Case T-167/23: Action brought on 24 March 2023 — Borealis Agrolinz Melamine Deutschland and Cornerstone v ECHA
Date: 2023-03-24
Institutions: General Court
Subjects: abuse of power, chemicals legislation, dangerous substance, organic chemical, precautionary principle, principle of proportionality, rights of the defence








C_2023179EN.01006801.xml










22.5.2023   


EN


Official Journal of the European Union


C 179/68






Action brought on 24 March 2023 — Borealis Agrolinz Melamine Deutschland and Cornerstone v ECHA
(Case T-167/23)
(2023/C 179/94)
Language of the case: English

Parties


Applicants: Borealis Agrolinz Melamine Deutschland GmbH (Lutherstadt Wittenberg, Germany), Cornerstone Chemical Co. (Metairie, Louisiana, United States) (represented by: R. Cana, E. Mullier and Z. Romata, lawyers)

Defendant: European Chemicals Agency

Form of order sought

The applicants claim that the Court should:






—


Declare the application admissible and well-founded;










—


Annul the decision adopted by the defendant on 16 December 2022 and published on 17 January 2023 insofar as it includes melamine (‘the Substance’ or ‘melamine’) in the list of candidate substances for authorisation as Substances of Very High Concern (‘SVHC’) in accordance with Article 59 of Regulation (EC) 1907/2006 (‘REACH’) (‘Contested Decision’);










—


Order the defendant to pay the costs of these proceedings.





Pleas in law and main arguments

In support of the action, the applicants rely on seven pleas in law.






1.


First plea in law, alleging that the defendant has breached Article 57(f) of REACH and manifestly erred in its assessment. The defendant failed to establish, to the standard imposed by Article 57(f) of REACH, that the Substance causes probable serious effects to human health and the environment which give rise to an equivalent level of concern to the effects identified in paragraphs (a) to (e) of Article 57 of the REACH Regulation. Specifically, the defendant has committed manifest errors with regard to each of the different aspects of the legal standard established by Article 57(f) of REACH, vitiating the overall conclusion.










2.


Second plea in law, alleging that the defendant has failed to state reasons in purporting to establish the equivalent level of concern and probable serious effects posed by the Substance.










3.


Third plea in law, refuting the proportionality of the Contested Decision. According to the applicants, the Contested Decision is not appropriate to meet the objectives pursued by the Authorisation title of REACH, given that the overwhelming majority of uses of the Substance will be exempt from authorisation. Even if the identification of the Substance as an SVHC was pursued as an objective in its own right, there are more appropriate measures to achieve the objective of imposing information requirements about the alleged properties of the Substance.










4.


Fourth plea in law, challenging the defendant’s reliance on the precautionary principle to substantiate the conclusion that the Substance would meet the requirements of Article 57(f) of REACH. Article 57(f) is already an expression of the precautionary principle and cannot be used to justify reliance on poorly reliable data or manifestly flawed assumptions.










5.


Fifth plea in law, alleging that the applicants’ right to be heard was breached during the process leading up to the adoption of the Contested Decision.










6.


Sixth plea in law, alleging that the defendant acted ultra vires and breached Article 59(8) of REACH by adopting the Contested Decision without a unanimous agreement of the ECHA Member State Committee, which is an essential procedural requirement, as four Member States abstained.










7.


Seventh plea in law, alleging that the defendant had misused powers by using the SVHC identification process as a means of securing regulatory acceptance of criteria for which the Substance would be a test-case, rather than for the objective provided by the legislator.