Case T‑673/13

European Coalition to End Animal Experiments

v

European Chemicals Agency (ECHA)

‛Action for annulment — REACH — Application for registration of the chemical substance triphenyl phosphate — Intervener before the Board of Appeal of ECHA — Applicant not affected directly — Concept of regulatory act — Inadmissibility’

Summary — Order of the General Court (Fifth Chamber), 13 March 2015

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Decision of the Board of Appeal of the European Chemical Agency (ECHA) — Action brought by a person authorised to intervene before the Board of Appeal — Authorisation to intervene not implying that applicant directly affected

Actions for annulment — Application brought by the natural or legal person to whom the contested measure is addressed — Concept — Person designated by the measure or identified by it by reason of the legal effects intended in his regard — Decision of the Board of Appeal of the European Chemical Agency (ECHA) pronounced in respect of a third party — Action brought by a person authorised to intervene before the Board of Appeal — Applicant not having the capacity of addressee of the contested measure — Inadmissibility

In the context of an annulment action under Article 263 TFEU, the applicant may be regarded as an addressee of the contested decision only (1) on the formal condition that it is expressly indicated as an addressee or (2) on the substantive condition that the provisions of the decision make it clear that the applicant is identified in it as an addressee on the basis that the decision, expressing the will of its author, aims to produce binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position. As regards the substantive condition, in the context of an action by a party authorised by the European Chemical Agency (ECHA) to intervene in proceedings before the Board of Appeal of ECHA, in accordance with Article 8(1) of Regulation No 771/2008, establishing the rules of organisation and procedure of the latter, against a decision of that board in relation to a third party, it must be examined whether the specific provisions of that regulation conferred on the applicant the capacity of an addressee of the contested decision and whether such a capacity did not follow from the content itself of the contested decision. Since none of the specific provisions of Regulation No 771/2008 confers on the applicant the capacity of an addressee of the said decision, the latter cannot be regarded as an addressee of the decision of the Board of Appeal where that decision does not seek to create or change any legal right or obligation of the applicant. In that regard, Article 8(3) of Regulation No 771/2008 provides that intervention is to be limited to supporting or opposing the remedy sought by one of the parties. Intervention is therefore incidental to the main proceedings before the Board of Appeal of ECHA. Moreover, the subject of the intervention also depends on the admissibility of the appeal by the main party. The application may be ruled inadmissible pursuant to Article 11(1)(d) of Regulation No 771/2008 if the appellant is neither an addressee of the decision of ECHA challenged in the appeal nor able to establish direct and individual concern. It follows that the intervener must accept the proceedings before the Board of Appeal of ECHA as he finds them at the time of his intervention. (see paras 26, 32, 35-37, 44)

The condition of direct concern laid down in the fourth paragraph of Article 263 TFEU requires, first, that the contested measure affect the individual’s legal situation directly and, secondly, that the addressees of that measure who are entrusted with the task of implementing it be left with no discretion, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules. In the case of an action against a decision of the Board of Appeal of ECHA by an applicant authorised to intervene in proceedings before the said Board of Appeal, the fact that the Board of Appeal has recognised the applicant’s interest in intervening for the purposes of Article 8(1) of Regulation No 771/2008 does not imply that it is directly affected by the contested decision. Unlike the Board of Appeal of ECHA when considering the interest in the result of the dispute in question, the General Court is required, when considering how parties are directly affected, to make an assessment that concerns not the applicant’s interest in bringing an action but the question whether the contested decision does indeed affect the applicant’s legal position. In that regard, the decision of the Board of Appeal to grant the applicant leave to intervene in no way binds the Court in its assessment of the latter’s standing in the case at issue. Moreover, the mere fact that not all of the applicant’s arguments in support of the form of order sought by a third party were accepted does not mean that the contested decision directly affects its legal position. (see paras 49, 56-58)

In the case of an annulment action brought by a European animal protection group against a decision of the Board of Appeal of ECHA requesting a third party to carry out a study of the toxicity of a chemical substance on an animal, the invocation by the applicant of the judicial protection of the interests of laboratory animals cannot justify a finding that it is directly affected by the contested decision. Even though individuals are entitled to effective judicial protection of the rights they derive from the EU legal order, supposing them to be established, the right to such protection cannot call into question the conditions laid down in the fourth paragraph of Article 263 TFEU. Similarly, the existence of different procedural rules in other legal systems cannot call into question the requirements of the fourth paragraph of Article 263 TFEU. (see paras 63, 64)

In an annulment action, there is no remedy whereby the courts can adopt a position by means of a general declaration or statement of principle. (see para. 65)

The criterion of being directly affected is identical in the second and third conditions laid down in the fourth paragraph of Article 263 TFEU. (see para. 67)