62013TJ0675
JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
15 September 2016 (
*1
)
‛REACH — Fee for registration of a substance — Reduction granted to micro, small and medium-sized enterprises — Error in declaration relating to the size of the enterprise — Recommendation 2003/361/EC — Decision imposing an administrative charge — Determination of an enterprise’s size — Power of the ECHA’
In Case T‑675/13,
K Chimica Srl, established in Mirano (Italy), represented by R. Buizza and M. Rota, lawyers,
applicant,
v
European Chemicals Agency (ECHA), represented initially by M. Heikkilä, A. Iber, E. Bigi and E. Maurage and J.-P. Trnka, and subsequently by M. Heikkilä, E. Bigi, E. Maurage and J.-P. Trnka, acting as Agents, and by C. Garcia Molyneux, lawyer,
defendant,
APPLICATION, first, under Article 263 TFEU, for annulment of Decision SME(2013) 3665 of the ECHA of 15 October 2013, stating that the applicant failed to adduce the necessary evidence to receive a reduction of the fee for small enterprises and imposing an administrative charge on it, second, requesting that the applicant be granted small enterprise status and that the corresponding fee be applied to it, and third, under Article 263 TFEU, for annulment of the invoices issued by the ECHA,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse (Rapporteur) and A.M. Collins, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 20 January 2016,
gives the following
Judgment
Background to the dispute
1
On 10 November 2011, the applicant, K Chimica Srl, sought the registration of a substance under 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).
2
During the registration procedure, the applicant indicated that it was a ‘small’ enterprise, within the meaning of Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (‘SMEs’) (OJ 2003 L 124, p. 36). That declaration enabled the applicant to receive a reduction of the fee due for any application for registration such as provided under Article 6(4) of Regulation No 1907/2006. In accordance with Article 74(1) of that regulation, that fee was specified by Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation No 1907/2006 (OJ 2008 L 107, p. 6). Annex I to Regulation No 340/2008 sets out the amounts of the fees due for applications for registration submitted under Article 6 of Regulation No 1907/2006 and the reductions granted to micro, small and medium-sized enterprises. In addition, Article 13(4) of Regulation No 340/2008 provides that, where a natural or legal person that claims to be entitled to a reduction or a fee waiver cannot demonstrate that it is entitled to such a reduction or waiver, the European Chemicals Agency (ECHA) is to levy the full fee or charge plus an administrative charge. In that regard, on 12 November 2010, the Management Board of the ECHA adopted Decision MB/D/29/2010 on the classification of services for which charges are levied (‘Decision MB/D/29/2010’). It is stated in Article 2 and in Table 1 in the Annex to that decision, as amended by Decision MB/21/2012/D of the Management Board of the ECHA of 12 February 2013, that the administrative charge referred to in Article 13(4) of Regulation No 340/2008 is EUR 19900 for a large enterprise, EUR 13900 for a medium sized enterprise and EUR 7960 for a small enterprise.
3
On 10 November 2011, the ECHA sent invoice No 10029302 seeking EUR 9300. That amount corresponded, according to Annex I to Regulation No 340/2008, as applicable at the material time, to the fee payable by a small enterprise, in a joint submission, for substances above 1000 tonnes.
4
On 15 July 2012, the applicant was requested by the ECHA to send a certain number of documents for the purposes of verifying the declaration by which it had indicated that it was a small enterprise.
5
On 14 June 2013, after an exchange of documents and emails, the ECHA adopted Decision SME(2013) 2249. In that decision, the ECHA considered it had not received the necessary evidence from the applicant from which it could conclude that the applicant was a small enterprise and that, pursuant to Article 4(1) of Decision MB/D/29/2010, it had to pay the fee applicable to a large enterprise. In those circumstances, the ECHA informed the applicant that it would send an invoice to the applicant covering the difference between the fee paid initially and the final fee amount due and an invoice of EUR 19900 for payment of the administrative charge.
6
On 17 June 2013, the applicant submitted to the ECHA an email to which it attached new documents. The applicant also requested clarification from the ECHA regarding the calculation of its size.
7
On 2 July 2013, the ECHA replied to the applicant stating that the ECHA understood that the applicant was, in fact, requesting the ECHA to reconsider its position. Taking account of the efforts made by the applicant to clarify the factual circumstances of the case, the ECHA said it had decided, by way of exception, to consider the additional information which might be submitted to it.
