Opinion of the Advocate General — ECLI:EU:C:2021:145
Date: 2021-02-25
Language of the case: English
Subject matter: Approximation of laws;Research and technological development;REACH
Procedure: Action for annulment;Appeal - unfounded
Origin: United Kingdom

summary, the judgment under appeal should be set aside and the contested review decision should be annulled because they accepted that the endocrine disrupting properties of DEHP were not taken into account in the socio-economic balancing exercise in the authorisation decision. The General Court’s findings regarding the admissibility of complaints as to the application for authorisation, regarding the review of the content of the application, and also regarding the inadmissibility of new arguments, are likewise vitiated by errors in law, but do not ultimately lead to the judgment under appeal being set aside. VI. Costs 162. Under Article 184(2) of its Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs. 163. Under Article 138(1) of the Rules of Procedure, which applies mutatis mutandis to appeal proceedings pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 164. Furthermore, under Article 184(4) of the Rules of Procedure, where the appeal has not been brought by an intervener at first instance, he may not be ordered to pay costs in the appeal proceedings unless he participated in the written or oral part of the proceedings before the Court of Justice. In that case, the Court may decide that he shall bear his own costs. This applies to the costs incurred by ECHA in the appeal proceedings. 165. As regards the costs incurred by ECHA before the General Court, the grounds set out in paragraph 310 of the judgment under appeal still apply. 166. Consequently, the Commission must pay the costs incurred by ClientEarth and bear its own costs. ECHA, on the other hand, must bear its own costs in both instances. VII. Conclusion 167. I therefore propose that the Court should: (1) Set aside the judgment of the General Court of the European Union of 4 April 2019, ClientEarth v Commission (T‑108/17, EU:T:2019:215); (2) Annul Decision C(2016) 8454 final of the European Commission of 7 December 2016; (3) Order the European Commission to pay the costs incurred by ClientEarth and to bear its own costs. The European Chemicals Agency must bear its own costs. 1 Original language: German. 2 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1); the relevant version is as amended by Commission Regulation (EU) 2016/217 of 16 February 2016 (OJ 2016 L 40, p. 1). 3 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13). 4 Convention on access to information, public participation in decision-making and access to justice in environmental matters of 1998 (OJ 2005 L 124, p. 4), approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1). 5 Commission Regulation of 17 February 2011 amending Annex XIV to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (‘REACH’) (OJ 2011 L 44, p. 2). 6 Also known as endocrine disruptors. Such substances influence hormone balance. 7 The challenge to that decision was rejected by the judgments of the General Court of 11 May 2017, Deza v ECHA (T‑115/15, EU:T:2017:329), and of the Court of Justice of 23 January 2019, Deza v ECHA (C‑419/17 P, EU:C:2019:52). 8 Implementing decision C(2017) 4462 final (https://echa.europa.eu/documents/10162/88c20879-606b-03a6-11e4-9edb90e7e615). 9 That document, which bears the reference ‘ECHA/RAC/SEAC Opinion No AFA-O-0000004151-87-17/D’, is entitled ‘Opinion on an Application for Authorisation for Bis(2-ethylhexyl) phthalate (DEHP) use: Formulation of recycled soft PVC containing DEHP in compounds and dry-blends’. 10 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3). 11 Judgment of 12 September 2019, TestBioTech and Others v Commission (C‑82/17 P, EU:C:2019:719). On the other hand, the judgments of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2015:4) and Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe (C‑404/12 P and C‑405/12 P, EU:C:2015:5), and of 3 September 2020, Mellifera v Commission (C‑784/18 P, not published, EU:C:2020:630), concerned the applicability of that procedure. 