Judgment — ECLI:EU:T:2015:767
Date: 2015-10-07
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Environment
Procedure: Action for annulment - successful
Origin: Austria;Belgium;Czechia;Germany;Denmark;Spain;France;United Kingdom;Netherlands;Poland

summary of the toxicity data for the individual PAHs in CTPHT, which were analysed. According to point 7.6 of that document, entitled ‘Conclusion on the environmental classification and labelling’, the WAF approach is considered to be the most appropriate for the purpose of classifying CTPHT. The data obtained using that approach concerned multi-component substances considered as a whole. 27 Furthermore, it can also be seen from point 7.6 of the background document that several PAHs in CTPHT are phototoxic and that it was therefore necessary, if the WAF approach were used, to test the aquatic species in the presence of UV irradiation. However, all the data relating to the toxicity of CTPHT from the studies performed using the WAF approach were obtained in the absence of UV irradiation. According to the RAC, it was therefore impossible to draw any definitive conclusions on the aquatic classification of CTPHT on the basis of the studies conducted using the WAF approach. In view of those difficulties, the RAC based the environmental classification of CTPHT on an alternative approach laid down in Part 1, entitled ‘General principles for classification and labelling’, of Annex I to Regulation No 1272/2008, and CTPHT was regarded as a mixture in that respect. According to the RAC, for the classification of mixtures, two approaches are described in Regulation No 1272/2008, one based on the summation of classified components and the other based on toxicity test data. As regards CTPHT, the classification based on summation was preferred because that method also takes into account the persistence and bioaccumulation potential of the mixture. For the purposes of that classification, each individual component is classified, if possible, and the weighted content of the components classified in the same category is then added together. If that sum exceeds 25%, the whole mixture is classified in that category, as stipulated in point 4.1.3.5 of Annex I to Regulation No 1272/2008. On that basis, the 16 PAH constituents of CTPHT were analysed in order to classify them individually. 28 It must be noted that the criteria for classification in the categories of environmental hazards are set out in Part 4, entitled ‘Environmental hazards’, of Annex I to Regulation No 1272/2008. Point 4.1.1.1 of that annex, entitled ‘Definitions’, states, in subparagraph (a), that ‘“acute aquatic toxicity” means the intrinsic property of a substance to be injurious to an aquatic organism in a short-term aquatic exposure to that substance’. According to point 4.1.1.1(g) of that annex, ‘“chronic aquatic toxicity” means the intrinsic property of a substance to cause adverse effects to aquatic organisms during aquatic exposures which are determined in relation to the life-cycle of the organism’. It follows that, in order to take the view that a substance falls within the categories of acute aquatic toxicity or chronic aquatic toxicity, that substance — and not merely its constituents — must satisfy the classification criteria. 29 However, as the constituents of a substance are an integral part of that substance, it cannot simply be held that the Commission committed a manifest error of assessment in taking the view that the substance at issue fell within the categories of acute aquatic toxicity or chronic aquatic toxicity because some of its constituents fell within those categories. Such a conclusion would fail to take adequate account of the objective pursued by Regulation No 1272/2008, set out in Article 1(1) thereof and recital 1 in the preamble thereto, which is to ensure a high level of protection of human health and the environment, as well as the free movement of chemical substances, mixtures and certain specific articles, while enhancing competitiveness and innovation. In addition, it is apparent from the first subparagraph of Article 10(1) of that regulation that the legislature recognised the principle that a substance with certain properties which is present in another substance may lead to the classification of the latter as having those properties. That provision provides that specific concentration limits and generic concentration limits are limits assigned to a substance indicating a threshold at or above which the presence of that substance in another substance or in a mixture as an identified impurity, additive or individual constituent leads to the classification of the substance or mixture as hazardous. However, it cannot be held that, merely because a constituent of a substance has a certain number of properties, the substance itself also has them, but, rather, the proportion in which that constituent is present and the chemical effects of such presence must be considered (see, to that effect, judgment of 26 September 1985 in Caldana, 187/84, ECR, EU:C:1985:374, paragraph 17; order of 22 May 2014 in Bilbaína de Alquitranes and Others v ECHA, C‑287/13 P, EU:C:2014:599, paragraph 36; and judgment in Bilbaína de Alquitranes and Others v ECHA, cited in paragraph 23 above, EU:T:2013:106, paragraphs 83 and 87). 