Appeal brought on 20 May 2019 by European Commission against the judgment of the General Court (Fifth Chamber) delivered on 7 March 2019 in Case T-837/16, Kingdom of Sweden v European Commission

(Case C-389/19 P)

(2019/C 246/13)

Language of the case: Swedish

Parties

Appellant: European Commission (represented by: R. Lindenthal, K. Mifsud-Bonnici, G. Tolstoy, acting as Agents)

Other parties to the proceedings: Kingdom of Sweden,

Kingdom of Denmark,

Republic of Finland,

European Parliament and

European Chemicals Agency

Form of order sought

— Set aside the judgment delivered by the General Court (Fifth Chamber) on 7 March 2019 in Case T-837/16, Kingdom of Sweden v European Commission, dismiss the action at first instance and order the Kingdom of Sweden to pay the costs, or, in the alternative,

— Remit the case to the General Court for reconsideration and reserve the costs of the proceedings at first instance and on appeal, and

— Order that the effects of the contested decision be maintained.

Pleas in law and main arguments

The appeal concerns the judgment delivered by the General Court (Fifth Chamber) on 7 March 2019 in Case T-837/16. In that judgment, the General Court annulled Commission Implementing Decision C(2016) 5644 final of 7 September 2016 on authorisations for certain uses of lead sulfochromate yellow and lead chromate molybdate sulfate red, and dismissed the Commission’s claim that the effects of the decision should be maintained until the Commission could review the application for authorisation.

The Commission has put forward four grounds in support of its appeal.

The first ground of appeal: In those paragraphs of the judgment relating to the standard of proof to be applied in the analysis of the alternatives, and in particular paragraphs 79, 81, 85, 86, 90 and 101, the General Court made a manifestly incorrect application of the law as regards the standard of proof which is applicable under Article 60(4).

The second ground of appeal: Throughout its reasoning and in particular in paragraphs 86, 90 and 96, the General Court made a manifestly incorrect application of the law in that it wholly disregarded the Commission’s discretionary powers to set the threshold value for technical and economic viability in the analysis of the alternatives under Article 60(4) and thus applied an incorrect criterion for the judicial review and interfered in the Commission’s weighing up of social, economic and technical considerations.

The third ground of appeal: In paragraphs 86, 97 and 98, the General Court made a manifestly incorrect application of the law with regard to the contested decision, first by failing to have regard to the fact that no authorisation was granted for uses in which the characteristics of lead pigment as regards technical performance is not necessary and, second, by describing the conditions in the contested decision so that they showed that the condition relating to the analysis of the alternatives in Article 60(4) had not been satisfied.

The fourth ground of appeal: The second paragraph of the operative part, in which the General Court ordered that the effects of the contested decision were not to be maintained, is based on a manifestly incorrect application of the law in paragraph 112 of the judgment.