8
On 15 October 2013, after further exchanges of documents and emails, the ECHA adopted Decision SME(2013) 3665 (‘the contested decision’). In that decision, the ECHA considered that the evidence provided after Decision SME(2013) 2249 did not alter the conclusion reached in that initial decision. In particular, the ECHA noted that the applicant had not provided information on the ‘indirect partner enterprise’, Compagnie d’Investissement des Alpes SA. On this basis, the ECHA concluded that the applicant had not provided the necessary evidence enabling it to find that the applicant was a small enterprise. The ECHA also informed the applicant that the due date of the invoices issued following the adoption of Decision SME(2013) 2249 had passed and that, accordingly, it would send further invoices to the applicant.
9
On 15 October 2013, pursuant to the contested decision, the ECHA issued invoice No 10045647, in the amount of EUR 13950, and invoice No 10045649, in the amount of EUR 19900.
Procedure and forms of order sought
10
By application lodged at the Court Registry on 16 December 2013, the applicant brought the present action. That action forms part of a series of related cases.
11
The first case in that series of related cases formed the subject matter of the annulling judgment of 2 October 2014, Spraylat v ECHA (T‑177/12, EU:T:2014:849).
12
On 8 January 2015, by way of measures of organisation of the procedure under Article 64 of the Rules of Procedure of the General Court of 2 May 1991, the parties were requested to submit their observations on the potential relevance of the judgment of 2 October 2014, Spraylat v ECHA (T‑177/12, EU:T:2014:849) for the present dispute and to reply to a question. The parties complied with that request within the time allowed.
13
On 13 November 2015, on a proposal from the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of the procedure pursuant to Article 89 of its Rules of Procedure, requested the parties to respond to certain questions and to produce certain documents. The parties complied with those requests within the time allowed.
14
On 8 January 2016, in line with the measures of organisation of the procedure of 13 November 2015, the ECHA submitted new evidence. That evidence was placed on the file.
15
The parties presented oral arguments and replied to the Court’s oral questions at the hearing on 20 January 2016.
16
The applicant claims that the Court should:
—
annul the contested decision;
—
grant the applicant SME status in the light of the documents made available to the ECHA, by ordering that the investigation be limited to four companies;
—
apply the preferential fees laid down for SMEs;
—
annul invoice No 10029302 in the amount of EUR 9300 representing the difference due in respect of the full fee tariff applied to the applicant;
—
annul invoice No 10043954 issued by the ECHA for payment of the administrative charge.
17
In the reply, the applicant claims, in addition to the first heads of claim cited above, that the Court should:
—
annul invoice No 10045647 of 15 October 2013, in the amount of EUR 13950, representing the difference due in respect of the full fee applied to the applicant, and order a refund of the amount paid on 24 January 2014;
—
annul invoice No 10045649 of 15 October 2013, issued by the ECHA for payment of the administrative charge;
—
order the defendant to pay the costs.
18
In its response to the measures of organisation of the procedure of 13 November 2015 (paragraph 13 above), the applicant stated that it was withdrawing the heads of claim seeking annulment of invoices No 10029302 and No 10043954.
19
The ECHA contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
Admissibility of certain heads of claim
20
First, as regards the second and third heads of claim in the application requesting, first, that the applicant be granted SME status in the light of the documents made available to the ECHA, by ordering that the investigation be limited to four companies, and, second, that the preferential fees provided for SMEs be applied, it must be recalled that the EU judicature is not entitled, when exercising judicial review of legality, to issue directions to the institutions or to assume the role assigned to them; rather, it is for the administration concerned to adopt the necessary measures to implement a judgment given in proceedings for annulment (see judgment 15 September 1998, European Night Services and Others v Commission, T‑374/94, T‑375/94, T‑384/94 and T‑388/94, EU:T:1998:198, paragraph 53 and the case-law cited). Therefore, the Court must reject the second and third heads of claim in the application as inadmissible.
