Appeal brought on 8 September 2021 by Global Silicones Council, Wacker Chemie AG, Momentive Performance Materials GmbH, Shin-Etsu Silicones Europe BV, Elkem Silicones France SAS against the judgment of the General Court (Eighth Chamber, Extended Composition) delivered on 30 June 2021 in Case T-226/18, Global Silicones Council e.a. v Commission

(Case C-558/21 P)

(2021/C 462/33)

Language of the case: English

Parties

Appellants: Global Silicones Council, Wacker Chemie AG, Momentive Performance Materials GmbH, Shin-Etsu Silicones Europe BV, Elkem Silicones France SAS (represented by: A. Bartl, advokát, A. Kołtunowska, adwokat, R. Cana, avocat, E. Mullier, avocate)

Other parties to the proceedings: American Chemistry Council, Inc. (ACC), European Commission, Federal Republic of Germany, United Kingdom of Great Britain and Northern Ireland, European Parliament, Council of the European Union, European Chemicals Agency

Form of order sought

The appellants claim that the Court should:

— set aside the judgment of the General Court in Case T-226/18;

— annul the contested act (1);

— alternatively, refer the case back to the General Court to rule on the appellants’ application for annulment; and

— order the respondent to pay the costs of these proceedings, including the costs of the proceedings before the General Court.

Pleas in law and main arguments

In support of the appeal, the appellants rely on five pleas in law.

First plea in law, alleging errors in law and misinterpretation of Article 68(1) of the REACH Regulation (2) in concluding that the respondent did not breach Article 68(1) by failing to explicitly make an unacceptable risk finding.

Second plea in law, alleging errors in law by concluding that the respondent did not fail to state reasons as to why the risks associated with D4/D5 in wash-off products were unacceptable. The failure of the respondent to specifically articulate the reasons for that determination constitutes a failure to state reasons and does not allow for court review.

Third plea in law, alleging errors in law by concluding that uncertainty in the assessment of PBT/ vPvB substances justifies an approach whereby any emissions can be a proxy for risk. By equating any emissions with the risk (or even unacceptable risk) for the purposes of the REACH restriction the respondent breached Articles 68(1), Article 69 and Annex XV making a reference to Annex I of the REACH regulation and acted contrary to the settled case law of EU Courts that scientific risk assessment cannot be based on the zero-risk principle.

Fourth plea in law, alleging errors in law and misinterpretation of Annex XIII REACH in ruling that bioconcentration factor (‘BCF’) has a priority over other data, and specifically biomagnification factor (‘BMF’) or trophic magnification factor (‘TMF’).

Fifth plea in law, alleging errors in law and misinterpretation of Annex XIII REACH by determining that the respondent was not required to take into account the hybrid nature of D4 and D5 when concluding the substances fulfil the very Persistent (‘vP’) and very Bioaccumulative (‘vB’) criteria of Annex XIII REACH.

(1) Commission Regulation (EU) 2018/35 of 10 January 2018 amending Annex XVII to Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) as regards octamethylcyclotetrasiloxane (‘D4’) and decamethylcyclopentasiloxane (‘D5’) (OJ 2018 L 6, p. 45).

(2) 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).