ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
11 August 2021 (*)
(REACH – The substance 2‑ethylhexyl salicylate – Exclusive use for the manufacture of cosmetic products – Compliance check of registrations – Intervention – Interest in the result of the case)
In Case T‑655/20,
Symrise AG, established in Holzminden (Germany), represented by R. Cana, E. Mullier and H. Widemann, lawyers,
applicant,
v
European Chemicals Agency (ECHA), represented by L. Bolzonello, W. Broere and A. Deloff-Bialek, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Decision A‑010‑2018 of the Board of Appeal of ECHA of 18 August 2020 concerning the compliance check of a registration dossier for 2‑ethylhexyl salicylate,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1        By application lodged at the Court Registry on 27 October 2020, the applicant, Symrise AG, brought an action for annulment of Decision A‑010‑2018 of the Board of Appeal of the European Chemicals Agency (ECHA) of 18 August 2020 dismissing its appeal brought against ECHA’s decision in the compliance check of the applicant’s registration dossier for 2‑ethylhexyl salicylate (‘the contested decision’).
2        By the contested decision, ECHA’s Board of Appeal upheld the initial decision of ECHA of 13 March 2018 to request Symrise to provide it with information on toxicity studies, which involved the use of laboratory animals and/or, alternatively, valid adaptations, in accordance with Annex XI to 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 (‘the REACH Regulation’), for the assessment of 2‑ethylhexyl salicylate.
3        By document lodged at the Court Registry on 8 April 2021, Unilever UK Central Resources Ltd and Unilever ASCC AG (together, ‘Unilever’) applied for leave to intervene in support of the form of order sought by the applicant.
4        The application to intervene was served on the main parties, in accordance with Article 144(1) of the Rules of Procedure of the General Court.
5        By document lodged at the Court Registry on 3 May 2021, Symrise stated that it did not object to Unilever’s intervention. However, it requested that certain confidential information in the file not be disclosed to Unilever if it was granted leave to intervene. In that regard, it lodged a non-confidential version of the file.
6        By document lodged at the Court Registry on 6 May 2021, ECHA contested Unilever’s interest in the result of the case and contended that its application to intervene should be rejected.
The application to intervene
7        In support of its application to intervene, Unilever submits, in essence, that it has a direct, personal and specific interest in the result of the case, in terms of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union (‘the Statute’).
8        Unilever submits that the judgment to be delivered could directly affect both its legal position and its economic situation.
9        As regards its legal position, Unilever argues that the forthcoming judgment could directly affect its ability to fulfil its contractual obligations and legally binding commitments on animal testing which it has undertaken with PETA International Science Consortium Ltd (‘PISC’).
10      In the first place, Unilever submits that if, pursuant to the judgment to be delivered, Symrise were to supply it with an ingredient for which new data had been produced by means of animal testing, in particular for the manufacture of the products Dove and Simple, those products would be incompatible with the PISC certification criteria and could, just like their brands, lose that certification. Unilever adds that PISC could make such a loss of certification public, which would entail significant costs for those brands and for itself, given the damage to their reputation.
11      In the second place, Unilever argues that a contractual relationship exists between it and Symrise for the supply of 2‑ethylhexyl salicylate, which it uses as a cosmetic ingredient in various finished products. Unilever submits that, if Symrise’s application were to be dismissed by the Court, Symrise would be requested to carry out studies involving the use and suffering of vertebrate animals. In such a situation, Unilever might, in order to avoid the loss of PISC certification, have to interrupt its purchases of 2‑ethylhexyl salicylate from Symrise, which would affect the existing contractual relationship and thus undermine its legal position.
12      As for its economic situation, Unilever argues that the judgment to be delivered could have several consequences.
13      In the first place, its commercial relationship with Symrise could be affected since, if Symrise were requested to carry out tests on animals in order to comply with its registration obligations, in respect of the substances which it supplies to Unilever, under the rules laid down by the REACH Regulation, it might be necessary to terminate the existing contracts, at least in part.
