ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
20 June 2019 (*)
(Action for damages — Environment — Classification, labelling and packaging of substances and mixtures — Classification of pitch, coal tar, high-temp as an Aquatic Acute 1 (H400) toxic substance and as an Aquatic Chronic 1 (H410) toxic substance)
In Case T‑635/18,
Industrial Química del Nalón, SA, established in Oviedo (Spain), represented initially by K. Van Maldegem, M. Grunchard, R. Crespi and S. Saez Moreno, and subsequently by K. Van Maldegem, M. Grunchard and S. Saez Moreno, lawyers,
applicant,
v
European Commission, represented by M. Wilderspin, R. Lindenthal and K. Talabér-Ritz, acting as Agents,
defendant,
ACTION seeking compensation for the harm allegedly suffered by the applicant in so far as, by 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 (OJ 2013 L 261, p. 5), pitch, coal tar, high-temp was classified as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Facts and proceedings
1        By document lodged at the Court Registry on 23 October 2018, the applicant brought an action under Article 268 TFEU for compensation for the damage which it claims to have suffered as a result of the adoption of 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 (OJ 2013 L 261, p. 5), in so far as that regulation classified pitch, coal tar, high-temp (‘CTPHT’) as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance.
2        By document lodged at the Court Registry on 7 March 2019, the European Chemicals Agency (ECHA) sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.
3        In support of its request, ECHA points out that the Commission’s decision to classify, by adopting Regulation No 944/2013, CTPHT as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance, which, according to the applicant, constitutes an unlawful act causing damage, was based, inter alia, on an opinion of ECHA’s Committee for Risk Assessment. The applicant calls into question, even if only indirectly, the opinion of that committee in the present action, with the result that ECHA has, in its view, an interest in the result of the case. In the light of those factors, it must be concluded that ECHA has an interest in the result of the present case.
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 April 2018, the applicant disputed that ECHA has an interest in the result of the present case.
Law
6        Under the first paragraph of Article 40 of the Statute of the Court of Justice, which applies to the General Court by virtue of Article 53 thereof, the Member States and the EU institutions may intervene in cases before the Court of Justice. The second paragraph of Article 40 of the Statute of the Court of Justice provides that the same right is to be open to any person establishing an interest in the result of the case before the Court of Justice, to the exclusion of cases between Member States, between EU institutions or between Member States, on the one hand, and EU institutions, on the other.
7        It is clear from Article 100(1) of 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, and corrigendum OJ 2007 L 136, p. 3) that ECHA is an EU body with legal personality. ECHA, therefore, does not enjoy the right to intervene granted to the EU institutions pursuant to the first paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 thereof.
8        In those circumstances, the application for leave to intervene submitted by ECHA in the present case may be regarded as admissible only if it fulfils the conditions laid down in the second paragraph of Article 40 of the Statute of the Court of Justice. Under that provision, an EU body establishing an interest in the result of a case is entitled to intervene in that case.
9        Under Article 143(2)(f) of the Rules of Procedure of the General Court, the application to intervene must, in order to be admissible, also contain a statement of the circumstances establishing the right to intervene where the application is submitted pursuant to the second or third paragraph of Article 40 of the Statute of the Court of Justice. Where the application to intervene is lodged by an EU agency and, contrary to the requirements of Article 143(2)(f) of the Rules of Procedure of the General Court, that agency does not state the circumstances establishing its right to intervene, the application to intervene must be rejected (see order of 1 March 2018, ICL-IP Terneuzen and ICL Europe Coöperatief v Commission, T‑610/17, not published, EU:T:2018:139, paragraph 10 and the case-law cited).
10      In the present case, as follows from ECHA’s contentions referred to in paragraph 3 above, that agency meets the requirements of admissibility relating to the need to set out the circumstances establishing its right to intervene, as provided for in Article 143(2)(f) of the Rules of Procedure of the General Court.
11      As regards the interest in the result of a case, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice, it must be borne in mind that, according to settled case-law, that concept must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The expression ‘result’ of the case is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested decision and whether its interest in the result of the case is established (see order of 1 March 2018, ICL-IP Terneuzen and ICL Europe Coöperatief v Commission, T‑610/17, not published, EU:T:2018:139, paragraph 12 and the case-law cited).
12      In particular, as regards an application to intervene lodged by ECHA in a case concerning the annulment of an act which was not issued by that agency, the requirement of an interest in the result of the case is met and the conditions laid down in the second paragraph of Article 40 of the Statute of the Court of Justice are therefore satisfied where the contested act is based on a recommendation adopted by ECHA concerning a substance to which the contested act relates and the applicant challenges, even if only indirectly, the validity of ECHA’s assessments on which the recommendation was based. The requirement of an interest in the result of the case is also met where the applicant indirectly challenges the validity of opinions of ECHA committees and the decision closing the proceedings may have an impact on future opinions issued by those committees (see order of 1 March 2018, ICL-IP Terneuzen and ICL Europe Coöperatief v Commission, T‑610/17, not published, EU:T:2018:139, paragraph 13 and the case-law cited).
13      In the present case, ECHA’s application to intervene satisfies those criteria.
14      In accordance with Article 76(1)(c) of Regulation No 1907/2006, ECHA is to comprise a Committee for Risk Assessment which is to be responsible for preparing the opinion of the agency on evaluations, applications for authorisation, proposals for restrictions and proposals for classification and labelling.