12 See my Opinion in Bayer CropScience and Bayer v Commission (C‑499/18 P, EU:C:2020:735, point 57 et seq. and the case-law cited). 13 See above, point 19. 14 Opinion of 22 October 2014 (cited in footnote 9), section 10, p. 17. 15 Fourth paragraph of the notes on Article 57 of the Proposal for a Regulation of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (Reach), establishing a European Chemicals Agency and amending Directive 1999/45/EC and Regulation (EC) {on Persistent Organic Pollutants} {SEC(2003) 1171} /* COM(2003) 644 final – COD 2003/0256 */. 16 Judgments of 29 October 1980, Roquette Frères v Council (138/79, EU:C:1980:249, paragraph 25); of 25 June 1997, Italy v Commission (C‑285/94, EU:C:1997:313, paragraphs 22 and 23); and of 9 November 2006, Agraz and Others v Commission (C‑243/05 P, EU:C:2006:708, paragraph 73). 17 Judgments of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraph 77); of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 57); and of 22 November 2017, Commission v Bilbaína de Alquitranes and Others (C‑691/15 P, EU:C:2017:882, paragraph 35). 18 Judgments of 23 September 2003, Commission v Denmark (C‑192/01, EU:C:2003:492, paragraph 51); of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 75); and of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 46 and the case-law cited and paragraph 94). 19 Judgment of 28 March 2019, Verlezza and Others (C‑487/17 to C‑489/17, EU:C:2019:270, paragraph 57). See also judgments of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraph 134); of 10 October 2019, Luonnonsuojeluyhdistys Tapiola (C‑674/17, EU:C:2019:851, paragraph 66); and of 24 October 2019, Prato Nevoso Termo Energy (C‑212/18, EU:C:2019:898, paragraph 58). 20 See Articles 1(1) and recitals 1, 3 and 7 of the REACH Regulation and its legal basis, Article 95(3) EC (now Article 114(3) TFEU), Article 3(3) TEU and Articles 35 and 37 of the Charter of Fundamental Rights. 21 Judgment of the General Court of 11 May 2017, Deza v ECHA (T‑115/15, EU:T:2017:329, paragraph 145). 22 Judgment of the Court of Justice of 23 January 2019, Deza v ECHA (C‑419/17 P, EU:C:2019:52). 23 Section 3.2(i) of the contested review decision. 24 Judgments of 7 February 1979, France v Commission (15/76 and 16/76, EU:C:1979:29, paragraph 7); of 10 July 1986, Belgium v Commission (234/84, EU:C:1986:302, paragraph 16); of 17 May 2001, IECC v Commission (C‑449/98 P, EU:C:2001:275, paragraph 87); of 15 April 2008, Nuova Agricast (C‑390/06, EU:C:2008:224, paragraph 54 et seq.); and of 10 September 2019, HTTS v Council (C‑123/18 P, EU:C:2019:694, paragraph 37). 25 See above, point 19. 26 See above, point 44. 27 Committee for Risk Assessment (RAC) and Committee for Socio-economic Analysis (SEAC), Opinion on a Review Report for: Formulation of recycled soft PVC containing DEHP in compounds and dry-blends (ECHA/RAC/SEAC: AFA-O-0000006672-71-01/D) of 30 November 2018. 28 Judgments of 12 September 2019, TestBioTech and Others v Commission (C‑82/17 P, EU:C:2019:719, paragraph 37), and of 3 September 2020, Mellifera v Commission (C‑784/18 P, not published, EU:C:2020:630, paragraph 63). 29 Judgments of 12 September 2019, TestBioTech and Others v Commission (C‑82/17 P, EU:C:2019:719, paragraph 38), and of 3 September 2020, Mellifera v Commission (C‑784/18 P, not published, EU:C:2020:630, paragraph 64). 30 Judgment of 12 September 2019, TestBioTech and Others v Commission (C‑82/17 P, EU:C:2019:719, paragraph 38). 31 Judgment of 12 September 2019, TestBioTech and Others v Commission (C‑82/17 P, EU:C:2019:719, paragraph 39). 32 Judgments of 29 September 1998, Commission v Germany (C‑191/95, EU:C:1998:441, paragraph 55), and of 14 October 2010, Commission v Austria (C‑535/07, EU:C:2010:602, paragraph 41). 33 Judgment of 13 March 2007, OHIM v Kaul (C‑29/05 P, EU:C:2007:162, in particular paragraphs 53 and 54). 34 Judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others (C‑136/92 P, EU:C:1994:211, paragraph 59); of 29 September 2011, Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 35); and of 17 December 2020, De Masi and Varoufakis v ECB (C‑342/19 P, EU:C:2020:1035, paragraph 34). 