Information;Judgment — ECLI:EU:T:2019:492
Date: 2019-07-11
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Approximation of laws;Research and technological development;REACH
Procedure: Action for annulment - unfounded
Origin: Belgium

summary of the three pleas in law relied on by the applicant were also made public. 5 By its first plea in law, the applicant claims that the contested decision infringes Article 2(8)(b) of Regulation No 1907/2006, since intermediate uses are exempt from the entirety of Title VII, in accordance with Article 2(8)(b) of that regulation and fall outside the scope of Articles 57 and 59 and outside the scope of authorisation. Bisphenol A is such an intermediate. 6 The second plea in law, in essence, alleges that the contested decision infringes the principle of proportionality. 7 By its third plea in law, the applicant alleges in essence that ECHA committed a manifest error of assessment, by failing to take into consideration the information at its disposal showing the uses of bisphenol A as an intermediate. 8 By document lodged at the Court Registry on 10 July 2017, ClientEarth applied to intervene in support of the form of order sought by ECHA. 9 The applicant and ECHA were notified of that application, in accordance with Article 144(1) of the Rules of Procedure. 10 By document lodged at the Court Registry on 28 August 2017, the applicant claimed, in essence, that ClientEarth, had failed sufficiently to establish an interest in the result of the present case. By document lodged at the Court Registry on the same day, ECHA stated that it did not object to ClientEarth’s intervention in the present case, if the Court considered that that organisation had a direct interest in the result of the case. 11 By a separate document, lodged at the Court Registry on 28 August 2017, the applicant applied for confidential treatment of certain information contained in the application and its annexes with regard to ClientEarth. Law 12 Under the second paragraph of Article 40 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 of that statute, any person establishing an interest in the result of a case, other than a case between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case. 13 It is settled case-law that the concept of an interest in the result of the case, within the meaning of that provision, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The ‘result’ of the case is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested decision and whether its interest in the result of the case is established (order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, EU:T:2014:920, paragraph 21 and the case-law cited) 14 According to case-law, in so far as concerns applications to intervene submitted by organisations for the protection of the environment, the requirement for a direct, existing interest in the result of the case means either that the scope of the activities of such organisations should coincide with that of the region and sector concerned by the proceedings before the General Court or, where the scope of their activities is wider, that they should be actively involved in protection programmes or studies relating to the region and sector concerned, the viability of which may be jeopardised if the contested measure were adopted (order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, EU:T:2014:920, paragraph 73 and the case-law cited). 15 ClientEarth’s application to intervene must be examined in the light of that case-law. 16 In the first place, it is apparent from ClientEarth’s application to intervene, in particular, that it is a non-profit-making, non-governmental organisation, the objective of which is to protect the environment. Pursuant to its bylaws, ClientEarth’s activities focus on promoting, assisting, undertaking, and commissioning research into law, practice, and the administration of justice, in connection with the environment and matters relating thereto, including the impact, direct or indirect, of any human activity on the environment. In particular, it is apparent from ClientEarth’s annual reports that, since 2010, it has initiated a programme on toxic products and that its activities cover actions relating to legal mechanisms to ensure that a precautionary approach is applied to decisions relating to chemicals. In that regard, it focuses particularly on the authorisation procedure under Regulation No 1907/2006, for the use of certain substances. 17 In the second place, in support of its application to intervene, ClientEarth maintains, in particular, that on 24 April 2017, it lodged with ECHA a report concerning the identification of bisphenol A as an endocrine disruptor of very high concern for the purposes of Article 57(f) of Regulation No 1907/2006. 18 It may be concluded from all the above circumstances that the second of the alternative conditions set out in the case-law referred to in paragraph 14 above is fulfilled. 19 First, it follows from the factors referred to in paragraph 16 above, and from the report of 24 April 2017, that ClientEarth is actively involved in protection programmes or studies concerning the relevant sector seeking, inter alia, to protect human health from the adverse effects of bisphenol A, which the present dispute concerns. 20 Secondly, it must be concluded that the achievements in that report and its programme concerning toxic products could be called into question if the contested decision were annulled. In that regard, it is true that the present dispute concerns the properties of BPA as a substance in the hazard class reproductive toxicity category 1B, having adverse effects on fertility or on development, for the purposes of Article 57(c) of Regulation No 1907/2006, while that report concerns the properties of BPA as a endocrine disruptor in accordance with the criteria laid down in Article 57(f) of Regulation No 1907/2006. However, it cannot be ruled out that a substance capable of disrupting the reproductive system might have an effect on the endocrine system and vice versa. 21 In the light of the above, it must be considered that ClientEarth is directly affected by the contested decision within the meaning of the case-law referred to in paragraph 13 above and that it has a direct, existing interest in the form of order sought by ECHA. Consequently, ClientEarth’s application to intervene must be granted. The request for confidential treatment 22 The applicant has applied, in accordance with Article 144(2) of the Rules of Procedure, for certain confidential information in the file not to be communicated to ClientEarth and has submitted, for the purposes of communication, a non-confidential version of the pleadings and documents in question. 23 At this stage, the communication to ClientEarth of procedural documents served and, as the case may be, to be served on the parties must therefore be confined to a non-confidential version. A decision on the merits of the application for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations which may be submitted in that regard. Costs 24 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings. The present order does not close the proceedings either in respect of ClientEarth or in respect of the other parties to the proceedings. The costs must therefore be reserved. On those grounds, THE FIFTH CHAMBER OF THE GENERAL COURT hereby orders: 1. ClientEarth is granted leave to intervene in Case T‑185/17 in support of the form of order sought by the European Chemicals Agency (ECHA). 2. The Registrar shall send ClientEarth a non-confidential version of each procedural document served on the parties. 3. A period shall be prescribed within which ClientEarth may submit a statement in intervention without prejudice to the possibility of its supplementing that statement at a later date, should the need arise, following a decision on the merits of the application for confidential treatment. 4. A date shall be fixed by which ClientEarth may lodge any observations on the application for confidential treatment. The decision on the merits of that application is reserved. 5. The costs are reserved. Luxembourg, 1 December 2017. E. Coulon D. Gratsias Registrar President * Language of the case: English.