Case T‑392/13

Leone La Ferla SpA

v

European Commission

and

European Chemicals Agency

‛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 — Request for information — Power of ECHA — Proportionality’

Summary — Judgment of the General Court (Sixth Chamber), 15 September 2016

Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Fees due to the European Chemicals Agency (ECHA) — Administrative charge levied on an undertaking unsuccessfully applying for a reduction or exemption — Purpose

Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Fees due to the European Chemicals Agency (ECHA) — Calculation — Account taken of costs borne by ECHA by reason of incorrect information provided by the registrant undertaking — Lawfulness

Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Fees due to the European Chemicals Agency (ECHA) — Reduction in fees for micro-, small and medium-sized enterprises — Determination of the size of an enterprise — Account taken of enterprises of which the latter holds part of the capital — Conditions

Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Fees due to the European Chemicals Agency (ECHA) — Reduction in fees for micro-, small and medium-sized enterprises — Determination of the size of an enterprise — Account taken of relations maintained by the enterprise with enterprises operating in different markets or sectors — Lawfulness

Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Fees due to the European Chemicals Agency (ECHA) — Charges levied for administrative and technical services provided by ECHA — Power of ECHA to determine their amount

Acts of the institutions — Recommendations — Application by means of a reference to a regulation — Lawfulness — Condition — Compliance with the principle of legal certainty — Interpretation of the reference by Regulations Nos 1907/2006 and 340/2008 to Recommendation 2003/361 as excluding some of the criteria mentioned in the latter — Precluded

Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Fees due to the European Chemicals Agency (ECHA) — Power of ECHA to demand evidence that the conditions for a fee reduction or exemption are met

Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case — No need to specify all the relevant factual and legal elements

Actions for annulment — Admissibility criteria — Action against the author of the contested measure — Action for annulment of a measure of the European Chemicals Agency (ECHA) formulated against the Commission — Inadmissibility

Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in support of the objection of illegality not set out in the application — Plea inadmissible

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission regulation on fees and charges due to the European Chemical Agency (ECHA) — Acts comprising implementing measures within the meaning of Article 263, fourth paragraph, TFEU — Person concerned not affected directly and individually — Inadmissibility

(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))

Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based

See the text of the decision. (see paras 21-23, 59)

See the text of the decision. (see para. 24)

See the text of the decision. (see para. 38)

The possibility afforded by Article 277 TFEU of pleading the inapplicability of a measure of general application does not constitute an independent right of action and recourse may be had to it only as an incidental plea. Therefore, simply putting forward a plea of illegality against regulations adopted by the Commission is not sufficient to bring that institution before the Court. Any other interpretation would call into question the fact that the possibility of pleading the inapplicability of a measure of general application under Article 277 TFEU is not an independent right of action. Furthermore, since the action is defined by the application initiating proceedings, a plea of illegality is inadmissible where raised at a later stage in the proceedings. In that regard, a plea of illegality put forward by the applicant in its observations on a plea of inadmissibility is inadmissible, since Article 277 TFEU is not one of the provisions cited in the application in support of the action and it is not based on any matters of law or of fact which came to light in the course of the proceedings. (see paras 40, 41)

See the text of the decision. (see para. 42)

Since the conditions for the admissibility of an action are a matter of public policy, the Court is required to examine them of its own motion and its review, in that regard, is not confined to the pleas of inadmissibility raised by the parties. (see para. 44)

See the text of the decision. (see paras 52, 53)

See the text of the decision. (see paras 54, 55)

See the text of the decision. (see para. 58)

See the text of the decision. (see para. 60)

See the text of the decision. (see para. 65)

See the text of the decision. (see para.66)

It is for the European Chemicals Agency (ECHA), in the context of the budgetary implementation duties assigned to it, to ensure the recovery of all revenue owed to it, including the fees paid by undertakings. In that regard, Article 13(3) of Regulation No 340/2008 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation No 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals expressly states that ECHA may request, at any time, evidence that the conditions for a reduction of fees or charges or for a fee waiver apply. Moreover, Article 13(4) of Regulation No 340/2008 provides that it is the ECHA which is to levy the full fee or charge as well as an administrative charge 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. It follows that ECHA has the necessary power to verify that the conditions enabling a registrant undertaking to receive a reduction in fees or charges or a fee waiver are met. Article 20(2) of Regulation No 1907/2006 cannot alter that finding since that article serves a different purpose, namely to ensure that registration dossiers submitted by registrant undertakings are complete. (see paras 74, 75)

