Judgment of the General Court (Fifth Chamber) of 11 July 2019 –

PlasticsEurope v ECHA

(Case T‑185/17)

(REACH — Establishment of a list of substances identified with a view to their eventual inclusion in Annex XIV to Regulation (EC) No 1907/2006 — Inclusion in that list of Bisphenol A as a substance which is toxic for reproduction — Articles 57 and 59 of Regulation No 1907/2006)

1. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Substances of very high concern — Procedure for identification — Applicability to substances used as intermediates (European Parliament and Council Regulation No 1907/2006, Arts 2(8)(b), 57 and 59) (see paras 44-46, 64, 75)

2. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Uses or categories of use exempted from the authorisation requirement — Exemption in favour of on-site isolated intermediates and transported isolated intermediates — Effect on the identification of such an intermediate as of very high concern — None (European Parliament and Council Regulation No 1907/2006, Arts 2(8)(b) and 59(1)) (see para. 47)

3. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Substances of very high concern — Procedure for identification — Applicability to substances used as intermediates — Reduced registration conditions for certain substances — Specific legal status — Precluded (European Parliament and Council Regulation No 1907/2006, Arts 2(8)(b), 17(3) and 18(4)) (see paras 51, 54)

4. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Substances of very high concern — Procedure for identification — Candidate list — Information sharing obligations in respect of substances of very high concern — Scope (European Parliament and Council Regulation No 1907/2006, Recital 56 and Arts 33 and 59(1)) (see paras 52, 56, 66)

5. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Substances of very high concern — Procedure for identification — Applicability to substances used as intermediates — Reduced registration conditions for certain substances — Information sharing obligations — Included (European Parliament and Council Regulation No 1907/2006, Arts 17(3), 18(4) and 33) (see para. 53)

6. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Substances of very high concern — Procedure for identification — Determination of the level of concern of a substance — Consideration of data other than those relating to the hazards arising from the intrinsic properties of the substances concerned — Whether permissible (European Parliament and Council Regulation No 1907/2006, Art. 57(f)) (see paras 76, 78, 79)

Re:

Application under Article 263 TFEU for annulment of ECHA’s decision of 4 January 2017 (ED/01/2017) by which Bisphenol A was included in the list of substances identified for eventual inclusion in Annex XIV to 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), as referred to in Article 59(1) of that regulation, on the ground that that substance had been identified as toxic for reproduction within the meaning of Article 57(c) of Regulation No 1907/2006.

Operative part

The Court:

1. Dismisses the action;

2. Orders PlasticsEurope to bear its own costs and to pay the costs incurred by the European Chemicals Agency (ECHA) and ClientEarth;