15      In accordance with Article 37(4) of Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2017 L 116, p. 1), the Committee for Risk Assessment is to adopt an opinion on any proposal submitted for the purpose of classification and harmonised labelling of substances.
16      That was the case as regards the procedure followed for the adoption of the regulation which the applicant calls into question in the present case. On 21 November 2011, ECHA’s Committee for Risk Assessment (‘the RAC’) adopted an opinion on CTPHT. That opinion was accompanied by a background document containing the RAC’s detailed analysis and a document containing the response of the Kingdom of the Netherlands to the observations made on the dossier which that Member State had drawn up (see judgment of 7 October 2015, Bilbaína de Alquitranes and Others v Commission, T‑689/13, not published, EU:T:2015:767, paragraph 6). That opinion was sent to the Commission.
17      In accordance with Article 37(5) of Regulation No 1272/2008, where the Commission finds that the harmonisation of the classification and labelling of the substance concerned is appropriate, it is to submit a draft decision concerning the inclusion of that substance together with the relevant classification and labelling elements in Table 3.1 of Part 3 of Annex VI to Regulation No 1272/2008 and, where appropriate, the specific concentration limits or M-factors. That measure is adopted in accordance with the regulatory procedure with scrutiny referred to in Article 54(3) of Regulation No 1272/2008.
18      That was the case as regards the procedure followed with a view to the adoption of the regulation which the applicant calls into question in the present case. On 2 October 2013, on the basis of the opinion of 21 November 2011 of ECHA’s Committee for Risk Assessment, the European Commission adopted Regulation (EU) No 944/2013. In accordance with Article 1(2)(a)(i) and 1(2)(b)(i) of the contested regulation, read together with Annexes II and IV thereto, CTPHT was classified as Carcinogenic 1A (H350), Mutagenic 1B (H340), Toxic for reproduction 1B (H360FD), Aquatic Acute 1 (H400), and Aquatic Chronic 1 (H410) (see judgment of 7 October 2015, Bilbaína de Alquitranes and Others v Commission, T‑689/13, not published, EU:T:2015:767, paragraph 8).
19      On 7 October 2015, the Court annulled Commission Regulation No 944/2013 in so far as it had classified CTPHT as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance (judgment of 7 October 2015, Bilbaína de Alquitranes and Others v Commission, T‑689/13, not published, EU:T:2015:767). By judgment of 22 November 2017, Commission v Bilbaína de Alquitranes and Others, C‑691/15 P, EU:C:2017:882, the Court of Justice upheld the judgment of the General Court. ECHA was granted leave to intervene in those proceedings.
20      By contesting the merits of the Commission’s decision to classify CTPHT as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance, as was decided by the Commission in adopting Regulation No 944/2013, the applicant calls into question, even if only indirectly, the merits of the opinion of ECHA’s Committee for Risk Assessment as regards that substance.
21      None of the applicant’s arguments allow those findings to be called into question.
22      The applicant denies that ECHA has an interest in the result of the case by putting forward, in essence, four arguments.
23      First, in its view, an action for damages, such as that brought in the present case, is an action which is independent of an action for annulment, such as that which led to the annulment of Regulation No 944/2013. Secondly, an action for damages can be admissible even though no action for annulment has been brought. Thirdly, the ‘legality’ of the opinion of ECHA’s Committee for Risk Assessment is not part of the proceedings before the Court in the present case. Fourthly, the fact that that agency was given leave to intervene in Case C‑691/15 P, EU:C:2017:882, also did not show that ECHA has an interest in the result of the dispute in the present case.
24      All those arguments are ineffective because they do not call into question the fact that ECHA’s Committee for Risk Assessment gave an opinion on which the Commission relied in the proceedings which preceded the adoption of Regulation No 944/2013 and that, where, as in the present case, the applicant calls such an opinion into question, even if only implicitly, ECHA is entitled to seek leave to intervene in support of the form of order sought by the Commission.
25      In the light of the foregoing and in view of the fact that ECHA’s application to intervene was submitted in accordance with Article 143 of the Rules of Procedure, that agency’s application for leave to intervene must be granted.
The request for confidential treatment
26      The applicant has requested that, pursuant to Article 144(2), (5) and (7) of the Rules of Procedure, certain confidential material in the case-file not be communicated to ECHA and has produced, for the purpose of such communication, a non-confidential version of the documents in question.
27      At the present stage, the communication of the procedural documents to ECHA must therefore be limited to a non-confidential version of those documents. A decision on whether the request for confidentiality is well founded shall, as appropriate, be taken at a later stage in the light of any objections which might be submitted in that regard.
Costs
28      Under Article 133 of the Rules of Procedure, a decision as to costs shall be given in the final judgment or in the order closing the proceedings. The present order does not close the proceedings either as regards ECHA or in relation to the other parties. The costs must therefore be reserved.
On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The European Chemicals Agency (ECHA) is granted leave to intervene in Case T‑635/18 in support of the form of order sought by the European Commission.
2.      The Registrar shall send to ECHA a non-confidential version of each procedural document served on the parties.
3.      A period shall be prescribed within which ECHA may submit any observations which it may have on the request for confidential treatment. The decision on whether that request is well founded is reserved.
4.      A period shall be prescribed within which ECHA may submit a statement in intervention, without prejudice to the possibility of supplementing it subsequently, if necessary, following a decision on whether the request for confidential treatment is well founded.
5.      The costs are reserved.
Luxembourg, 20 June 2019.
E. Coulon
D. Gratsias
Registrar
President
*      Language of the case: English.