CELEX: 62015CO0691
Language: en
Date: 2016-07-07 00:00:00
Title: Order of the Vice-President of the Court of 7 July 2016.#European Commission v Bilbaína de Alquitranes, SA and Others.#Application for interim measures — Appeal — Application for suspension of the effects of a regulation annulled by the General Court of the European Union — Environment and protection of human health — Regulation (EU) No 944/2013 — Classification of pitch, coal tar, high-temperature, in the categories of acute aquatic toxicity and chronic aquatic toxicity — Manifest error of assessment — Judgment of the General Court annulling that regulation — Suspensive effect of the appeal — Urgency.#Case C-691/15 P-R.

ORDER OF THE VICE-PRESIDENT OF THE COURT
      7 July 2016 (*)
      
      (Application for interim measures — Appeal — Application for suspension of the effects of a regulation annulled by the General Court of the European Union — Environment and protection of human health — Regulation (EU) No 944/2013 — Classification of pitch, coal tar, high-temperature, in the categories of acute aquatic toxicity and chronic aquatic toxicity — Manifest error of assessment — Judgment of the General Court annulling that regulation — Suspensive effect of the appeal — Urgency)
      In Case C‑691/15 P-R,
      APPLICATION for suspension of operation and interim measures under Articles 278 TFEU and 279 TFEU, brought on 24 March 2016,
      European Commission, represented by P. J. Loewenthal and K. Talabér-Ritz, acting as Agents, with an address for service in Luxembourg,
      
      appellant,
      the other parties to the proceedings being:
      Bilbaína de Alquitranes SA, established in Luchana-Baracaldo (Spain), 
      
      Deza a.s., established in Valašské Meziříčí (Czech Republic),
      
      Industrial Química del Nalón SA, established in Oviedo (Spain),
      
      Koppers Denmark A/S, established in Nyborg (Denmark),
      
      Koppers UK Ltd, established in Scunthorpe (United Kingdom),
      
      Koppers Netherlands BV, established in Uithoorn (Netherlands),
      
      Rütgers basic aromatics GmbH, established in Castrop-Rauxel (Germany),
      
      Rütgers Belgium NV, established in Zelzate (Belgium),
      
      Rütgers Poland Sp. z o.o., established in Kędzierzyn-Koźle (Poland),
      
      Bawtry Carbon International Ltd, established in Doncaster (United Kingdom),
      
      Grupo Ferroatlántica SA, established in Madrid (Spain),
      
      SGL Carbon GmbH, established in Meitingen (Germany),
      
      SGL Carbon GmbH, established in Bad Goisern am Hallstättersee (Austria),
      
      SGL Carbon, established in Passy (France),
      
      SGL Carbon, SA, established in La Coruña (Spain),
      
      SGL Carbon Polska S.A., established in Racibórz (Poland),
      
      ThyssenKrupp Steel Europe AG, established in Duisburg (Germany),
      
      Tokai erftcarbon GmbH, established in Grevenbroich (Germany),
      
      represented by K. Van Maldegem, C. Mereu and M. Grunchard, avocats, and P. Sellar, Advocate,
      applicants at first instance and in the present proceedings,
      European Chemicals Agency (ECHA), represented by M. Heikkilä, W. Broere and C. Jacquet, acting as Agents,
      
      GrafTech Iberica SL, established in Navarre (Spain), represented by K. Van Maldegem, C. Mereu and M. Grunchard, avocats, and P. Sellar, Advocate,
      
      interveners at first instance,
      Kingdom of Denmark, represented by C. Thorning and N Lyshøj Malte, acting as Agents,
      
      Federal Republic of Germany, represented by T. Henze and J. Möllers, acting as Agents,
      
      Kingdom of the Netherlands, represented by M. Bulterman and C. Schillemans, acting as Agents,
      
      interveners in the appeal,
      THE VICE PRESIDENT OF THE COURT,
      after hearing the Advocate General, M. Bobek, 
      makes the following
      Order
      1        By its appeal, lodged at the Court Registry on 17 December 2015, the European Commission requested the Court to set aside
         the judgment of the General Court of the European Union of 7 October 2015 in Bilbaína de Alquitranes and Others v Commission (T‑689/13, not published, ‘the judgment under appeal’, EU:T:2015:767), by which it annulled Commission Regulation (EU) No 944/2013
         of 2 October 2013 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 (OJ 2013
         L 261, p. 5, ‘the regulation at issue’) in so far as it classifies pitch, coal tar, high-temp. (EC No 266-028-2; ‘CTPHT’)
         as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance. 
      
