Action brought on 20 December 2019 – Nouryon Industrial Chemicals and Others v Commission

(Case T-868/19)

(2020/C 68/56)

Language of the case: English

Parties

Applicants: Nouryon Industrial Chemicals BV (Amsterdam, Netherlands), Knoell NL BV (Maarssen, Netherlands), Grillo-Werke AG (Duisburg, Germany), PCC Trade & Services GmbH (Duisburg) (represented by: R. Cana, G. David, lawyers, and Z. Romata, Solicitor)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

— declare the application admissible and well-founded;

— annul the contested decision in its entirety;

— order the defendant to pay the costs of these proceedings; and

— take such other or further measure as justice may require.

Pleas in law and main arguments

In their application, the applicants request the Court to annul Commission Implementing Decision of 16 October 2019 on the compliance check of a registration of dimethyl ether, referred by the European Chemicals Agency to the Commission pursuant to Article 51(7) of Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (1).

In support of the action, the applicant relies on nine pleas in law.

1. First plea in law, alleging the defendant acted ultra vires, and infringed Article 51(7) of the REACH Regulation (2) by adopting the contested decision to cover aspects in relation to which the Member State Committee of the European Chemicals Agency (the ‘Agency’) had reached unanimous agreement, while Article 51(7) of REACH only allows the Commission to adopt a decision when the Agency Committee ‘fails to reach unanimous agreement’.

2. Second plea in law, alleging the defendant manifestly erred in its assessment, and breached Article 13(3) of the REACH Regulation because testing dimethyl ether (the ‘substance’) at the concentrations imposed by the contested decision is technically not possible and goes against the test methods prescribed by measures under Article 13(3) of the REACH Regulation.

3. Third plea in law, alleging the defendant manifestly erred in its assessment by requesting tests that will not generate relevant information on the substance.

4. Fourth plea in law, alleging the defendant manifestly erred in its assessment, and breached Column 2 of Section 8.7.3 of Annex X to the REACH Regulation by requesting the addition of cohorts 2A/2B to the extended one-generation reproductive toxicity study.

5. Fifth plea in law, alleging the defendant acted ultra vires, breached Column I of Section 8.7.3. of Annex X to the REACH Regulation and Article 25 of the REACH Regulation by requesting a dose-range finding study.

6. Sixth plea in law, alleging the defendant acted ultra vires, and breached Article 41 of the REACH Regulation and Annex XI to the REACH Regulation by not allowing the applicants to address the alleged non-compliance with the REACH requirements by submitting an adaptation of the testing requirements, instead of the actual tests as requested.

7. Seventh plea in law, alleging the defendant acted ultra vires, and breached Article 41 of the REACH Regulation by reaching a conclusion on a potential read-across adaptation through the contested decision.

8. Eighth plea in law, alleging the defendant manifestly erred in its assessment, failed to take relevant information into account, and breached Column 2 of Section 8.7.2 of Annex IX to the REACH Regulation by requesting a pre-natal developmental toxicity study (PNDT, test method: EU B.31/OECD TG 414) in rabbits via the inhalation route.

9. Ninth plea in law, alleging the defendant breached the EU principle of proportionality and Article 25 of the REACH Regulation (a) by requesting tests that are unnecessary and unsuitable because it is technically impossible to conduct them as requested by the defendant, and because when conducted they will not yield any relevant information on the substance, (b) by requesting an unnecessary dose-range finding study, also considering the substantial and heavy animal life loss that goes against the requirements in Article 25 of the REACH Regulation, and (c) by dismissing the less onerous option.

(1) C(2019) 7336 final.

(2) 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).