21
Second, as regards the heads of claim put forward for the first time in the reply seeking annulment of invoice No 10045647, and refund of the amount paid on 24 January 2014, and annulment of invoice No 10045649, it must be recalled that, under Article 44(1)(d) of the Rules of Procedure of 2 May 1991, the applicant is to state the form of order sought by it in its application. Moreover, it follows from case-law that the condition laid down in Article 48(2) of the Rules of Procedure of 2 May 1991, which allows new pleas to be raised only if they are based on matters of law or of fact which come to light in the course of the procedure, governs a fortiori any amendment to the form of order sought. Thus, in the absence of matters of law or of fact which came to light in the course of the written procedure, only the form of order set out in the originating application may be taken into consideration and the substance of the application must be examined solely with reference to the order sought in the application initiating proceedings (see, to that effect, judgment of 13 September 2013, Berliner Institut für Vergleichende Sozialforschung v Commission, T‑73/08, not published, EU:T:2013:433, paragraphs 42 and 43 and the case-law cited).
22
In the present case, the Court finds that, in the words of the applicant and as is clear from the annexes to the reply, invoices No 10045647 and No 10045649 are dated 15 October 2013, the same date as the date of the contested decision. No evidence has been adduced by the applicant which would permit the inference that those invoices were received after the present action was brought. Therefore, there are no matters of law or of fact which came to light in the course of the written procedure that could justify the belated lodging of the claims covering those invoices.
23
In addition and in any event, it should be noted that according to settled case-law only measures which produce binding legal effects and are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position constitute measures challengeable by an action for annulment under Article 263 TFEU (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; order of 4 October 1991, Bosman v Commission, C‑117/91, EU:C:1991:382, paragraph 13; and judgment of 15 January 2003, Philip Morris International v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 77).
24
In order to ascertain whether a measure the annulment of which is sought is open to challenge, it is necessary to look to its substance as the form in which it is cast is, in principle, immaterial (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 28 November 1991, Luxembourg v Parliament, C‑213/88 and C‑39/89, EU:C:1991:449, paragraph 15; and of 24 March 1994, Air France v Commission, T‑3/93, EU:T:1994:36, paragraphs 43 and 57).
25
Moreover, a decision which merely confirms a previous decision is not open to challenge and any action directed against such a decision is accordingly inadmissible (judgments of 25 October 1977, Metro SB-Großmärkte v Commission, 26/76, EU:C:1977:167, paragraph 4, and of 5 May 1998, United Kingdom v Commission, C‑180/96, EU:C:1998:192, paragraphs 27 and 28; see, also, order of 10 June 1998, Cementir v Commission, T‑116/95, EU:T:1998:120, paragraph 19 and the case-law cited).
26
As regards the concept of a confirmatory measure, according to case-law, a measure is regarded as merely confirmatory of a previous decision if it contains no new factor as compared with the previous decision and was not preceded by a re-examination of the circumstances of the person to whom that decision was addressed (judgment of 7 February 2001, Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraph 44, and order of 29 April 2004, SGL Carbon v Commission, T‑308/02, EU:T:2004:119, paragraph 51).
27
In the present case, it should be noted that, unlike the situation which gave rise to the judgment of 2 October 2014, Spraylat v ECHA (T‑177/12, EU:T:2014:849), Decision SME(2013) 2249, to which reference is made in the contested decision, expressly refers to Decision MB/D/29/2010, as amended by Decision MB/21/2012/D, and states that the ‘ECHA will issue ... an invoice for an administrative charge for the amount of [EUR 19900]’. Decision SME(2013) 2249 also indicates that the ECHA was going to issue a supplementary invoice per submission to cover the difference between the fee initially paid and the fee provided for by Regulation No 340/2008 for a large enterprise. The ECHA, in the contested decision, also stated that it would contact the applicant in respect of new invoices to replace invoices No 10043953 and No 10043954 issued following the adoption of Decision SME(2013) 2249 and the due date of which had passed. It follows that the contested decision, read in the light of Decision SME(2013) 2249, contained the essential elements of the applicant’s obligations to the ECHA. Therefore, invoices No 10045647 and No 10045649 are measures implementing this decision and constitute confirmatory measures within the meaning of the case-law cited in paragraph 26 above (see, by analogy, order of 30 June 2009, CPEM v Commission, T‑106/08, not published, EU:T:2009:228, paragraph 32).
28
Given those factors, the Court must reject as inadmissible the heads of claim, put forward for the first time in the reply, seeking annulment of invoice No 10045647, and refund of the amount paid on 24 January 2014, and annulment of invoice No 10045649.
