ORDER OF THE COURT (Chamber determining whether appeals may proceed)
28 May 2024 (*)
(Appeal – Regulation (EC) No 1907/2006 (REACH) – ECHA – Determination as to whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court of Justice – Request failing to demonstrate that an issue is significant with respect to the unity, consistency or development of EU law – Refusal to allow the appeal to proceed)
In Case C‑78/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 31 January 2024,
Cruelty Free Europe, established in Brussels (Belgium), represented by V. McClelland
and S. Vandamme, avocats,
appellant,
the other parties to the proceedings being:
Symrise AG, established in Holzminden (Germany),
applicant at first instance,
European Chemicals Agency (ECHA),
defendant at first instance,
European Federation for Cosmetic Ingredients (EFfCI), established in Brussels (Belgium),
PETA International Science Consortium Ltd, established in London (United Kingdom),
PETA Science Consortium International eV, established in Stuttgart (Germany),
Unilever U.K.
Central Resources Ltd, established in London (United Kingdom),
Unilever ASCC AG, established in Schaffhausen (Switzerland),
interveners at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of L. Bay Larsen, Vice-President of the Court, O. Spineanu-Matei and L.S. Rossi (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Szpunar,
makes the following
Order
1        By its appeal, Cruelty Free Europe asks the Court of Justice to set aside the judgment of the General Court of the European Union of 22 November 2023, Symrise v ECHA (T‑655/20, EU:T:2023:736; ‘the judgment under appeal’), by which the General Court dismissed the action for annulment of Decision A-010-2018 of the Board of Appeal of the European Chemicals Agency (ECHA) of 18 August 2020 relating to the compliance check of the registration dossier for the substance 2-ethylhexyl salicylate, dismissing the action against the decision of 13 March 2018 by which the ECHA had requested Symrise AG to provide, inter alia, studies on vertebrate animals.
The request that the appeal be allowed to proceed
2        Under the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, an appeal brought against a decision of the General Court concerning a decision of an independent board of appeal of the ECHA is not to proceed unless the Court of Justice first decides that it should be allowed to do so.
3        In accordance with the third paragraph of Article 58a of that statute, an appeal is to be allowed to proceed, wholly or in part, in accordance with the detailed rules set out in the Rules of Procedure of the Court of Justice, where it raises an issue that is significant with respect to the unity, consistency or development of EU law.
4        As provided in Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of that statute, the appellant is to annex to the appeal a request that the appeal be allowed to proceed, setting out the issue raised by the appeal that is significant with respect to the unity, consistency or development of EU law and containing all the information necessary to enable the Court to rule on that request.
5        In accordance with Article 170b(1) and (3) of the Rules of Procedure, the Court is to rule on the request that the appeal be allowed to proceed, as soon as possible, in the form of a reasoned order.
6        In support of its request that the appeal be allowed to proceed, the appellant submits that its appeal, alleging that the General Court has rendered ineffective the prohibition on animal testing laid down in Article 18(1)(d) of 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; ‘the Cosmetics Regulation’) and in recital 52 thereof, read in the light 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; ‘the REACH Regulation’), raises an issue that is significant with respect to the unity, consistency and development of EU law.
7        The appellant states, as a preliminary point, that it reproduces the arguments set out in its appeal.
8        In addition, the appellant claims, first, that the General Court has rendered ineffective the prohibition on animal testing laid down in Article 18(1)(d) of the Cosmetics Regulation, a provision that was re-enacted, materially unaltered, in consolidating legislation after the adoption of the REACH Regulation. The General Court’s interpretation of that provision fails to observe the separation of powers and the rule of law.
9        Secondly, the appellant argues that the General Court failed to understand how the REACH Regulation works, in so far as it took the view that there are different tests for consumers and workers under the testing annexes.
10      Thirdly, referring to paragraph 82 of the judgment under appeal, the appellant submits that, by focusing on the adaptations provided for in the REACH Regulation, the General Court failed to grasp the fundamental aspect of the cosmetics bans, namely that they apply irrespective of whether there are alternative testing methods not involving the use of animals, as confirmed by the Opinion of Advocate General Bobek in European Federation for Cosmetic Ingredients (C‑592/14, EU:C:2016:179) and by the European Commission in its public statements.
11      Fourthly, the appellant maintains that the General Court inconsistently held, in paragraph 76 of the judgment under appeal, that ‘it follows that Article 18(1)(d) of the Cosmetics Regulation must be interpreted as meaning that only the tests which appear in the product safety report drawn up in accordance with Article 10 of that regulation to demonstrate the safety of that product are prohibited’. According to the appellant, that provision prohibits all animal testing falling within its scope. It should be obvious that, in the light of the prohibition on animal testing, no data relating to the outcome of testing can lawfully be generated on the basis of animal testing, let alone included in the product safety report. The General Court’s reasoning is therefore said to be entirely circular.
12      Fifthly, referring to the first sentence of recital 52 of the Cosmetics Regulation, according to which ‘it should be possible to claim on a cosmetic product that no animal testing was carried out in relation to its development’, the appellant asserts that the judgment under appeal makes it extremely difficult for the EU industry promoting cosmetics not tested on animals to avoid animal testing. If the judgment under appeal were not set aside by the Court of Justice, it would be likely that that industry would have to change not only its labelling but also its practices in a fundamental way. Recital 52 of the Cosmetics Regulation is thus rendered meaningless.
13      Sixthly, the appellant asserts that the judgment under appeal discourages the development of alternative testing methods not involving the use of animals, which is at odds with the objective of ending animal experiments, as stated in recital 10 of Directive 2010/63/EU of the European Parliament and of the Council of 22 September 2010 on the protection of animals used for scientific purposes (OJ 2010 L 276, p. 33).