      2        That appeal brought against a judgment annulling a regulation has had the effect, in accordance with the second paragraph
         of Article 60 of the Statute of the Court of Justice of the European Union, of postponing the date from which the judgment
         under appeal takes effect until the date of the possible dismissal of that appeal, without prejudice to a party’s right to
         bring an application before the Court under Articles 278 TFEU and 279 TFEU for the suspension of the effects of the annulled
         regulation or for any other interim measures.
      
      3        By application lodged at the Court Registry on 24 March 2016, Bilbaína de Alquitranes SA, Deza a.s., Industrial Química del
         Nalón SA, Koppers Denmark A/S, Koppers UK Ltd, Koppers Netherlands BV, Rütgers basic aromatics GmbH, Rütgers Belgium NV, Rütgers
         Poland Sp. z o.o., Bawtry Carbon International Ltd, Grupo Ferroatlántica SA, SGL Carbon GmbH (Germany), SGL Carbon GmbH (Austria),
         SGL Carbon (France), SGL Carbon SA (Spain), SGL Carbon Polska S.A., ThyssenKrupp Steel Europe AG and Tokai erftcarbon GmbH
         (together ‘Bilbaína de Alquitranes and Others’) applied for interim measures under Articles 278 TFEU and 279 TFEU, seeking,
         in essence, the suspension of the effects of the regulation at issue.
      
       Background to the dispute and the judgment under appeal
      4        Bilbaína de Alquitranes, Dezas, Industrial Química del Nalón, Koppers Denmark, Koppers UK, Koppers Netherlands, Rütgers basic
         aromatics, Rütgers Belgium and Rütgers Poland are suppliers of CTPHT in the European Union. Bawtry Carbon International, Grupo
         Ferroatlántica, SGL Carbon (Germany), SGL Carbon (Austria), SGL Carbon (France), SGL Carbon (Spain), SGL Carbon Polska, ThyssenKrupp
         Steel Europe and Tokai erftcarbon are downstream users of CTPHT for the manufacture of aluminium, carbon, graphite, ferro-alloys
         or steel.
      
      5        CTPHT is the residue from the distillation of high-temperature coal tar, a black solid, composed primarily of a complex mixture
         of three or more membered condensed ring aromatic hydrocarbons. CTPHT is used mainly to produce electrode binders for the
         aluminium and steel industry. It is also used to produce refractories and clay targets, coating for corrosion protection,
         kerosene-resistant airfield applications, road construction, roofing and briquetting.
      
      6        In September 2010, pursuant to Article 37 of 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), the Kingdom of the Netherlands
         submitted a dossier to the European Chemicals Agency (ECHA) proposing, inter alia, that CTPHT should be classified as an Aquatic
         Acute 1 (H400) and Aquatic Chronic 1 (H410) substance.
      
      7        On 1 October 2010, that dossier was made publicly available on the ECHA website and the parties concerned were invited to
         submit their observations.
      
      8         After having received those observations, ECHA referred the dossier to its Risk Assessment Committee (‘RAC’), referred to
         in Article 76(1)(c) of 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).
      
      9        On 21 November 2011, the RAC adopted its opinion on CTPHT, confirming the proposal submitted by the Kingdom of the Netherlands.
         The RAC thus considered that the classification of CTPHT as a substance having aquatic toxicity could not be based on data
         obtained in studies using the Water-Accommodated Fraction approach, but was to be based on an alternative approach, namely
         to regard CTPHT as a mixture. According to that approach, the 16 polycyclic aromatic hydrocarbon (PAH) constituents of CTPHT
         were analysed separately in accordance with their aquatic toxicity effects. By applying a method consisting in finding the
         sum of the results obtained by the attribution of multiplication factors to the different PAHs in order to attach more weight
         to the highly toxic constituents of CTPHT, that analysis showed, according to the RAC’s opinion, that CTPHT had to be classified
         as Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410).
      
