Opinion of the Advocate General — ECLI:EU:C:2017:646
Date: 2017-09-07
Language of the case: English
Subject matter: Environment
Procedure: Action for annulment;Appeal - unfounded
Origin: Austria;Belgium;Czechia;Germany;Denmark;Spain;France;United Kingdom;Netherlands;Poland

summary form in paragraph 38 of the present judgment, ‘[is applied where appropriate] in order to make use of all available data for [the] purposes of classifying the aquatic environmental hazards of the mixture’. As the Advocate General has observed in point 73 of his Opinion, the use of the expressions ‘where appropriate’ and ‘all available data’ tends to undermine the interpretation that taking into account information other than that expressly used in the course of the summation method should, in all circumstances, be excluded. 42 Furthermore, it is apparent from recitals 4 to 8 of Regulation No 1272/2008 that the EU legislature intended ‘to contribute to the global harmonisation of criteria for classification and labelling, not only at UN level, but also through the incorporation of the internationally agreed GHS criteria into Community law’. To that effect, Annex I to that regulation reproduces verbatim almost all of the GHS provisions. 43 However, as the Advocate General noted in point 79 of his Opinion, it is apparent from the very wording of the GHS, in particular Annex 9, entitled ‘Guidance on hazards to the aquatic environment’, that the indicated methodological approach for determining the classification of substances’ hazards to the aquatic environment is difficult due, inter alia, to the fact that ‘the term substances covers a wide range of chemicals, many of which pose difficult challenges to a classification system based on rigid criteria’. That document therefore highlights ‘a complex interpretational problem, even for experts’ presented by classification, in particular of so-called ‘complex or multi-component’ substances for which ‘biodegradation, bioaccumulation, partitioning behaviour and water solubility all present problems of interpretation, where each component of the mixture may behave differently’. 44 The authors of that document thus sought to draw attention to the limits inherent in the methodological criteria laid down in the GHS for classification of hazards to the aquatic environment, in respect of certain substances characterised by, inter alia, their complexity, stability or low water solubility. 45 The EU legislature integrated the provisions of the GHS in Annex I to Regulation No 1272/2008, without demonstrating any intention to deviate from that approach. In those circumstances, it cannot be held that, by thus integrating the GHS in Regulation No 1272/2008, the EU legislature disregarded its methodological limitations. 46 The strict and automatic application of the summation method in all circumstances is liable to result in an undervaluing of the aquatic toxicity of a UVCB substance with few known constituents. Such a result cannot be regarded as consistent with the goal of protection of the environment and human health pursued by Regulation No 1272/2008. 47 It must therefore be held that, when it applies the summation method in order to determine whether a UVCB substance comes within the categories of acute or chronic aquatic toxicity, the Commission is not required to limit its assessment solely to the factors expressly referred to in point 4.1.3.5.5 of Annex I to Regulation No 1272/2008, to the exclusion of any other factor. In accordance with its duty to act diligently, the Commission is required to examine carefully and impartially other factors which, although not expressly referred to by those provisions, are nevertheless relevant. 48 In the present case, the Commission, supported by ECHA and the Danish and German Governments, submits that the low solubility of CTPHT is irrelevant for the purposes of applying the summation method. In its view, the summation method indirectly takes into account the solubility of the constituents coming within the ‘acute toxicity’ and ‘chronic toxicity’ categories of hazards to the aquatic environment. 49 Whether the low solubility of CTPHT may be regarded as relevant and must, in that regard, be taken into consideration for the purposes of classifying the aquatic environmental hazards posed by that substance is a question of the legal characterisation of facts coming within the jurisdiction of the Court in the course of its review on appeal. 50 The ground in paragraph 28 of the judgment under appeal, according to which ‘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’, is not contested. 51 The classification method referred to in point 4.1.3.5.5 of Annex I to Regulation No 1272/2008 is based on the assumption that the constituents taken into consideration are 100% soluble. On the basis of that assumption, that summation method implies that there is a concentration level of constituents below which the threshold of 25% cannot be reached and, thus, consists of calculating the sum of the concentrations of the constituents coming within the categories of acute or chronic toxicity, each weighted by factor M corresponding to their toxicity profile. 52 It is, however, inherent in that method that it loses reliability in situations where the weighted sum of the constituents exceeds the level of concentration corresponding to the threshold of 25% in a proportion less than the ratio between the observed solubility rate at the level of the substance in question as a whole and the hypothetical solubility rate of 100%. In such situations, it thus becomes possible that the summation method may lead, in specific cases, to a result greater than or less than the level corresponding to the regulatory threshold of 25%, according to whether the hypothetical solubility rate of the constituents is taken into consideration or that of the substance as a whole. 