Article 94(1) of Regulation No 1907/2006 provides that an action may be brought before the General Court or the Court of Justice, in accordance with Article 263 TFEU, contesting a decision taken by the Board of Appeal or, in cases where no right of appeal lies before the Board, by the ECHA. In that regard, Article 91(1) of that regulation provides that an appeal may be brought before the Board of Appeal against decisions of the ECHA taken pursuant to Article 9, Article 20, Article 27(6), Article 30(2) and (3) and Article 51 of Regulation No 1907/2006. Those provisions concern decisions which have no link with the fee prescribed for small enterprises, provided for by Article 6(4) of the said regulation. The fact that the applicant has also brought an action against the same decision before the Board of Appeal of ECHA is irrelevant in that regard.

The EU judicature has jurisdiction to hear an action against a decision of the European Chemicals Agency (ECHA) taken under Article 13(4) of Regulation No 340/2008, on the fees and charges payable to the European Chemicals Agency pursuant to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), finding that an applicant for the registration of substances pursuant to Regulation No 1907/2006 does not fulfil the conditions in order to benefit from the reduction in fees for small undertakings, provided for in Article 6(4) of that regulation, and imposing on it an administrative charge.

A decision of the European Chemicals Agency (ECHA) finding that an applicant for registration of substances under Regulation No 1907/2006 does not fulfill the conditions in order to benefit from the reduction of the fee for small undertakings laid down by Article 6(4) of that regulation and imposing on it an administrative charge does not enable the undertaking concerned to take cognizance of the justifications for that decision, and thus infringes the requirements for a statement of reasons laid down by laid down by Article 296 TFEU where it takes into account data of a second undertaking linked to a partner undertaking of an undertaking itself linked to the undertaking under consideration. In the first place, such a situation does not fall within the situations provided for in the Annex to Recommendation 2003/361 concerning the definition of micro-, small and medium-sized undertakings. Thus, where the aid annex provides for the taking into account of the data of undertakings which are not situated immediately upstream or downstream from the undertaking in question, it merely refers to the undertakings linked to the partner undertakings of the undertaking in question (first paragraph of Article 6(3) of the Annex) and the partner undertakings of the undertakings linked to the undertaking in question (second paragraph of Article 6(3) of the Annex).

In the second place, where it is not established that the undertaking under consideration is a partner of the second undertaking, the report annexed to the ECHA decision cannot make a conclusion to that effect without further explanation.

The same applies where ECHA does not provide the undertaking under consideration, during the administrative procedure, with any indication as to the legal basis applicable for the purposes of using the data of the second undertaking.

(see paras 40-44)