Action brought on 20 July 2022 — Evonik Operations v Commission

(Case T-449/22)

(2022/C 380/22)

Language of the case: English

Parties

Applicant: Evonik Operations GmbH (Essen, Germany) (represented by: J.-P. Montfort and T. Delille, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— declare the application admissible and well-founded;

— annul the Commission’s Delegated Regulation (EU) 2022/692 of 16 February 2022 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures and correcting that Regulation insofar as it introduces an harmonised classification and labelling for the substance silanamine, 1,1,1-trimethyl-N- (trimethylsilyl)-, hydrolysis products with silica; pyrogenic, synthetic amorphous, nano, surface treated silicon dioxide (‘the Substance’, or ‘SAS-HMDS’) (CAS No. 68909-20-6) (‘the Contested Regulation’’) (1);

— order the defendant to pay the costs of these proceedings; and

— take such other or further measure as justice may require.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

1. First plea in law, alleging that the Contested Regulation was adopted in breach of several provisions of the CLP Regulation (2), including Articles 36, 37 and Section 3.9 of its Annex I. In particular, RAC failed to demonstrate that the criteria for classification of the Substance as STOT RE 2 were met, hence its opinion could not validly support the contested classification. The Commission could therefore not validly find on the basis of the RAC Opinion that the contested classification was appropriate. In adopting the Contested Regulation, the Commission therefore breached Article 37(5) of the CLP Regulation.

2. Second plea in law, alleging that RAC did not follow the procedure set out by Article 37(4) of the CLP Regulation, breaching thereby those provisions in several regards. First, RAC failed to adopt the RAC Opinion within the 18-month deadline prescribed by law. Second, RAC did not give a formal opportunity to comment on its opinion to the concerned parties though this is specifically required by the CLP Regulation.

3. Third plea in law, alleging that the Commission failed in its duties under Article 37(5), in that it has not adequately verified that the CLH procedure had been properly conducted as per the CLP Regulation. As a result, the Commission could not validly find that the contested classification was appropriate and adopted the Contested Regulation in breach of Article 37(5) of the CLP Regulation.

4. Fourth plea in law, alleging that in adopting the Contested Regulation without the prior conduct and documentation of an Impact Assessment, the Commission breached its commitments under the Interinstitutional Agreement on better-law-making and the principle of sound administration.

(1) OJ L 129, 2022, p. 1.

(2) Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ L 353, 2008, p. 1).