14      In the second place, Unilever submits that its ability to market the products containing 2‑ethylhexyl salicylate could be affected. It maintains that it has built a general policy against animal testing that is now an established part of its business image and is the subject of extensive advertising. Accordingly, if the contested decision were to be upheld, Unilever would no longer be able to market products containing 2‑ethylhexyl salicylate without tarnishing its image and breaching its own internal policy. To avoid this, Unilever would either have to halt the marketing of the affected products or start manufacturing them with other substances. In that regard, according to Unilever, while a halt on marketing would be extremely costly for it, having to replace 2‑ethylhexyl salicylate in the manufacturing process would also be very difficult. It asserts that that substance, which is used as an active ingredient in sunscreens, is difficult to replace owing to regulatory and design constraints. The substitution of any ingredient for 2‑ethylhexyl salicylate in the products would therefore require a significant period of time (up to one year) and significant resources on its part.
15      In the third place, Unilever argues that it might no longer be able to use the PISC certification logos. Consequently, its products would no longer be able to carry those logos and the communications materials for the brands concerned would have to be changed in order not to mislead consumers. In addition, Unilever might, first, have to halt the development of planned packaging and switch to a new packaging design without the PISC certification marks and design and, secondly, have to change its communications materials. According to Unilever, that could also substantially affect the marketing of its products, leading to still further financial losses. Lastly, any need to change the artwork of the products or communications materials would result in significant economic costs for Unilever and would adversely affect ongoing business plans for several brands.
16      ECHA argues that Unilever has not established an interest in the result of the case since it is not directly affected by the contested decision.
17      As regards Unilever’s legal position, ECHA submits, in the first place, that the contested decision is a decision of its Board of Appeal and, therefore, in accordance with Article 288 TFEU, is binding only on the person to whom it is addressed. In the second place, according to ECHA, there could be no direct effect on the contractual relations between Unilever, on the one hand, and PISC and Symrise, on the other. In the third place, ECHA argues that the contractual relationships referred to by Unilever do not imply that Unilever could automatically lose the PISC certification and have to stop buying 2‑ethylhexyl salicylate from Symrise.
18      With regard to Unilever’s economic situation, ECHA argues, as a preliminary point, that it is only on an exceptional basis that a party applying to intervene has been found to have an interest in the result of a case owing to its economic position. In addition, ECHA observes that the case-law, to which Unilever also refers, has recognised such an interest above all in the area of competition.
19      Next, in the first place, ECHA argues that the contract between Unilever and Symrise does not contain any clause providing that the contract could be terminated if Symrise were to conduct studies on animals.
20      In the second place, after recalling the case-law that a distinction must be made between, on the one hand, parties applying to intervene which establish a direct interest in the ruling on the specific act the annulment of which is sought and, on the other hand, those which can establish only an indirect interest in the result of the case by reason of similarities between their situation and that of one of the parties, ECHA argues that Unilever shows at most a general interest in the judgment to be delivered as regards the relationship between Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (OJ 2009 L 342, p. 59) and the REACH Regulation, but not a direct interest in the result of the case. Furthermore, ECHA observes that the argument based on Unilever’s commercial strategy is hypothetical.
21      In the third place, ECHA disputes the assertion that Unilever might no longer be able to use the PISC certification. ECHA adds that, even if that were established, it would constitute only an indirect economic consequence which would not suffice to establish a right to intervene.
22      It follows from the second paragraph of Article 40 of the Statute that any natural or legal person may intervene in a case before one or other of the Courts comprising the Court of Justice of the European Union, other than a case between Member States, between EU institutions or between Member States and EU institutions, if that person establishes an interest in the result of the case.
23      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 and existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The term ‘the result of the case’ refers to the final decision sought, as set out in the operative part of the future judgment (orders of the President of the Court of Justice of 3 April 2014, Commission v Andersen, C‑303/13 P, not published, EU:C:2014:226, paragraph 7, and of 5 July 2018, Uniwersytet Wrocławski and Poland v ERA, C‑515/17 P and C‑561/17 P, not published, EU:C:2018:553, paragraph 7).
24      In addition, where the result of a case will have no direct impact on the legal or economic situation of the person in question, that person may not be granted leave to intervene (order of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:925, paragraph 13).
25      In the present case, it is appropriate to examine, first of all, Unilever’s arguments concerning the effects which the judgment to be delivered could have on its economic situation.