35 See the references in footnote 24. 36 Judgments of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation (C‑664/15, EU:C:2017:987, paragraphs 88 and 89), and of 14 January 2021, Stichting Varkens in Nood (C‑826/18, EU:C:2021:7, paragraph 63). 37 See judgment of 19 September 2002, Germany v Commission (C‑377/99, EU:C:2002:504, paragraph 68); with regard to appeals, judgments of 24 September 2002, Falck and Acciaierie di Bolzano v Commission (C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 178); of 18 January 2007, PKK and KNK v Council (C‑229/05 P, EU:C:2007:32, paragraph 66); of 10 April 2014, Areva and Others v Commission (C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 114); and of 28 July 2016, Tomana and Others v Council and Commission (C‑330/15 P, not published, EU:C:2016:601, paragraph 33); and, with regard to treaty infringement proceedings, judgments of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraph 38); and of 11 July 2013, Commission v Netherlands (C‑576/10, EU:C:2013:510, paragraphs 31 and 32). 38 With regard to appeals, judgments of 18 January 2007, PKK and KNK v Council (C‑229/05 P, EU:C:2007:32, paragraph 64); of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 63); and of 24 September 2009, Erste Bank der österreichischen Sparkassen v Commission (C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraph 310). 39 Judgment of 28 March 2019, Tallinna Vesi (C‑60/18, EU:C:2019:264, paragraphs 20 and 21). 40 Judgment of 24 October 2019, Prato Nevoso Termo Energy (C‑212/18, EU:C:2019:898, paragraph 58). 41 See above, in particular point 83. 42 See above, point 85. 43 Judgment of 12 September 2019, TestBioTech and Others v Commission (C‑82/17 P, EU:C:2019:719, paragraph 69). 44 Judgments of 21 July 2011, Nickel Institute (C‑14/10, EU:C:2011:503, paragraph 60) and Etimine (C‑15/10, EU:C:2011:504, paragraph 60); and orders of 22 May 2014, Bilbaína de Alquitranes and Others v ECHA (C‑287/13 P, not published, EU:C:2014:599, paragraph 19); and of 4 September 2014, Rütgers Germany and Others v ECHA (C‑288/13 P, not published, EU:C:2014:2176, paragraph 25); Cindu Chemicals and Others v ECHA (C‑289/13 P, not published, EU:C:2014:2175, paragraph 25); and Rütgers Germany and Others v ECHA (C‑290/13 P, not published, EU:C:2014:2174, paragraph 25). See also judgments of the General Court of 11 May 2017, Deza v ECHA (T‑115/15, EU:T:2017:329, paragraphs 163 and 164), and of the Court of Justice of 23 January 2019, Deza v ECHA (C‑419/17 P, EU:C:2019:52, paragraph 82). 45 Judgment of 21 May 2015, Schräder v CPVO (C‑546/12 P, EU:C:2015:332). 46 Judgments of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraph 76), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 56). 47 Judgments of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraph 77); of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 57); and of 22 November 2017, Commission v Bilbaína de Alquitranes and Others (C‑691/15 P, EU:C:2017:882, paragraph 35). 48 Judgments of 29 October 1980, Roquette Frères v Council (138/79, EU:C:1980:249, paragraph 25); of 25 June 1997, Italy v Commission (C‑285/94, EU:C:1997:313, paragraphs 22 and 23); and of 9 November 2006, Agraz and Others v Commission (C‑243/05 P, EU:C:2006:708, paragraph 73). 49 At present, aside from the authorisation at issue, there is only one authorisation for the use of DEHP for aero engines, while three broader applications for authorisation have been pending since 2013 (https://echa.europa.eu/applications-for-authorisation-previous-consultations?diss=true&search_criteria_ecnumber= 204-211-0&search_criteria_casnumber= 117-81-7&search_criteria_name=Bis%282-ethylhexyl%29+phthalate). Those applications allow the manufacturer, pursuant to Article 56(1)(d) of the REACH Regulation, to continue to place DEHP on the market for the uses applied for. 50 Point 51 of Annex XVII to the REACH Regulation prohibited use for toys and childcare articles until 7 July 2020. Since then, use is generally prohibited, with some exceptions. 51 Recital 5 of the authorisation decision.