# C_2023179EN.01006501.xml

| 22.5.2023 | EN | Official Journal of the European Union | C 179/65 |
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22.5.2023

EN

Official Journal of the European Union

C 179/65

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Action brought on 24 March 2023 — Fritz Egger and Others v ECHA

(Case T-163/23)

(2023/C 179/91)

Language of the case: English

Parties

Applicants: Fritz Egger GmbH & Co. OG (St. Johann in Tirol, Austria) and 7 others (represented by: M. Ahlhaus, lawyer)

Defendant: European Chemicals Agency

Form of order sought

The applicants claim that the Court should:

| — | Annul the decision adopted by the defendant on 16 December 2022 and published on 17 January 2023, insofar as it includes melamine (‘the Substance’ or ‘melamine’) in the list of candidate substances for authorisation as Substances of Very High Concern (‘SVHC’) in accordance with Article 57 of Regulation (EC) 1907/2006 (‘REACH’) (‘Contested Decision’); |
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Annul the decision adopted by the defendant on 16 December 2022 and published on 17 January 2023, insofar as it includes melamine (‘the Substance’ or ‘melamine’) in the list of candidate substances for authorisation as Substances of Very High Concern (‘SVHC’) in accordance with Article 57 of Regulation (EC) 1907/2006 (‘REACH’) (‘Contested Decision’);

| — | Order the defendant to pay the costs of these proceedings. |
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Order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action, the applicants rely on five pleas in law.

| 1. | First plea in law, alleging that the Contested Decision had breached the principle of good administrative practice. The Contested Decision and the underlying justification for the identification of melamine as SVHC according to Article 57(f) REACH deviates from the established guidance. Due to this deviation, it is not only difficult to identify the specific scientific basis for the conclusion that an equivalent level of concern can be established but the unclear and inconsistent approach as put forward in the Contested Decision and underlying justification does not meet the prerequisites enshrined in Article 57(f) REACH. Insofar, the Contested Decision infringes the principle of good administration due to inconsistency of the underlying administrative behaviour and a breach of legitimate expectations of the applicants regarding the proceeding, the underlying assessment, and the decision-making process. |
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1.

First plea in law, alleging that the Contested Decision had breached the principle of good administrative practice. The Contested Decision and the underlying justification for the identification of melamine as SVHC according to Article 57(f) REACH deviates from the established guidance. Due to this deviation, it is not only difficult to identify the specific scientific basis for the conclusion that an equivalent level of concern can be established but the unclear and inconsistent approach as put forward in the Contested Decision and underlying justification does not meet the prerequisites enshrined in Article 57(f) REACH. Insofar, the Contested Decision infringes the principle of good administration due to inconsistency of the underlying administrative behaviour and a breach of legitimate expectations of the applicants regarding the proceeding, the underlying assessment, and the decision-making process.

| 2. | Second plea in law, alleging that the defendant failed to establish, in accordance with the prerequisites enshrined in Article 57(f) REACH, that melamine causes probable serious effects to human health and the environment which give rise to an equivalent level of concern to the effects identified in Article 57(a) to (e) REACH as the Contested Decision is based on effects which are not arising from intrinsic properties of melamine and must thus be disregarded in connection with the identification of melamine as substance of very high concern. |
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2.

Second plea in law, alleging that the defendant failed to establish, in accordance with the prerequisites enshrined in Article 57(f) REACH, that melamine causes probable serious effects to human health and the environment which give rise to an equivalent level of concern to the effects identified in Article 57(a) to (e) REACH as the Contested Decision is based on effects which are not arising from intrinsic properties of melamine and must thus be disregarded in connection with the identification of melamine as substance of very high concern.

| 3. | Third plea in law, alleging the breach of Article 57(f) REACH, inasmuch the defendant has adopted the Contested Decision without establishing, on basis of sufficient scientific evidence, that melamine could cause probable serious effect on human health or the environment to an equivalent level of concern to substances with hazard properties referred to in Article 57(a) to (e) REACH and, thus, the Contested Decision is based on a manifest error in assessment. |
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3.

Third plea in law, alleging the breach of Article 57(f) REACH, inasmuch the defendant has adopted the Contested Decision without establishing, on basis of sufficient scientific evidence, that melamine could cause probable serious effect on human health or the environment to an equivalent level of concern to substances with hazard properties referred to in Article 57(a) to (e) REACH and, thus, the Contested Decision is based on a manifest error in assessment.

| 4. | Fourth plea in law, alleging that the Contested Decision infringes the applicants’ right to be heard and the right to comment on new evidence presented only to the Member State Committee. The applicants claim, in essence, that they were not heard on all the factual and legal elements which led to the adoption of the Contested Decision, and the defendant manifestly erred in considering corresponding new evidence. |
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4.

Fourth plea in law, alleging that the Contested Decision infringes the applicants’ right to be heard and the right to comment on new evidence presented only to the Member State Committee. The applicants claim, in essence, that they were not heard on all the factual and legal elements which led to the adoption of the Contested Decision, and the defendant manifestly erred in considering corresponding new evidence.

| 5. | Fifth plea in law, alleging that the Contested Decision constitutes a breach of the principle of proportionality as well as the principles of foreseeability, protection of legitimate expectations and the principle of legal certainty inasmuch as melamine is identified as SVHC and, thus, is under regulatory scrutiny, although melamine is considered a suitable alternative for other substances which are already subject to more severe regulatory measures under REACH. Moreover, the identification of melamine as SVHC cannot be considered an appropriate measure with respect to the overall aim of the SVHC identification as supported by the defendant. |
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5.

Fifth plea in law, alleging that the Contested Decision constitutes a breach of the principle of proportionality as well as the principles of foreseeability, protection of legitimate expectations and the principle of legal certainty inasmuch as melamine is identified as SVHC and, thus, is under regulatory scrutiny, although melamine is considered a suitable alternative for other substances which are already subject to more severe regulatory measures under REACH. Moreover, the identification of melamine as SVHC cannot be considered an appropriate measure with respect to the overall aim of the SVHC identification as supported by the defendant.

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