29
In view of the above, the examination of the action must be confined to the application for annulment of the contested decision.
Substance
30
The applicant puts forward two pleas in law in support of its action. The first plea alleges, in essence, an erroneous interpretation of Recommendation 2003/361. The second plea alleges that the refusal to grant SME status to the applicant was unlawful.
The first plea, alleging erroneous interpretation of Recommendation 2003/361
31
The applicant, recalling the relevant provisions of Recommendation 2003/361, claims that, in order to establish the size of an enterprise, there must be added to the data of the latter the data of any partner enterprises (as well as the data of any enterprises linked to them) and the data of any linked enterprises (as well as those of partner enterprises to that linked enterprise, situated immediately upstream or downstream of it). In this case, the applicant claims that the ECHA wrongly held that Medini Ltd and ALO Immobilien GmbH were the applicant’s ‘partner enterprises’. These companies were, in fact, partners of ICB Srl, which is an enterprise linked to the applicant. Moreover, neither the Compagnie d’Investissement des Alpes nor any of Medini’s partner enterprises, in respect of which the ECHA requested information were ICB’s partner enterprises and, a fortiori, would not be situated immediately upstream or downstream of that latter enterprise. In determining the size of the applicant, account should therefore be taken only of the data of the applicant, of ICB (as a linked enterprise) and of Medini and ALO Immobilien (as ICB’s partner enterprises). The applicant submitted to the ECHA all relevant information regarding those enterprises. In respect of the ECHA’s interpretation, in its pleadings, of the second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361, the applicant points out that the term ‘exclusively’ is not in the Italian version of that article. In addition, the ECHA’s interpretation takes into account the data of the partner or linked companies ‘ad infinitum’. That interpretation is overly broad. The applicant is not part of a group of enterprises which would include the Compagnie d’Investissement des Alpes or any of Medini’s partner enterprises. The User Guide [on] SMEs, published by the European Commission and available on the internet (the ‘SME definition guide’), invoked by the ECHA in its pleadings supports the applicant’s interpretation.
32
The ECHA states, first, that the enterprises Medini and ALO Immobilien, were not regarded as the applicant’s partners. Moreover, the contested decision referred to the Compagnie d’Investissement des Alpes as the applicant’s ‘indirect partner enterprise’. Requests for information concerning that enterprise and those potentially linked to Medini are grounded in Article 6 of the Annex to Recommendation 2003/361. In particular, under the second subparagraph Article 6(3) of the Annex to Recommendation 2003/361, the ECHA sought to assess the data from the two partner enterprises of ICB (namely Medini and ALO Immobilien). To that end, the ECHA states that it applied the first subparagraph of Article 6(3), which provides guidance on how to establish the data of a partner enterprise of a linked enterprise. Consequently, the ECHA asked the applicant to provide the data of ALO Immobilien and Medini and those of the enterprises linked to them (namely the Compagnie d’Investissement des Alpes). That request is also consistent with the wording of the second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361, which does not provide, in contrast to what is provided for autonomous enterprises, that the establishment of the data of partner enterprises of the enterprises linked to the enterprise concerned should be made ‘exclusively’ on the basis of the accounts of those enterprises. The ECHA notes that the word ‘exclusively’ is included in numerous language versions of Recommendation 2003/361. The ECHA therefore interprets the second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 as requiring it to take into account the data of all enterprises linked to the partner enterprises referred to in that article. A contrary interpretation would result in the SME status of an enterprise varying based on whether or not the partner enterprises of the enterprises linked to the enterprise concerned are included in the consolidated balance sheets of enterprises to which they are linked (in this case the Compagnie d’Investissement des Alpes). That interpretation is also consistent with the strict interpretation of criteria which should be adopted with regard to Recommendation 2003/361. It is likewise consistent with the SME definition guide and in particular the Explanatory Note and Annexes to that guide. The ECHA adds that the concept of a ‘group of enterprises’, as put forward by the applicant, is contrary to the provisions of Recommendation 2003/361. Whether or not an enterprise belongs to a group depends on the relations which it has with other enterprises and not on the existence of a holding company. The ECHA notes that, in the present case, one of the shareholders and directors of ICB is also chairman of the board of directors of the applicant and a director of ALO Immobilien. The data of the Compagnie d’Investissement des Alpes must be therefore be analysed before deciding on the SME status of the applicant.
