Judgment of the General Court (Eighth Chamber) of 9 June 2021 –

Exxonmobil Petroleum & Chemical v ECHA

(Case T‑177/19)

(REACH – Establishment of a list of substances identified with a view to their eventual inclusion in Annex XIV of Regulation (EC) No 1907/2006 – Inclusion of phenanthrene on that list – Articles 57 and 59 of Regulation No 1907/2006 – Manifest error of assessment – Weight of evidence determination – Proportionality – Obligation to state reasons – Right to be heard)

1. Approximation of laws – Registration, evaluation and authorisation of chemicals – REACH Regulation – Substances of very high concern – Procedure for identification – Discretion of the EU authorities – Scope – Judicial review – Limits (European Parliament and Council Regulation No 1907/2006, Arts 57 and 59) (see para. 81)

2. Approximation of laws – Registration, evaluation and authorisation of chemicals – REACH Regulation – Restrictions applicable to certain substances – Establishment of new restrictions and modification of existing restrictions – Assessment with regard to the principle of proportionality – Discretion of the legislature – Area involving political, economic and social choices – Judicial review – Limits – Legality in the absence of manifest error of assessment having regard to the objective pursued (European Parliament and Council Regulation No 1907/2006, Arts 57 and 59 and Annex XIV) (see paras 206, 207)

3. Approximation of laws – Registration, evaluation and authorisation of chemicals – REACH Regulation – Substances of very high concern – Procedure for identification – Distinct from and independent of the evaluation procedure (European Parliament and Council Regulation No 1907/2006, Recitals 19 to 21 and 69 and Arts 14, 44 to 48 and 59) (see para. 216)

4. Approximation of laws – Registration, evaluation and authorisation of chemicals – REACH Regulation – Substances of very high concern – Procedure for identification – Identification on the basis of a ground not mentioned in the dossier originally prepared for the substance – European Chemicals Agency (ECHA) not thereby exceeding its powers (European Parliament and Council Regulation No 1907/2006, Arts 55, 57 and 59 and Annex XV) (see para. 236)

5. Approximation of laws – Registration, evaluation and authorisation of chemicals – REACH Regulation – Substances of very high concern – Procedure for inclusion in Annex XIV – Public consultation – No right for interested parties to be heard on elements resulting from the first public consultation (European Parliament and Council Regulation No 1907/2006, Art. 59(4) and Annex XIV) (see para. 244)

Re:

Application under Article 263 TFEU seeking the annulment of ECHA Decision ED/88/2018 of 19 December 2018, in so far as it places phenanthrene on the list of substances identified as being of very high concern provided for in Article 59 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, corrigendum OJ 2007 L 136, p. 3).

Operative part

The Court:

1. Dismisses the action;

2. Orders Exxonmobil Petroleum & Chemical BVBA to bear its own costs and pay those incurred by the European Chemicals Agency (ECHA);