Order — ECLI:EU:C:2014:2175
Date: 2014-09-04
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Environment;Approximation of laws;Research and technological development;Public health;REACH
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Czechia;Denmark;United Kingdom;Netherlands

summary of the arguments put forward by the ECHA, not an assessment by the General Court. Consequently, that argument must be rejected. 46 It follows from the foregoing that the first part of the second ground of appeal must be rejected as being manifestly unfounded. The second part of the second ground of appeal, relating to the identification of the constituents of anthracene oil (low) as having PBT or vPvB properties 47 By the second part of the second ground, the appellants criticise the General Court for having held, in paragraph 132 of the judgment under appeal, that prior identification of the relevant constituents of anthracene oil (low) would have been of no added value compared with the methodology followed in this case. They argue that Article 57 of and Annex XIII to the REACH Regulation require an individual assessment of each substance. Among the relevant substances constituting anthracene oil (low), anthracene alone was subject to such an assessment. However, an individual and thorough evaluation of each of those constituents could have led to an outcome other than the identification of anthracene oil (low), while allowing interested parties to be consulted. Therefore, they submit, the General Court erred in stating that individual identification of those constituents would not have brought any added value. 48 By that part of the second ground, the appellants question, in essence, whether Article 57 of and Annex XIII to the REACH Regulation require, where the identification of a UVCB substance is based on the examination of the intrinsic properties of certain of its constituents, that each of those constituents be the subject of an identification procedure in accordance with Article 59 of the REACH Regulation. 49 As correctly noted by the General Court in paragraph 132 of the judgment under appeal, Articles 57(d) and (e) and 59 of the REACH Regulation require, for the purposes of identifying a substance, that it should meet the criteria set out in Annex XIII to that regulation. No provision of the REACH Regulation requires, in the case of substances composed of multiple constituents, that each of its constituents should be subject, individually, to an identification procedure under Article 59 of that regulation. Consequently, the second part of the second ground has no legal basis. It must for that reason be rejected. 50 By the third part of their second ground of appeal the appellants criticise the assessment of the General Court, in paragraph 85 of the judgment under appeal, that information on alternative substances is not relevant for the identification of a substance as a substance of very high concern under Article 59 of the REACH Regulation. They criticise the General Court for concluding, in paragraph 79 of the judgment under appeal, that a Member State need give the information on alternative substances in the dossier prepared pursuant to Annex XV to that regulation only if it is available to it. They take the view that that reasoning is inconsistent and mistaken. 51 However, it must be observed that the General Court acted correctly in law in pointing out, in paragraph 79 of the judgment under appeal, that ‘a Member State may only give the information which is available to it’. In that regard, the General Court ruled as follows in paragraph 80 of the judgment: ‘In any event, the letter to the competent German authorities of 17 July 2009 from the Coal Chemicals Sector Group, of which the applicants are members, did not refer to any alternative substances. Asking the German authorities to adopt “a more balanced approach not penalizing a single industry sector”, the group pointed out that “it is well known that many streams of petroleum conversion contain anthracene as well”. That letter thus makes reference to substances which, according to the group, present a comparable level of danger to that of anthracene oil (low) and not to substances which can be used as alternatives because they are capable of being used instead of anthracene oil (low) to perform the same function. Finally, it must be observed that, in the light of Article 60(5) of [the REACH Regulation], point II 2 of Annex XV to the regulation must be interpreted as referring to appropriate alternative substances, which, because of their anthracene content, petroleum-based preparations are not.’ 52 In so ruling, on grounds of law and of fact which were not contested by the appellants in their appeal, the General Court justified in law its decision to hold, in paragraph 81 of the judgment under appeal, that the procedural requirements set out in Article 59(3) of the REACH Regulation were respected. 53 It follows that the arguments relied on by the appellants in this third part of the second ground of appeal to criticise the grounds set out in paragraphs 79 and 85 of the judgment under appeal are directed against grounds included merely for the sake of completeness which, as such, cannot invalidate the judgment. Those arguments must, therefore be rejected as ineffective. 