26      In that regard, it should be noted at the outset that, while it is true that Unilever refers to case-law established in the area of competition, to the effect that an applicant for leave to intervene has an interest in the result of the case owing to the effect of a future judgment on its economic situation, that case-law has also been applied in other areas, including that of plant protection products, in which the Court has recognised an interest in the result of the case where a forthcoming judgment is likely to have a negative impact on a defendant’s economic situation (see, to that effect, order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, EU:T:2014:920, paragraph 54).
27      Next, it must be held that, if the judgment to be delivered were to dismiss Symrise’s action against the contested decision, the performance of tests on animals for purposes of the registration of 2‑ethylhexyl salicylate is likely to have an adverse effect on Unilever’s economic situation.
28      In that regard, it is apparent from the case file, in particular from Annex I.5, containing a public statement by Unilever, and Annex I.11, reproducing the agreement between it and PISC concerning the use of the latter’s logos, that Unilever has built a general policy against animal testing which is now an established part of its business image and is the subject of extensive advertising, a fact which is not disputed by ECHA.
29      Furthermore, with regard to the agreement between Unilever and PISC for the use of the latter’s logos, first, it obliges Unilever to notify PISC in the event that the company no longer complies with the condition relating to an absence of animal testing for the products or ingredients of the marketed products, and, secondly, it provides that it is to remain in force for as long as there is compliance with that condition. Accordingly, ECHA cannot argue, on the one hand, that Unilever could continue to use the PISC certification and, on the other, that, if Unilever were no longer able to use that certification for its products containing 2‑ethylhexyl salicylate, that fact would be merely an indirect economic impact. In such a situation, that fact could be regarded as the direct consequence of the judgment to be delivered if that judgment were to dismiss the action brought by Symrise inasmuch as Unilever would no longer be able to market products containing 2‑ethylhexyl salicylate without tarnishing its image and breaching its own internal policy.
30      Consequently, taking into account those circumstances, the case-law cited in paragraph 26 above, to the effect that an interest in the result of the case exists where the judgment to be delivered is likely to have a negative effect on the economic situation of the applicant for leave to intervene, may be applied in the present case, since Unilever can establish such an interest. If Symrise’s action were to be dismissed and it were then required to carry out tests on animals, Unilever would be obliged to review its commercial strategies and its general policy, which excludes the use, in its products, of ingredients which have been subject to such tests.
31      Since Unilever’s application to intervene was made in accordance with Article 143 of the Rules of Procedure, and since it has established that it has an interest in the result of the case, Unilever must be granted leave to intervene, in accordance with the second paragraph of Article 40 of the Statute, which is applicable to proceedings before the General Court under the first paragraph of Article 53 thereof.
The request for confidential treatment
32      Symrise has requested, in accordance with Article 144(5) and (7) of the Rules of Procedure, that certain confidential information in the file be excluded from communication to Unilever, and it has produced a non-confidential version of the file for the purpose of such communication.
33      At the present stage, the communication to Unilever of the procedural documents served must therefore be limited to a non-confidential version. A decision on the merits of the request for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations that may be submitted on that matter.
Costs
34      Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the application to intervene has been granted, the costs associated with the intervention must be reserved.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1.      Unilever UK Central Resources Limited and Unilever ASCC AG are granted leave to intervene in Case T‑655/20 in support of the form of order sought by Symrise AG.
2.      The Registrar shall communicate to Unilever UK Central Resources Limited and Unilever ASCC AG a non-confidential version of all the procedural documents served on the main parties.
3.      A time limit shall be set for Unilever UK Central Resources Limited and Unilever ASCC AG to submit any objections that they may have on the request for confidential treatment. The decision on the merits of that request is reserved.
4.      A time limit shall be set for Unilever UK Central Resources Limited and Unilever ASCC AG to submit a statement in intervention, without prejudice to the possibility to supplement it, if necessary, at a later stage, following a decision on the merits of the request for confidential treatment.
5.      The costs are reserved.
Luxembourg, 11 August 2021.
E. Coulon
H. Kanninen
Registrar
President
*      Language of the case: English.