33
At the outset, it must be pointed out that both Regulation No 1907/2006 (Article 3) and Regulation No 340/2008 (recital 9 and Article 2) refer to Recommendation 2003/361 for the purposes of defining SMEs.
34
Recommendation 2003/361 contains an annex, Title I of which concerns the ‘definition of micro, small and medium-sized enterprises adopted by the Commission’. Article 2 thereof, is entitled ‘Staff headcount and financial ceilings determining enterprise categories’.
35
In the case of an autonomous enterprise, that is to say an enterprise which is not classified as a ‘partner enterprise’ or ‘linked enterprise’ within the meaning of Article 3(2) and (3) of the Annex to Recommendation 2003/361, the data, including the number of staff, are determined exclusively on the basis of the accounts of that enterprise, pursuant to Article 6(1) of that annex.
36
In the case of an enterprise having partner enterprises or linked enterprises, the data, including the headcount, are determined on the basis of the accounts and other data of the enterprise or, where they exist, the consolidated accounts of the enterprise, or the consolidated accounts in which the enterprise is included through consolidation, in accordance with the first subparagraph of Article 6(2) of the Annex to Recommendation 2003/361. According to the second and third subparagraphs of Article 6(2) of the Annex to Recommendation 2003/361, it should add to those data, first, the data of the partner enterprises (situated immediately upstream or downstream from the enterprise in question) in proportion to the percentage interest in the capital or voting rights, whichever is greater of these two percentages, and, second, 100% of the data of any enterprise which is linked directly or indirectly to the enterprise in question, where the data have not already been included through consolidation in the accounts.
37
For the purposes of applying Article 6(2) of the Annex to Recommendation 2003/361, the data of partner enterprises of the enterprise in question are derived from their accounts and their other data, consolidated if they exist, which are added to 100% of the data of enterprises which are linked to those partner enterprises, unless their accounts data are already included through consolidation, pursuant to the first subparagraph of Article 6(3) of the Annex to Recommendation 2003/361. As for the data of the enterprises which are linked to the enterprise in question, they are to be derived from their accounts and their other data, consolidated if they exist. To these are added, pro rata, the data of any possible partner enterprise of that linked enterprise, situated immediately upstream or downstream from it, unless it has already been included in the consolidated accounts with a percentage at least proportional to the percentage interest in the capital or voting rights, whichever is the higher of those two percentages, pursuant to the second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361.
38
In the present case, the ECHA stated in the contested decision that the applicant had not provided information on the ‘indirect partner enterprise’, the Compagnie d’Investissement des Alpes SA. On that basis, the ECHA concluded that the applicant had not provided the evidence necessary for it to be considered as a small enterprise.
39
The ECHA specified its reasons, regarding the request for information relating to the Compagnie d’Investissement des Alpes, in an email of 17 July 2013 and in a letter of 15 October 2013, bearing the reference SME(2013) 3666, annexed to the contested decision.
40
In the email of 17 July 2013, the ECHA said the Compagnie d’Investissement des Alpes had to be considered as a partner enterprise of the applicant, since it was directly linked to ALO Immobilien, itself a partner of the applicant. Consequently, according to the ECHA, the data of the Compagnie d’Investissement des Alpes had to be taken into account in determining the size of the applicant. The ECHA referred, in that respect, to Articles 3 and 6 of the Annex to Recommendation 2003/361.
41
In the letter of 15 October 2013, annexed to the contested decision, the ECHA recalled the importance of Article 6 of the Annex to Recommendation 2003/361, as a whole, as regards the data of Medini, ALO Immobilien and the Compagnie d’Investissement des Alpes. First, citing the provisions of second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361, the ECHA considered that the wording ‘immediately upstream or downstream’ did not limit the relationship to the enterprise in question. Then the ECHA stated, ‘furthermore’, that the data of the Compagnie d’Investissement des Alpes had been requested in accordance with the first subparagraph of Article 6(3) of the Annex to Recommendation 2003/361, ‘since, according to that article, the data of the partner enterprises ([namely] Medini … and ALO Immobilien) of the enterprise in question are derive[d] from their accounts and their other data, consolidated if they exist[ed]’ and that, ‘to these [were] added 100% of the data of enterprises [were] linked (that is to say, the Compagnie d’Investissement des Alpes) to these partner enterprises ([namely] ALO Immobilien) unless their accounts data [were] already included through consolidation’. Finally, the ECHA held that, since the Compagnie d’Investissement des Alpes was linked to ALO Immobilien, which was a partner of ICB, which in turn was itself linked to the applicant enterprise, the data of the ‘indirect partner enterprise’, the Compagnie d’Investissement des Alpes, was to be taken into account when establishing the overall data of the applicant. ‘For this reason’, the ECHA informed the applicant that the latter was to receive the contested decision confirming that it was not eligible for the fee reduction.
