Case T-622/25: Action brought on 12 September 2025 – Kayser Berndorf and Kayser v Commission
Date: 2025-09-12
Institutions: General Court
Subjects: chemical product, classification, environmental protection, labelling, oxide, packaging, reproductive health, toxic substance








C_202505857EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/5857


10.11.2025






Action brought on 12 September 2025 – Kayser Berndorf and Kayser v Commission


(Case T-622/25)

(C/2025/5857)
Language of the case: English

Parties


Applicants: Kayser Berndorf GmbH (Vienna, Austria), Kayser s.r.o. (Prague, Czech Republic) (represented by: D. Abrahams and Z. Romata, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:






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declare the application admissible and well-founded;










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annul the Commission Delegated Regulation (EU) 2025/1222 of 2 April 2025 amending Regulation (EC) No 1272/2008 of the European Parliament and of the Council as regards the harmonised classification and labelling of certain substances (OJ 2025 L 1222) (‘the contested measure’) insofar as it concerns the harmonised classification and labelling (‘CLH’) of dinitrogen oxide (‘the substance’ or ‘N2O’) as hazard category ‘Repr. 1B (H360Df)’ (presumed human reproductive toxicant) (‘the contested classification’); and,










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order the Commission to pay the costs of these proceedings.





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 Commission committed an error of law in breach of Article 37(5) of the CLP regulation (1) by adopting the contested classification on the basis of the vitiated RAC opinion. The RAC opinion is vitiated by the Agency’s ‘secret decision’ to recommend the contested classification, which placed a bar to the generation of necessary data to inform future regulatory decision making on classification. The RAC opinion is inseparable from the contested classification. The manner in which the RAC opinion was vitiated was known to the Commission, which nonetheless relied upon it as the foundation of its adoption of the consequently vitiated contested classification in the contested measure.










2.


Second plea in law, alleging that the Commission’s reliance upon the Agency’s ‘secret decision’ deprived the applicants of the opportunity to generate necessary data, which constitutes a breach of the rights of defence.










3.


Third plea in law, alleging that the Commission committed an error of law in breach of Article 37(5) of the CLP regulation by adopting the contested classification in the contested measure on the basis of the RAC opinion, which is vitiated by materially incomplete data which is incapable of substantiating the conclusions reached. This is the result of the Agency’s failure to fill data gaps in the registration dossier as a result of the misapplication of Section 8.7 of Annex IX to REACH (2). The manner in which the RAC opinion was vitiated was known to the Commission, which nonetheless relied upon it as the foundation of its adoption of the consequently vitiated contested classification in the contested measure.










4.


Fourth plea in law, alleging that the Commission committed a manifest error of assessment in adopting the contested classification in the contested measure. Specifically, its assessment of the available (materially incomplete) data was incapable of substantiating the conclusions reached. Specifically, the Commission could not reach the lawfully required conclusion that adoption was ‘appropriate’, in breach of Article 37(5) of the CLP regulation. Additionally, or alternatively, the Commission could not reach the lawfully required conclusion that there was ‘clear evidence of an adverse effect’, in breach of Section 3.7.2.1.1, Table 3.7.1(a) of Annex I.






(1)  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 2008, L 353, p. 1).

(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).


ELI: http://data.europa.eu/eli/C/2025/5857/oj
ISSN 1977-091X (electronic edition)