62017TJ0755_RES
Case T‑755/17
Federal Republic of Germany
v
European Chemicals Agency
Judgment of the General Court (Fifth Chamber), 20 September 2019
(REACH – Evaluation of substances – Benpat – Persistence – ECHA decision requesting further information – Article 51(6) of Regulation (EC) No 1907/2006 – Action brought before the Board of Appeal – Task of the Board of Appeal – Adversarial procedure – Nature of review – Intensity of review – Powers of the Board of Appeal – Article 93(3) of Regulation No 1907/2006 – Conferral of powers on EU agencies – Principle of conferral – Principle of subsidiarity – Proportionality – Obligation to state reasons)
Approximation of laws – Registration, evaluation, authorisation and restriction of chemicals – REACH Regulation – Evaluation procedure – Decision of the European Chemicals Agency (ECHA) requesting further information as part of the evaluation of a substance – Action brought before the Board of Appeal of the ECHA – Task of the Board of Appeal – Adversarial procedure – Nature of review – Competence of the Board of Appeal to examine pleas seeking to demonstrate the existence of substantive errors vitiating an ECHA decision – Inclusion
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Regulation No 1907/2006, Arts 51(8), 52(2) and 91(1))
(see paragraphs 48-54, 56-64, 85-87, 108, 112, 120, 129, 205)
Approximation of laws – Registration, evaluation, authorisation and restriction of chemicals – REACH Regulation – Evaluation procedure – Decision of the European Chemicals Agency (ECHA) requesting further information as part of the evaluation of a substance – Action brought before the Board of Appeal of the ECHA – Task of the Board of Appeal – Adversarial procedure – Intensity of review – Assessment of highly complex scientific and technical facts – Review of lawfulness limited to the assessment of manifest errors of assessment – Exclusion
(European Parliament and Council Regulation No 1907/2006; Commission Regulations No 1238/2007, Art. 1(2), and No 771/2008, recital 3 and Art. 1(1), second subpara.)
(see paragraphs 55, 192-194, 227)
Résumé
In the judgment of 20 September 2019, Germany v ECHA (T‑755/17), the General Court gave a ruling on the task and powers of the Board of Appeal of the European Chemicals Agency (ECHA) and, more specifically, on the nature and intensity of the review conducted by that board in the context of an action brought before it against an ECHA decision requesting further information on the evaluation of the substance benpat, in accordance with Regulation No 1907/2006. (
1
)
Following the adoption by ECHA of a decision requesting further information from companies which had registered benpat with ECHA, those companies brought before the Board of Appeal of that agency an action as a result of which the contested decision was partially annulled. By its action before the General Court, the Federal Republic of Germany sought to have the decision of the Board of Appeal of ECHA annulled, on the ground, in essence, that that board is not competent to rule on pleas seeking to demonstrate the existence of substantive errors vitiating an ECHA decision. Since the applicant Member State’s arguments were unsuccessful, the Court partially dismissed the action and held that the Board of Appeal of ECHA is competent to examine such pleas.
In the first place, the Court noted, in the light, in particular, of the fact that the members of the Board of Appeal are appointed on the basis of their experience and scientific and legal expertise, that that board has the necessary expertise at its disposal to carry out assessments of scientific evidence itself and that that expertise is intended to ensure a balanced assessment of both legal and technical aspects. In the second place, the Court noted that neither Regulation No 1907/2006 nor Regulation No 771/2008 (
2
) provides for special rules concerning actions against decisions on the evaluation of substances.
In the third place, the Court considered that the objectives pursued by the possibility of bringing an action before the Board of Appeal against an ECHA decision plead in favour of that board’s competence to examine pleas seeking to demonstrate the existence of substantive errors vitiating such a decision. The Court considered that, since the intensity of the review conducted by the Board of Appeal of ECHA is greater than that of a review carried out by the EU Courts, the powers of that board are not limited to verifying the existence of manifest errors, but extend to verifying the technical aspects of a decision requesting further information. Moreover, limiting the powers of the Board of Appeal of ECHA would make it impossible for that board to perform its function, which is to limit litigation before the EU Courts, while still guaranteeing a right to an effective remedy, and would be contrary to the considerations forming the basis of the introduction of the rules concerning the admission of appeals in cases which have already been considered twice, that is to say, initially by that board and subsequently by the General Court. (
3
)
In the fourth place and finally, the Court considered that limiting the powers of the Board of Appeal of ECHA would prevent it from ensuring an effective remedy for the purposes of the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union. After noting that, in adversarial proceedings, the Board of Appeal merely examines whether the arguments put forward before it are capable of demonstrating the existence of an error vitiating the contested decision, the Court took the view that, if that board’s powers were limited in that way, pleas alleging the existence of substantive errors vitiating an ECHA decision could not usefully be invoked in the context of an action for annulment against a decision of that board brought before the Court. Moreover, the approach of limiting the Board of Appeal’s powers would result in unnecessary actions being brought before that board, inasmuch as an applicant wishing to have an ECHA decision annulled solely on the basis of pleas alleging substantive errors vitiating that decision would have to bring an action before the Board of Appeal, even though such an action would, in such a case, be bound to fail.
(
1
)	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, corrigendum OJ 2007 L 136, p. 3).
(
2
)	Commission Regulation (EC) No 771/2008 of 1 August 2008 laying down the rules of organisation and procedure of the Board of Appeal of the European Chemicals Agency (OJ 2008 L 206, p. 5).
(
3
)	Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 17 April 2019 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ 2019 L 111, p. 1).