      10      On 2 October 2013, on the basis of the RAC’s opinion, the Commission adopted the regulation at issue. In accordance with Article 1(2)(a)(i)
         and 1(2)(b)(i) of that regulation, read together with Annexes II and IV thereto, CTPHT was classified, inter alia, as Aquatic
         Acute 1 (H400), and Aquatic Chronic 1 (H410). Pursuant to Article 3(3) of that regulation, that classification is to apply
         from 1 April 2016. 
      
      11      Bilbaína de Alquitranes and Others brought an action for the annulment of the regulation at issue, in support of which they
         put forward three pleas in law, the second of which alleged a manifest error of assessment. 
      
      12      In the judgment under appeal, the General Court held, in essence, that the Commission had committed a manifest error of assessment
         in that it had failed to comply with its obligation to take into consideration all the relevant factors and circumstances
         so as to take due account of the proportion in which the 16 PAH constituents are present in CTPHT and their chemical effects.
      
      13      Consequently, the General Court upheld the second part of the second plea in law and annulled the regulation at issue in so
         far as it classifies CTPHT as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance.
      
       Forms of order sought
      14      Bilbaína de Alquitranes and Others claim that the Court of Justice should suspend the effect of the regulation at issue, if
         necessary even before hearing the other parties to the proceedings, make any such order as it sees fit and order the Commission
         to pay the costs of the present proceedings.
      
      15      The Commission and ECHA contend that the Court should dismiss that application and order Bilbaína de Alquitranes and Others
         to pay the costs of the interlocutory proceedings.
      
       The application for interim measures
      16      It must be pointed out, first of all, that in accordance with the first paragraph of Article 60 of the Statute of the Court
         of Justice of the European Union, an appeal against a judgment of the General Court does not in principle have suspensory
         effect. However, the second paragraph of Article 60 of that statute provides also that, by way of derogation from Article 280
         TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry
         of the time limit for bringing an appeal referred to in the first paragraph of Article 56 of that statute or, if an appeal
         has been brought within that period, as from the date of dismissal of the appeal, without prejudice, however, to the right
         of a party to apply to the Court of Justice, pursuant to Articles 278 TFEU and 279 TFEU, for the suspension of the effects
         of the regulation which has been declared void or for the prescription of any other interim measure.
      
      17      In bringing the application for interim measures, Bilbaína de Alquitranes and Others have availed themselves of that right.
      
      18      Principally, Bilbaína de Alquitranes and Others submit that there is, at the stage of the interlocutory proceedings, a major
         legal disagreement as to the legality of the regulation at issue. According to the applicants in the interlocutory proceedings,
         the application of the regulation at issue must be suspended, since that regulation lacks even the appearance of legality,
         so that they do not even have to prove that, if the suspension requested is not granted, they will suffer serious and irreparable
         harm. In addition, they submit that, in view of the manifest illegality of that regulation, the Court hearing the application
         for interim relief is in a position to determine ‘prima facie’ that the appeal brought by the Commission against the judgment
         under appeal is bound to fail. 
      
      19      In that regard, it must be pointed out that Article 160(3) of the Rules of Procedure of the Court provides that the applications
         for interim measures must state ‘the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas
         of fact and law establishing a prima facie case for the interim measure applied for’. Accordingly, the court hearing an application
         for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such
         an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable
         harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action.
         Those conditions are cumulative, so that applications for interim measures must be dismissed if any one of them is not satisfied.
         The court hearing the interim application must also if necessary weigh up the interests at stake (orders of the Vice-President
         of the Court of 8 April 2014 in Commission v ANKO, C‑78/14 P-R, EU:C:2014:93, paragraph 14; 14 January 2016 in AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 21, and 2 March 2016 in Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21).
      
      20      Admittedly, the more or less serious nature of a prima facie case is not without relevance for the assessment of urgency (see
         order of the President of the Court of 31 January 2011 in Commission v Éditions Odile Jacob, C‑404/10 P-R, not published, EU:C:2011:37, paragraph 27). Consequently, the urgency that may be pleaded by an applicant
         must be taken into consideration by the court hearing the application for interim measures all the more if the prima facie
         case raised by the pleas and arguments relied on appears particularly serious (see, inter alia, order of the President of
         the Court of 23 February 2001 in Austria v Council, C‑445/00 R, EU:C:2001:123, paragraph 110).
      
