of the 14 days referred to in Article 102(1) in the calculation of the time-limit for bringing an action, namely the principles of legal certainty and equality among third parties, apply equally to publications on the internet. In relation to paragraph 37 of the order under appeal, the appellants consider that both in the contested decision and in the decisions on State aid which are the subject of the case‑law cited by the General Court in that paragraph, the formal decision is published on the internet. Therefore, the General Court erred in law by making a distinction between those two situations.
Moreover, the appellants claim that, contrary to the finding made in paragraph 38 of the order under appeal, the legal and factual situation in which a person finds himself following publication of a measure in the
Official Journal of the European Union
is identical to that in which he finds himself following publication of a measure exclusively on the internet, such that the non-application of Article 102(1) of the Rules of Procedure of the General Court to that latter form of publication constitutes discrimination and arbitrary treatment.
ECHA, supported by the Kingdom of the Netherlands, submits that there is no need to apply Article 102(1) beyond its wording. ECHA states, in that regard, first, that the strict application of European Union rules on procedural time-limits serves the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice and, second, that those time‑limits, which were established in order to ensure that legal positions are clear and certain, are a matter of public policy and are not, consequently, subject to the discretion of the parties or the Court. The General Court could extend the scope of Article 102(1) of its Rules of Procedure only by amending those Rules. ECHA also stresses the difference between publication on the internet and publication in the
Official Journal of the European Union
.
The Commission considers that the appellants would have suffered discrimination or arbitrary treatment only if a shorter time-limit had been applied to them in comparison to other parties in the same situation, namely those also wishing to challenge the legality of the candidate list of substances. As the General Court held in paragraph 38 of the order under appeal, the situation of parties challenging a measure published only on the website of a body of the European Union is different from that of parties seeking the annulment of measures published in the
Official Journal of the European Union
. The Commission also submits that the General Court did not err in law in paragraphs 35 and 37 of the order under appeal.
Findings of the Court
The Court notes, at the outset, that it is not disputed that a decision of ECHA concerning the inclusion of a substance on the list of candidate substances constitutes a challengeable act, for the purposes of the first paragraph of Article 263 TFEU. Article 94(1) of the REACH Regulation provides that an action may be brought against a decision of ECHA, in accordance with Article 263 TFEU, where, inter alia, no right of appeal lies before the Board of Appeal of ECHA. That is the case in respect of decisions taken under Article 59 of the REACH Regulation.
In relation to published measures, the sixth paragraph of Article 263 TFEU states that proceedings are to be instituted within two months of the publication of the measure. In accordance with Article 102(1) of the Rules of Procedure of the General Court, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period runs from the end of the 14th day after publication of the measure in the
Official Journal of the European Union
.
Contrary to what the General Court found in paragraph 33 of the order under appeal, it is not apparent from the wording of Article 102(1) of its Rules of Procedure that that article applies only to measures published in the
Official Journal of the European Union
.
As noted by the Advocate General in points 76 and 77 of his Opinion, the first part of the sentence which makes up Article 102(1) of the Rules of Procedure of the General Court is capable of referring, like the sixth paragraph of Article 263 TFEU, to the publication of measures in general. The reference to the
Official Journal of the European Union
in the second part of the sentence may thus be explained by the simple fact that a publication in the
Official Journal
was the only envisageable form of publication at the time those Rules of Procedure were adopted.
Therefore, it cannot be ruled out that Article 102(1) of the Rules of Procedure of the General Court applies to a measure which is published only on the internet, such as the contested decision.
Moreover, in so far as the wording of Article 102(1) of the Rules of Procedure of the General Court could give rise to doubts, it is necessary, in the absence of any imperative reasons to the contrary, to favour an interpretation which does not result in the interested parties’ being time-barred and therefore depriving them of their right to resort to legal proceedings (see, to that effect, Case
117/78
Orlandi
v
Commission
[1979] ECR 1613
, paragraph 11).
More generally, the Court of Justice points out that, where the wording of a provision is unclear, account should be taken of the context of that provision and of the objectives which it pursues (see, to that effect, Case C‑149/11
Leno Merken
[2012] ECR, paragraph 39).
In that regard, it must be considered that the objective of the 14‑day time‑limit laid down in Article 102(1) of the Rules of Procedure of the General Court is to ensure that interested parties have sufficient time within which to bring an action against published measures and, consequently, to observe the right to effective judicial protection, as is now laid down in Article 47 of the Charter of Fundamental Rights of the European Union.
As has been found in paragraph 31 above, in so far as it is possible to interpret Article 102(1) of the Rules of Procedure of the General Court as referring to any published measure, irrespective of the means of publication, that provision must be interpreted in that way so as to ensure that the interested parties are not deprived, by relying on an additional 14 days within which to bring an action, of effective judicial protection.
Consequently, the General Court erred in law in finding that Article 102(1) applies only to measures published in the
Official Journal of the European Union
and thus declaring the action brought by PPG and SNF inadmissible.
In the light of the foregoing, the single ground of appeal raised by the appellants must be upheld, as must their appeal, and the order under appeal must be set aside.
In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the latter may, where the decision of the General Court has been set aside, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
Since the state of the proceedings does not permit the Court of Justice to give final judgment in the matter, the case must be referred back to the General Court and the costs reserved.

On those grounds, the Court (Fourth Chamber) hereby:

1.
Sets aside the order of the General Court of the European Union of 21 September 2011 in Case T‑268/10
PPG and SNF
v
ECHA;

2.
Refers the present case back to the General Court of the European Union;

3.
Reserves the costs.

[Signatures]
(
*1
)	Language of the case: English.