42
It follows from the reasons given by the ECHA, first, that the legal basis invoked by the ECHA to request the applicant to communicate information relating to the Compagnie d’Investissement des Alpes was the first subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 and, second, that the lack of disclosure of such information by the applicant justified the adoption of the contested decision.
43
First, the Court should recall, in that respect, the links maintained by the applicant at the material time with other enterprises, which are not disputed by the parties, as they confirmed at the hearing. First, the applicant was linked to ICB, which holds a majority of the applicant’s share capital. Then ICB was a partner in two companies, and Medini and ALO Immobilien, holding more than 25% but less than 50% of their share capital. Finally, ALO Immobilien was linked to the Compagnie d’Investissement des Alpes, in so far as the latter enterprise held a majority of the share capital and, therefore, a priori, of the shareholder voting rights in ALO Immobilien.
44
Second, it should be noted that, given the factual circumstances of the case, the legal basis relied upon by the ECHA did not allow the applicant to request information relating to the Compagnie d’Investissement des Alpes. It is clear from the first subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 that that provision applies for assessing the data of the partner enterprises of ‘the enterprise in question’, that is to say, the enterprise which is the object of a review, in connection with Recommendation 2003/361, the purpose of which is to determine its size. In the present case, and contrary to what the ECHA indicated in the letter of 15 October 2013, Medini and ALO Immobilien are not partner enterprises of the applicant within the meaning of Article 3(2) of the Annex to Recommendation 2003/361. The ECHA acknowledged as much at the hearing. As for the concept of ‘indirect enterprise partner’, invoked by the ECHA during the administrative procedure and before the Court, it is not included in Recommendation 2003/361.
45
Third, the Court rejects the interpretation of the contested decision made by the ECHA in its pleadings, according to which it had sought to assess the data of the ICB’s two partner enterprises, namely Medini and ALO Immobilien, on the basis of the second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 and had, for that purpose, applied the first subparagraph of Article 6(3) of that annex, which provides guidance on how to establish the data of a partner enterprise of a linked enterprise. Such an interpretation is at odds with the letter of 15 October 2013. According to that letter, first, the ECHA requested data from the Compagnie d’Investissement des Alpes pursuant to the first subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 and, second, the ECHA applied that provision in this case.
46
Fourth, even if, as the ECHA indicated in its pleadings, its intention was to apply the second subparagraph Article 6(3) of the Annex to Recommendation 2003/361 and then, in that context, to refer to the first subparagraph of that paragraph, that reasoning does not appear clearly and unambiguously in the documents before the Court and would not comply in any event with the obligation to state reasons incumbent on the ECHA under Article 296 TFEU.
47
Fifth, and for the sake of completeness, the ECHA’s interpretation of the provisions of the Annex to Recommendation 2003/361 cannot be accepted. As noted above, the first subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 only applies to the data of the partner enterprises of ‘the enterprise in question’. That provision does not apply to the partner enterprises of the enterprise linked to the enterprise in question, which are referred to in the second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361. The first subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 cannot therefore be used to determine the data of the partner enterprises mentioned in the second subparagraph of that paragraph. This interpretation is confirmed by the fact that the first subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 is designed, as clearly indicated in its introductory phrase, ‘for the application of paragraph 2’ of Article 6 of that annex and not for the application of the second subparagraph of Article 6(3) of that annex. Furthermore, the Court must reject the argument advanced by the ECHA during the hearing that, in essence, the words ‘enterprise in question’ could be interpreted as covering all the enterprises from which data should be collected and, in particular, in this case, ALO Immobilien. Apart from the fact that this interpretation is not consistent with the objective of Recommendation 2003/361, which is to determine the size of the enterprise in question and not the sizes of those enterprises which have links with it, it could lead, in certain cases, to there being no limit as to the consideration of the data of the enterprises situated either upstream or downstream of the enterprise in question, which the ECHA acknowledged at the hearing. Such an interpretation clearly goes beyond the text of Recommendation 2003/361, which aims to take into account, within certain limits expressly laid down by the recommendation, the data of enterprises other than those of the enterprise in question.