See the text of the decision. (see para.78)

It cannot be precluded, in principle, that the provisions of a recommendation may be applicable by means of an express reference in a regulation to its provisions, provided that general principles of law and, in particular, the principle of legal certainty, are observed. In that regard, in relation to Recommendation 2003/361, concerning the definition of micro, small and medium-sized enterprises, there is no basis for considering, in the absence of specific provision to that effect, that the express reference made thereto by Regulations Nos 1907/2006 and 340/2008 concerns only part of the said definition while excluding some of the criteria mentioned in the Annex thereto. Article 3(36) of Regulation No 1907/2006 specifically refers to the definition of small and medium-sized enterprises (SMEs) appearing in Recommendation 2003/361. That definition, as provided for in Title I of the Annex to Recommendation 2003/361, includes not only staff headcount and financial ceilings determining enterprise categories, but also, inter alia, the types of enterprise taken into consideration in calculating staff numbers and financial amounts. It is necessary to ensure that that definition is not circumvented by purely formal means. (see paras 80, 81)

See the text of the decision. (see para. 91)

The objective of Article 11 of Regulation No 340/2008 is to allow, under certain conditions, the ECHA to levy a charge for services which are not covered by any other fee or charge imposed in that regulation. Therefore, the classification drawn up by the Management Board of the ECHA necessarily includes fixing the amount of the charges in question, subject to receiving a favourable opinion from the Commission, otherwise Article 11 would be deprived of its practical effect. Since Article 13(4) of Regulation No 340/2008, which specifically relates to the administrative charge, refers to the procedure laid down in Article 11(5) thereof, there is nothing to suggest that ECHA lacks the necessary power to fix the amount of that charge. In that regard, it cannot be inferred from Article 59 of Regulation No 2343/2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities that the management boards of EU bodies do not have, where appropriate, the necessary power to determine fees or charges. Moreover, since ECHA has the necessary power to verify the size of registrant undertakings, and, consequently, to seek payment of the fees and administrative charges owed to it, the signing by ECHA’s Executive Director of a decision concerning the size of an enterprise applying the full fee and levying an administrative charge is not unlawful. (see paras 93, 94, 104)

As is apparent from recital 9 of Recommendation 2003/361, to which Regulation No 340/2008 refers, the purpose of examining the relationships which might exist between different undertakings is to remove from the category of SMEs groups of undertakings whose economic power exceeds that of a SME. In the absence of specific provision to that effect, such economic power cannot be restricted to groups of undertakings operating in the same markets, even in sectors falling within the scope of Regulation No 1907/2006. Any other interpretation would render the definition of SMEs set out in Recommendation 2003/361 meaningless, a definition which applies, by express reference, within the framework of Regulation No 1907/2006. (see para. 98)

The fourth subparagraph of Article 3(3) of the Annex to Recommendation 2003/361 provides that enterprises which have one or other of the relationships listed in letters (a) to (d) of the first subparagraph of Article 3(3) of that Annex through a natural person or group of natural persons acting jointly are also considered linked enterprises if they engage in their activity or in part of their activity in the same relevant market or in adjacent markets. In that regard, an enterprise has relationships of the kind listed in that provision, directly with other enterprises, where it holds more than 50% of the capital of the latter and thus there is a presumption that it holds a majority of the voting rights therein. The fact that the shares of the holding enterprise are held by natural persons cannot alter that finding. (see para. 99)

It follows from recital 11 of Regulation No 340/2008 that the imposition of an administrative charge contributes to the objective of discouraging the transmission of false information by registrant undertakings. It is also clear from that recital that the administrative charge cannot be treated as a fine. In that regard, concerning the fact that the administrative charge was calculated by reference to the verification-related costs borne by ECHA, including costs which, ultimately, will not be borne by undertakings which have correctly provided information on their size, that, in itself, cannot lead to the conclusion that the amount of the administrative charge is tantamount to a fine, since the charge in question also contributes to the objective of discouraging the transmission of false information by undertakings. (see para. 112)