      21      The fact remains that, in accordance with Article 160(3) of the Rules of Procedure, the conditions relating to a prima facie
         case and to urgency are distinct and cumulative, so that the party seeking interim measures still needs to prove the imminence
         of serious and irreparable harm (order of the Vice-President of the Court of 12 June 2014 in Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 41 and the case-law cited)
      
      22      In that regard, the line of argument of Bilbaína de Alquitranes and Others is ambiguous. 
      
      23      First, the applicants in the interlocutory proceedings seem to consider that the illegality of the regulation at issue found
         by the General Court in the judgment under appeal should be sufficient to justify granting the interim measures requested,
         since the arguments raised by the Commission in its appeal cannot call in question that illegality. 
      
      24      However, it must be borne in mind that, although the appellate court hearing an application for interim measures, to which
         an application has been made by the successful party at first instance, cannot disregard the fact that the court at first
         instance has ruled in its favour, nevertheless it must ensure that the conditions for the grant of interim measures are fulfilled
         in the case of an application for such measures. The fact that that application has been brought by the successful party at
         first instance, in the context of appeal proceedings brought by the other party against a judgment of the General Court annulling
         a regulation, is irrelevant in that regard (see, to that effect, order of the Vice-President of the Court of 12 June 2014
         in Commission v Rusal Armenal, C‑21/14 P R, EU:C:2014:1749, paragraph 21).
      
      25      Since the EU legislature, by the adoption of the second paragraph of Article 60 of the Statute of the Court of Justice of
         the European Union, decided to confer suspensive effect on the bringing of an appeal against a judgment of the General Court
         annulling a regulation, it is not appropriate for the court hearing an application for interim measures in the context of
         an appeal to deprive that article of a part of its effectiveness by systematically relaxing, or even rejecting, the condition
         of urgency (see, to that effect, order of the Vice-President of the Court of 12 June 2014 in Commission v Rusal Armenal, C‑21/14 P R, EU:C:2014:1749, paragraph 39).
      
      26      Consequently, the argument of Bilbaína de Alquitranes and Others, construed in that manner, cannot be accepted.
      
      27      Secondly, Bilbaína de Alquitranes and Others seem also to rely on the order of the President of the Court of 7 July 1981 in
         IBM v Commission (60/81 R and 190/81 R, EU:C:1981:165), when arguing that when it must be found that the measures under challenge appear —
         having regard to the nature of the complaints made against them — to lack even the appearance of legality, their operation
         should be suspended forthwith, without the need to ascertain whether the condition relating to urgency has been met.
      
      28      In that regard, it must be noted that, even if that case-law were applicable in the present case, the complaint raised at
         first instance against the regulation at issue by Bilbaína de Alquitranes and Others, on the basis of which the General Court
         annulled that regulation in part in the judgment under appeal, was based on a manifest error of assessment by the Commission.
         
      
      29      However, it is not apparent from the judgment under appeal that Bilbaína de Alquitranes and Others argued before the General
         Court that such a complaint, if upheld, would have enabled it to be found that the regulation at issue lacked even the appearance
         of legality. In addition, Bilbaína de Alquitranes and Others have not adduced any evidence to that effect in their application
         for interim measures. Indeed, they simply explained the reasons for which, in their view, the Commission’s appeal should be
         dismissed. They engaged, therefore, in analysis of the prima facie case, which — in the case of an application for interim
         measures made, as in the present case, in the context of an appeal which has suspensive effect since it seeks to have set
         aside a judgment by which the General Court annulled a regulation — requires the court hearing the application for interim
         measures made by the party which was successful at first instance to assess whether the arguments of that party seeking to
         have the appeal dismissed are not without merit, in that they have a sufficient prospect of success (see, to that effect,
         order of the Vice-President of the Court of 12 June 2014 in Commission v Rusal Armenal, C‑21/14 P R, EU:C:2014:1749, paragraph 24).
      
      30      In such circumstances, Bilbaína de Alquitranes and Others cannot be exempted from the requirement to prove that it is urgent
         to grant the measures requested in order to avoid their sustaining serious and irreparable damage.
      
      31      However, Bilbaína de Alquitranes and Others have put forward an argument in that regard only as far as Tokai erftcarbon is
         concerned. 
      