48
The other arguments put forward by the ECHA cannot change that finding.
49
In particular, as regards the use of the term ‘exclusively’, in most of the language versions of Article 6(1) of the Annex to Recommendation 2003/361 and, in substance according the ECHA, in the Italian version of that article, it should be noted that it is to distinguish between an autonomous enterprise, in respect of which a determination is to be made exclusively on the basis of that enterprise’s accounts, and an enterprise that is not autonomous, in respect of which the accounts and data of partner or linked enterprises serve as such a basis. The absence of the word ‘exclusively’ in the second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 does not therefore mean that the ECHA could consider, without limitation, data from enterprises situated upstream or downstream of the enterprise in question.
50
With regard to the SME definition guide, published by the Commission on the internet, first of all, it should be noted that the guide to which the ECHA refers in its pleadings is subsequent to the contested decision. Next, it should be recalled that both Regulation No 1907/2006, in Article 3 thereof, and Regulation No 340/2008, in recital 9 and Article 2 thereof, refer to Recommendation 2003/361 for the purposes of defining SMEs, not the SME definition guide. Lastly, that guide does not call into question the words used in Recommendation 2003/361, in particular as regards the principle of legal certainty.
51
As to the argument raised by the ECHA before the Court that the applicant belongs to a ‘group of enterprises’ and, aside from the fact that the ECHA has not clarified what legal basis would allow it to take account of any such circumstance in the present case, it is not clear from the documents before the Court, in particular Decision SME(2013) 2249, the email of 17 July 2013, the letter of 15 October 2013 and the contested decision, that the ECHA referred to that factor as the basis for its request concerning the Compagnie d’Investissement des Alpes.
52
Given all those elements, the Court must conclude that the legal basis put forward in this case by ECHA does not justify the request issued to the applicant concerning the Compagnie d’Investissement des Alpes.
53
Accordingly, the Court must uphold the first plea in support of the action and, accordingly, annul the contested decision.
The second plea, alleging that the refusal to grant SME status to the applicant was illegal
54
The applicant, considering the arguments developed under the first plea, argues that the ECHA should have considered 100% of its own data, 100% of ICB’s data, 40% of Medini’s data and 36.66% of ALO Immobilien’s data. The data from the Compagnie d’Investissement des Alpes and potential partner enterprises of Medini would not be relevant in determining the applicant’s size. The ECHA could not therefore have refused it SME status based on the failure to transmit the requested documents relating to those latter enterprises.
55
The ECHA notes that the interpretation of Recommendation 2003/361, as proposed by the applicant does not comply with the provisions and objectives of the latter or the SME definition guide. Consequently, the ECHA did not err in finding that the applicant could not be granted SME status, since it had not been able to provide all data necessary to demonstrate that it was entitled to reduced registration fees.
56
In that regard, it should be recalled that the failure to communicate information relating to the Compagnie d’Investissement des Alpes provided the grounds for the contested decision and, in particular, the refusal by the ECHA to grant the applicant a fee reduction.
57
As has been stated in the first plea, the legal basis put forward in the present case by the ECHA does not justify the request sent to the applicant relating to the Compagnie d’Investissement des Alpes.
58
Therefore, the ECHA also erred in finding that the failure to communicate information relating to the Compagnie d’Investissement des Alpes provided the grounds, in the present case, for its refusal to grant the applicant a fee reduction.
59
Accordingly, the Court must uphold the second plea in support of the action and declare, on that basis also, that the contested decision must be annulled.
Costs
60
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the ECHA has been essentially unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.
Annuls Decision SME(2013) 3665 of the European Chemicals Agency (ECHA) of 15 October 2013;
2.
Dismisses the action as to the remainder;
3.
Orders the ECHA to bear its own costs and to pay those incurred by K Chimica Srl.
Frimodt Nielsen
Dehousse
Collins
Delivered in open court in Luxembourg on 15 September 2016.
[Signatures]
(
*1
)	Language of the case: Italian.