30 In the present case, it must be held that the Commission committed a manifest error of assessment in that, by classifying CTPHT as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance on the basis of its constituents, it failed to comply with its obligation to take into consideration all the relevant factors and circumstances so as to take due account of the proportion in which the 16 PAH constituents are present in CTPHT and their chemical effects. 31 According to point 7.6 of the background document, for the purpose of the classification of CTPHT on the basis of its constituents, it was assumed that all of the PAHs present in CTPHT dissolved in the water phase and were thus available to aquatic organisms. It is also mentioned that this assumption would likely give an overestimation of the toxicity of CTPHT and that, since the composition of the WAF was uncertain, that toxicity estimate could be regarded as the worst case scenario. 32 However, neither the Commission nor ECHA was able to establish before the Court that, in basing the classification of CTPHT as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance on the assumption that all of the PAHs present in that substance dissolved in the water phase and were thus available to aquatic organisms, the Commission took into consideration the fact that, according to point 1.3 of the background document, entitled ‘Physiochemical properties’, the constituents of CTPHT were released from CTPHT only to a limited extent and that that substance was very stable. 33 First, neither the RAC’s opinion on CTPHT nor the background document contains any reasoning which demonstrates that, in assuming that all of the PAHs present in that substance dissolve in the water phase and are available to aquatic organisms, account was taken of the low water solubility of CTPHT. Moreover, in response to a written question from the Court, the Commission and ECHA were able to demonstrate only that the water solubility of 16 PAH constituents, considered in isolation, had been taken into account during the classification procedure of CTPHT. In addition, in response to a question from the Court at the hearing, the Commission and ECHA merely indicated that it had been assumed that all of the PAHs in CTPHT dissolved in water inasmuch as the examination of the aquatic toxicity of that substance had been conducted on the basis of its constituents. Such reasoning does not, however, establish that the low solubility of that substance was taken into consideration. 34 Secondly, it must be noted that, according to point 1.3 of the background document, the highest rate of water solubility of CTPHT in relation to a loading was 0.0014% at maximum. Given the low water solubility of CTPHT, the Commission has in no way demonstrated that it could base the classification in question of that substance on the assumption that all of the PAHs present in CTPHT dissolved in the water phase and were available to aquatic organisms. It is apparent from Table 7.6.2 in the background document that the 16 PAH constituents of CTPHT constitute 9.2% of that substance. By assuming that all of those PAHs dissolve in water, the Commission therefore, in essence, based the classification in question on the assumption that 9.2% of CTPHT could dissolve in water. However, as can be seen from point 1.3 of the background document, such a value is not realistic, given that the maximum rate is 0.0014%. 35 Consequently, the second part of the present plea in law must be upheld. 36 Having regard to the foregoing, and without it being necessary to rule on the other parts of the present plea in law or on the other pleas in law put forward by the applicants, the action must be upheld and the contested regulation must be partially annulled in so far as it classifies CTPHT as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance. Costs 37 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In accordance with Article 138(3) of those Rules, the Court may order an intervener other than the Member States, the institutions, the States other than the Member States which are parties to the EEA Agreement and the EFTA Surveillance Authority to bear its own costs. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicants and GrafTech Iberica, in accordance with the forms of order sought by the latter. ECHA must be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Annuls Commission Regulation (EU) No 944/2013 of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures in so far as it classifies pitch, coal tar, high-temp. (EC No 266-028-2) as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance; 2. Orders the European Commission to bear its own costs and to pay those of Bilbaína de Alquitranes, SA, Deza, a.s., Industrial Química del Nalón, SA, Koppers Denmark A/S, Koppers UK Ltd, Koppers Netherlands BV, Rütgers basic aromatics GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o., Bawtry Carbon International Ltd, Grupo Ferroatlántica, SA, SGL Carbon GmbH (Germany), SGL Carbon GmbH (Austria), SGL Carbon, SGL Carbon, SA, SGL Carbon Polska SA, ThyssenKrupp Steel Europe AG, Tokai erftcarbon GmbH and GrafTech Iberica, SL; 3. Orders the European Chemicals Agency (ECHA) to bear its own costs. Dittrich Schwarcz Tomljenović Delivered in open court in Luxembourg on 7 October 2015. [Signatures] * Language of the case: English.