14      Seventhly, the appellant submits that the General Court has also rendered meaningless the full regard which the EU legislature paid to animal welfare under Article 13 TFEU when it introduced the cosmetics bans.
15      The appellant states in conclusion that the effect of the judgment under appeal is to destroy the coherence which the EU legislature sought to achieve between the Cosmetics Regulation, the REACH Regulation and Directive 2010/63, which runs counter to the consistent development of EU law.
16      As a preliminary point, it must be recalled that it is for the appellant to demonstrate that the issues raised by its appeal are significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 20, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 18).
17      Furthermore, as is apparent from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read together with Article 170a(1) and Article 170b(4) of the Rules of Procedure, the request that an appeal be allowed to proceed must contain all the information necessary to enable the Court to give a ruling on whether the appeal should be allowed to proceed and to specify, where the appeal is allowed to proceed in part, the pleas in law or parts of the appeal to which the response must relate. Given that the objective of the mechanism provided for in Article 58a of that statute whereby the Court determines whether an appeal should be allowed to proceed is to restrict review by the Court to issues that are significant with respect to the unity, consistency or development of EU law, only grounds of appeal that raise such issues and that are established by the appellant are to be examined by the Court in an appeal (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 19).
18      Accordingly, a request that an appeal be allowed to proceed must, in any event, set out clearly and in detail the grounds on which the appeal is based, identify with equal clarity and detail the issue of law raised by each ground of appeal, specify whether that issue is significant with respect to the unity, consistency or development of EU law and set out the specific reasons why that issue is significant according to that criterion. As regards, in particular, the grounds of appeal, the request that an appeal be allowed to proceed must specify the provision of EU law or the case-law that has been infringed by the judgment or order under appeal, explain succinctly the nature of the error of law allegedly committed by the General Court, and indicate to what extent that error had an effect on the outcome of the judgment or order under appeal. Where the error of law relied on results from an infringement of the case-law, the request that the appeal be allowed to proceed must explain, in a succinct but clear and precise manner, first, where the alleged contradiction lies, by identifying the paragraphs of the judgment or order under appeal which the appellant is calling into question as well as those of the ruling of the Court of Justice or the General Court alleged to have been infringed, and, secondly, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 20).
19      A request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraph of the present order cannot, from the outset, be capable of demonstrating that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law that justifies the appeal being allowed to proceed (orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16, and of 8 April 2024, Sattvica v EUIPO, C‑12/24 P, EU:C:2024:285, paragraph 12).
20      In the present case, as regards, first of all, the reference made to the arguments put forward in the appeal, as indicated in paragraph 7 above, it should be noted that that mere reference does not meet the requirement imposed by the case-law of the Court of Justice that the request that an appeal be allowed to proceed must contain all the information necessary to enable the Court to give a ruling on whether the appeal should be allowed to proceed. Neither that requirement, set out in paragraph 18 above, nor the requirement that such a request must not exceed seven pages, as provided for in Article 170a(2) of the Rules of Procedure, can be circumvented by a mere reference to the arguments put forward in the appeal.
21      As regards, next, the arguments summarised in paragraphs 8, 9 and 12 to 15 of the present order, it should be noted, first, that the appellant does not identify the paragraphs of the judgment under appeal which it seeks to call into question, thereby depriving the grounds relied on in its request that the appeal be allowed to proceed, as set out in the abovementioned paragraphs, of their proper context and rendering them, consequently, insufficiently precise (see, to that effect, orders of 27 January 2022, Acciona v EUIPO, C‑557/21 P, EU:C:2022:68, paragraph 17, and of 13 June 2023, Grupa ‘LEW’ v EUIPO, C‑38/23 P, EU:C:2023:494, paragraph 17). Secondly, the appellant merely states the consequences – which it maintains are inconsistent and detrimental to the development of EU law – that would flow in general terms from the conclusion reached by the General Court in the judgment under appeal, without providing further details. Such claims are too general to be capable of demonstrating the significance of the issue of law raised with respect to the unity, consistency or development of EU law (see, by analogy, order of 15 June 2022, Cyprus v EUIPO, C‑120/22 P, EU:C:2022:493, paragraph 18).
22      Lastly, as regards the appellant’s arguments summarised in paragraphs 10 and 11 above, concerning the application of the cosmetics bans irrespective of whether there are alternative testing methods not involving the use of animals and the allegedly inconsistent interpretation of Article 18(1)(d) of the Cosmetics Regulation, it should be noted that the appellant does not explain, even in a succinct manner, how the General Court’s assessments are vitiated by an error of law. First, the generic reference to the Opinion of Advocate General Bobek in European Federation for Cosmetic Ingredients (C‑592/14, EU:C:2016:179) and to the public statements of the Commission which, according to the appellant, invalidate the assessment in paragraph 82 of the judgment under appeal, is insufficient to identify, even superficially, an error of law vitiating that assessment. Secondly, the appellant has failed to explain, even briefly, how the interpretation of Article 18(1)(d) of the Cosmetics Regulation in paragraph 76 of the judgment under appeal, which the General Court arrived at as a conclusion to its earlier considerations, is vitiated by an error of law. Moreover, the appellant has not explained to the requisite legal standard how those alleged errors affect the outcome of the judgment under appeal.
23      It follows that, in the present case, the appellant has not complied with all the requirements set out in paragraph 18 above.
24      In those circumstances, it must be held that the request submitted by the appellant is not capable of establishing that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.
25      In the light of the foregoing considerations, the request that the appeal be allowed to proceed must be refused.
Costs
26      Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.
27      Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs.
On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:
1.      The appeal is not allowed to proceed.
2.      Cruelty Free Europe shall bear its own costs.
Luxembourg, 28 May 2024.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamberdetermining whether appeals may proceed
*      Language of the case: English.