54 It follows that the second ground of appeal must be rejected as being manifestly unfounded. The third ground of appeal, alleging failure to adjudicate and distortion of the pleadings at first instance 55 By their third ground of appeal, the appellants submit that the General Court did not respond to the arguments set out in paragraph 37 of their reply, by which they argued that the amendments made, following the publication of the contested decision, to Annex XIII to the REACH Regulation by Regulation No 253/2011 do not provide for a threshold of 0.1%. They take the view that those amendments rest on an approach based on the ‘weight of evidence’ or on an assessment based on expert judgment. That approach should, they submit, be followed in relation to PBT or vPvB substances in order for it to be possible to demonstrate that the classification is not warranted. 56 However, it should be noted that that argument is based on Regulation No 253/2011, which was not in force on the date of adoption of the contested decision. In interpreting Annex XIII to the REACH Regulation in its version applicable on that date, the General Court therefore did not err in law. 57 In addition, the appellants challenge the finding in paragraphs 124 and 127 of the judgment under appeal that they did not challenge ‘the application of the 0.1% threshold in general’. They point out that they made it clear that, in order to be valid, such a threshold had to be expressly provided for. The General Court, they submit, also failed to respond to the arguments set out in paragraph 115 of the application concerning the evaluation and individual identification of each of the relevant constituents of anthracene oil (low). 58 That line of argument cannot, however, in any way succeed, since it relates to arguments which were relied on in the context of the second ground of appeal, which has been rejected in its entirety, as is apparent from paragraph 54 of the present order. 59 The third ground of appeal must therefore be rejected as being manifestly unfounded. The fourth ground of appeal, alleging infringement of the principle of equal treatment 60 By their fourth ground of appeal, the appellants submit that the General Court, in paragraphs 97 to 102 of the judgment under appeal, erred in law in holding that, on the one hand, the ECHA had not infringed the principle of equal treatment on the ground that the Commission had complied with the procedure laid down in Article 59 of the REACH Regulation and, on the other, the ECHA has no power in the choice of substance to be identified. They submit that the fact that the Commission has a wide discretion to choose the substance to be identified as a substance of very high concern does not mean, however, that that institution can create, in relation to other similar substances, a situation of discrimination which is not objectively justified. The General Court, they argue, therefore misinterpreted the principle of equal treatment and failed to examine whether there was an objectively justified difference in treatment. 61 However, contrary to the appellants’ submissions, it is clear from paragraphs 98 to 101 of the judgment under appeal that the General Court conducted a detailed analysis of their line of argument alleging infringement of the principle of equal treatment. In order to address the third plea in law in the action, the General Court rightly held that the ECHA has no power in relation to the choice of substance to be identified; that prerogative belongs exclusively to the Commission and the Member States pursuant to Article 59 of the REACH Regulation. From this the General Court inferred that, as the appellants had failed to challenge the legality of the procedure referred to in Article 59 of the REACH Regulation, the third plea in law of the action had to be rejected. 62 Furthermore, it should be noted that, as part of the third plea of their action, the appellants alleged that the ECHA had infringed the principle of equal treatment by identifying anthracene oil (low) as a substance of very high concern rather than other UVCB substances composed of constituents containing anthracene and other polycyclic aromatic hydrocarbons. However, in the context of their fourth ground, the appellants rely, in support of their appeal, on a breach of equal treatment attributable to the Commission, which is not a party to the dispute. This therefore constitutes a new plea in law, which is manifestly inadmissible at the appeal stage. Consequently, the fourth ground of appeal must be rejected. 63 In the light of all the foregoing considerations, it must be held that, as none of the grounds raised by the appellants in support of their appeal can be upheld, that appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded. Costs 64 In accordance with Article 184(2) of its Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those Rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, 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 ECHA and the Commission have applied for costs and the appellants have been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the Court (Eighth Chamber) hereby orders: 1. Dismisses the appeal. 2. Orders Cindu Chemicals BV, Deza a.s., Koppers Denmark A/S and Koppers UK Ltd to pay the costs. [Signatures] * Language of the case: English.