      32      The Court must, therefore, dismiss the application for interim measures as regards Bilbaína de Alquitranes, Deza, Industrial
         Química del Nalón, Koppers Denmark, Koppers UK, Koppers Netherlands, Rütgers basic aromatics, Rütgers Belgium, Rütgers Poland,
         Bawtry Carbon International, Grupo Ferroatlántica, SGL Carbon (Germany), SGL Carbon (Austria), SGL Carbon (France), SGL Carbon
         (Spain), SGL Carbon Polska and ThyssenKrupp Steel Europe.
      
      33      As regards Tokai erftcarbon, it must be ascertained whether the evidence relied upon is sufficient to show that the condition
         relating to urgency is met for that company, even before examining the merits of the arguments relating to a prima facie case.
      
      34      According to Bilbaína de Alquitranes and Others, if the effects of the regulation at issue were not suspended, it would be
         likely to cause imminent harm to Tokai erftcarbon, a company which forms part of the Japanese group Tokai Carbon Co. Ltd and
         is exclusively involved in the manufacture of graphite electrodes from CTPHT.
      
      35      Since 1 April 2016, the new CTPHT classification has been applicable, the direct consequence of which is, they submit, to
         require Tokai erftcarbon to ensure that its operations comply with the requirements of both Directive 2012/18/EU of the European
         Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending
         and subsequently repealing Council Directive 96/82/EC (OJ 2012 L 197, p. 1), and Directive 2008/68/EC of the European Parliament
         and of the Council of 24 September 2008 on the inland transport of dangerous goods (OJ 2008 L 260, p. 13).
      
      36      Bilbaína de Alquitranes and Others submit that it is apparent from the report of an independent expert questioned by Tokai
         erftcarbon that the application of Directive 2012/18 would require it to undertake a series of changes to its operations and
         organisational structure entailing both immediate and recurring financial costs. In particular, the immediate costs linked
         to those changes would equate to [confidential] of the 2014 turnover of CTPHT products sold by Tokai erftcarbon and by the Tokai Carbon Co. group respectively, and would
         even outweigh the profits linked to those sales by Tokai erftcarbon in the last financial year. Because of those costs, the
         harm suffered would be serious.
      
      37      While the recurring costs amount to less than [confidential], they would be definitive. Bilbaína de Alquitranes and Others submit, relying on the expert’s report, that the nature of
         the tasks to be undertaken to implement the technical measures necessary for the application of Directive 2012/18 is such
         that those tasks will bring about irreversible changes in Tokai erftcarbon’s operating systems.
      
      38      In addition, because of the irreversibility of those changes, even if the appeal were to be dismissed, an action for damages
         could not adequately compensate the harm suffered by Tokai erftcarbon. Moreover, Tokai erftcarbon’s fundamental right freely
         to choose and practice its trade would also be compromised.
      
      39      As regards ensuring that Tokai erftcarbon’s operations comply with Directive 2008/68, this would require that company to change
         the mode of transport for its products. A substance that is classified H400/H410, or products containing that substance, should,
         having regard to the risk they represent, be transported under special safety conditions. Consequently, Tokai erftcarbon would
         have to invest in the construction of specially equipped new vessels or change its mode of transport to transport by road.
      
      40      The Commission and ECHA dispute that line of argument.
      
      41      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure
         for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the
         legal protection afforded by the Court. For the purpose of attaining that objective, urgency must be assessed in the light
         of the need for an interlocutory order in order to avoid serious and irreparable harm to the party seeking the interim relief
         (order of the Vice-President of the Court of 19 December 2013 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P-R, EU:C:2013:882, paragraph 18 and the case-law cited). It is for that party to prove that it cannot wait for
         the outcome of the main proceedings without suffering serious and irreparable harm (order of the Vice-President of the Court
         of 12 June 2014 in Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 37 and the case-law cited).
      
      42      Bilbaína de Alquitranes and Others rely, in essence, on two heads of damage which, it is claimed, Tokai erftcarbon would suffer
         if the effects of the regulation at issue were not suspended.
      