53 It is common ground that Table 7.6.2 of Annex I to the report attached to the RAC’s opinion shows that, first, the summation method leads to the result of 14 521% and that, secondly, that result is 581 times greater than the minimum level required for the threshold of 25%, after weighting by factor M, to be reached. Nor is it disputed that it is, moreover, apparent from point 1.3 of that document, entitled ‘Physiochemical properties’, that the maximum rate of water solubility of CTPHT was 0.0014%, a rate approximately 71 000 times lower than the hypothetical solubility rate of 100% used for the constituents taken into consideration. 54 The General Court therefore did not distort or err in the legal classification of the facts in holding, in paragraph 34 of the judgment under appeal, that, ‘by assuming that all of those [constituents] 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 [annexed to the RAC’s opinion], such a value is not realistic, given that the maximum rate is 0.0014%’. 55 Since it found, in paragraph 32 of that judgment, that ‘neither the Commission nor ECHA [had been] able to establish … that … the Commission [had taken] into consideration the fact that, according to point 1.3 of the background document [annexed to the RAC’s opinion], entitled “Physiochemical properties”, the constituents of CTPHT were released from CTPHT only to a limited extent and that that substance was very stable’, the General Court held, without erring in law, in paragraph 30 of the judgment that ‘the Commission [had] 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 [had] 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 … constituents are present in CTPHT and their chemical effects’. 56 Accordingly, the second ground of appeal must be rejected as unfounded. The third ground of appeal, alleging abuse of the limits of judicial review and distortion of the evidence 57 The Commission claims to have adopted the regulation at issue on the basis of a wide range of scientific evidence. This, it submits, is very complex evidence that justifies the application of the summation method. The General Court, in paragraph 34 of the judgment under appeal, took from that vast set of scientific and technical evidence only the sentence according to which 9.2% of CTPHT could dissolve in water in order to invalidate the Commission’s assessment. However, according to the Commission, that factor is inherent in the summation method. By holding, in that paragraph 34, that the maximum solubility rate of CTPHT as a whole is 0.0014%, the General Court substituted its own assessment for that of the Commission. Furthermore, by doing so, the General Court distorted the evidence on the basis of which the regulation at issue had been adopted. 58 However, it should be noted that this third ground of appeal is based on an erroneous reading of the judgment under appeal. The General Court did not, in paragraph 34 of the judgment under appeal, substitute its own assessment of the scientific and technical facts for that of the EU authorities. According to the settled case-law on the scope of judicial review, recalled in paragraph 35 above, the General Court’s assessment, based on the data in the background document annexed to the RAC’s opinion, focused exclusively on the procedural question of determining whether the Commission, in classifying CTPHT, complied with its obligation to take into consideration all the relevant factors and circumstances. 59 Accordingly, the third ground of appeal must be rejected as unfounded. 60 It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety. Costs 61 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those Rules, which applies 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. 62 Article 140(1) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 184(1) thereof, provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs. 63 Article 184(4) of the Rules of Procedure provides that, where an intervener at first instance takes part in the proceedings, the Court may decide that it is to bear its own costs. 64 Since Bilbaína and others have applied for costs to be awarded against the Commission, and as the latter has been unsuccessful, the Commission must be ordered to pay, in addition to its own costs, those incurred by Bilbaína and others, including the costs relating to the interlocutory proceedings that gave rise to the order of the Vice-President of the Court of 7 July 2016, Commission v Bilbaína de Alquitranes and Others (C‑691/15 P–R, not published, EU:C:2016:597). 65 The Kingdom of Denmark, the Federal Republic of Germany and the Kingdom of the Netherlands, interveners in the appeal, shall bear their own costs. 66 ECHA, intervener at first instance, shall bear its own costs. 67 GrafTech Iberica SL, intervener at first instance, which participated in the oral part of the proceedings without applying for the Commission to pay the costs, shall bear its own costs. On those grounds, the Court (Sixth Chamber) hereby: 1. Dismisses the appeal; 2. Orders the European Commission to pay, in addition to its own costs, those incurred by 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 S.A., ThyssenKrupp Steel Europe AG and Tokai erftcarbon GmbH, including the costs relating to the interlocutory proceedings that gave rise to the order of the Vice-President of the Court of 7 July 2016, Commission v Bilbaína de Alquitranes and Others (C‑691/15 P–R, not published, EU:C:2016:597); 3. Orders the Kingdom of Denmark, the Federal Republic of Germany and the Kingdom of the Netherlands to bear their own costs; 4. Orders GrafTech Iberica SL and the European Chemicals Agency to bear their own costs. Fernlund Arabadjiev Regan Delivered in open court in Luxembourg on 22 November 2017. A. Calot Escobar C.G. Fernlund Registrar President of the Sixth Chamber * Language of the case: English.