      43      As regards, first, the harm relating to the application of Directive 2012/18, the Court notes that, in so far as Bilbaína
         de Alquitranes and Others submit that Tokai erftcarbon will suffer harm of a financial nature linked to bringing the company’s
         operations into line with that directive, it must be borne in mind that, according to settled case-law, purely pecuniary damage
         cannot in principle be regarded as irreparable or even as difficult to repair since it may be the subject of subsequent financial
         compensation (order of the President of the Court of 15 December 2009 in Dow AgroSciences and Others v Commission, C‑391/08 P(R), not published, EU:C:2009:785, paragraph 74 and the case-law cited). It can only be otherwise if it appears
         that, without the interim measures sought, the applicant would be in a position that could imperil its financial viability
         before final judgment is given in the main action, or that its market share would be substantially affected in the light,
         inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs. The existence
         of such circumstances permits the inference that harm of a financial nature is irreparable (see, in particular, order of the
         Vice-President of the Court of 19 December 2013 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P-R, EU:C:2013:882, paragraph 20). 
      
      44      In the present case, Bilbaína de Alquitranes and Others simply submit that the costs linked to bringing Tokai erftcarbon’s
         operations into line are such that they permit the inference that the financial harm suffered by Tokai erftcarbon is serious.
      
      45      It must, however, be found that they have adduced no evidence to prove that, without the interim measures requested, such
         financial harm would also be irreparable in that it could imperil Tokai erftcarbon’s financial viability before final judgment
         is given in the main action or in that its market share would be substantially affected.
      
      46      Bilbaína de Alquitranes and Others further submit that the changes linked to bringing Tokai erftcarbon’s operations into line
         are irreversible. From that observation, they draw a number of conclusions related to the harm sustained. 
      
      47      In particular, because of that irreversibility, first of all, the recurring costs occasioned by those changes would continue
         ad infinitum, so that it would be impossible to quantify the financial harm suffered and that harm would, therefore, be irreparable.
         Next, the decision on the substance, even if favourable to Bilbaína de Alquitranes and Others, would lose its effectiveness
         as regards Tokai erftcarbon which would already have suffered the irreversible consequences stemming from the incorrect classification
         of CTPHT. Lastly, in the light of the changes made to the company’s organisation and operating system, those changes would
         entail an intolerable and disproportionate infringement of its fundamental right freely to choose and practise its trade.
         
      
      48      It must be noted, in that regard, that notwithstanding the importance attached by Bilbaína de Alquitranes and Others to their
         claim that the changes in question are irreversible, they based that claim solely on a passage from the expert report mentioned
         in paragraph 36 above, according to which ‘the nature of the work to be undertaken to implement the technical measures ...
         is such that it will bring about irreversible changes in the operating systems of the company [confidential]. Once in place, it will be practically impossible to undo these changes. Here again, how deep these changes will cut in the
         existing systems in place will only be clear after a complete Hazard Analysis will be performed.’
      
      49      However, as the Commission and ECHA correctly note, no reason has been given in that report which could support its conclusion
         that the changes at issue are irreversible. In addition, it even seems possible to infer from that passage that the analysis
         on which that report is based is only provisional, since only a complete analysis is envisaged as being capable of assessing
         the consequences of the changes in question on Tokai erftcarbon’s operating systems.
      
      50      Since the premiss that those changes are irreversible has not been proved to the requisite legal standard, the claims based
         on such a premiss cannot be sufficient to prove that the harm allegedly suffered by Tokai erftcarbon is irreparable.
      
      51      As regards, secondly, the harm allegedly caused by the change to the mode of transport for CTPHT required under Directive
         2008/68, it is sufficient to note that Bilbaína de Alquitranes and Others have not adduced any evidence which would make it
         possible to assess the consequences for Tokai erftcarbon because of the impossibility of using its own vessels to transport
         products containing CTPHT. In particular, they have produced no evidence to prove that Tokai erftcarbon would in fact be required
         to invest in the construction of new vessels, without being able, for example, to entrust that transport to a third party,
         or even to be able to evaluate the financial consequences of the possible obligation to move from transport by inland waterway
         to land transport until a decision is reached in the main appeal. 
      
      52      In those circumstances, Bilbaína de Alquitranes and Others have not shown to the requisite legal standard that the measures
         sought are urgent.
      
      53      Consequently, there is no need to examine the condition relating to a prima facie case or to weigh up the interests at stake
         and the application for interim measures must be dismissed.
      
      On those grounds, the Vice-President of the Court hereby orders:
      1.      The application for interim measures is dismissed.
      2.      Costs are reserved.
      [Signatures]
      * Language of the case: English.