Deza a.s. v European Chemicals Agency.
Date: 2019-01-23
31


The appellant’s proposed interpretation of the judgments of 15 March 2017, Polynt v ECHA (C‑323/15 P, EU:C:2017:207) and of 15 March 2017, Hitachi Chemical Europe and Polynt v ECHA (C‑324/15 P, EU:C:2017:208) is based on a misreading of those judgments. In paragraph 24 of each of those judgments, the Court of Justice considered that Article 57(a) to (c) of the REACH Regulation covers, first of all, substances meeting the criteria for classification in the hazard class carcinogenicity, mutagenicity or reproductive toxicity (‘CMR’) category 1A or 1B, in accordance with sections 3.5 to 3.7 of Annex I to 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). Next, Article 57(d) and (e) covers substances which are persistent, bioaccumulative and toxic and those which are very persistent and very bioaccumulative, in accordance with the criteria set out in Annex XIII to the REACH Regulation. Those criteria are based on the assessment of the hazards presented by those substances. Lastly, Article 57(f) of that regulation covers all other substances which do not fulfil any of the foregoing criteria but ‘for which there is scientific evidence of probable serious effects to human health or the environment which give rise to an equivalent level of concern to those of other substances listed in points (a) to (e), and which are identified on a case-by-case basis in accordance with the procedure set out in Article 59’ (judgment of 15 March 2017, Polynt v ECHA, C‑323/15 P, EU:C:2017:207, paragraph 24).
32


The Court of Justice has held that Article 57(f) of the REACH Regulation provides for an independent mechanism that makes it possible to identify, as being of very high concern, substances which had not already been designated as such under that provision (judgments of 15 March 2017, Polynt v ECHA, C‑323/15 P, EU:C:2017:207, paragraph 25 and of 15 March 2017, Hitachi Chemical Europe and Polynt v ECHA, C‑324/15 P, EU:C:2017:208, paragraph 25). As the Court of Justice stated in paragraph 29 of each of those judgments, the scope of Article 57(f) expressly encompasses endocrine disruptors, even though that type of effect does not fall within any hazard class listed in that annex.
61


In the absence of a harmonised definition, the REACH Regulation authorises the ECHA to continue to manage an integrated system for monitoring chemical substances, including registration, evaluation and authorisation, together with possible restrictions on their use (judgment of 15 March 2017, Hitachi Chemical Europe and Polynt v ECHA, C‑324/15 P, EU:C:2017:208, paragraph 20) which must include, for the sake of effectiveness and efficiency, endocrine disruptors.
69


It thus noted, in paragraphs 135 and 137 of the judgment under appeal, that it followed from the case-law of the Court of Justice that the principle of legal certainty required, particularly, that rules of law be clear, precise and foreseeable in their effects, in particular where they may have adverse effects on individuals and undertakings and that, as regards the principle of the protection of legitimate expectations, the Court of Justice held that a person may not plead a breach of that principle unless the administration has given him precise assurances (see, to that effect, judgment of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 46 and the case-law cited).
70


Accordingly, any trader to whom an institution has given justified hopes may rely on the principle of the protection of legitimate expectations. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such hopes (judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraphs 24 and 25 and the case-law cited).
71


By contrast, if a prudent and alert economic operator can foresee the adoption of an EU measure likely to affect his interests, he cannot plead the principle of protection of legitimate expectations if that measure is adopted (judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 26).
87


However, it is settled case-law of the Court of Justice that, if the grounds of a decision of the General Court contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and a substitution of grounds must be made (judgment of 26 January 2017, Mamoli Robinetteria v Commission, C‑619/13 P, EU:C:2017:50, paragraph 107 and the case-law cited).
93


It follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (judgment of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 34).
94


Moreover, it is settled case-law that elements of the appeal that contain no argument specifically identifying the error of law allegedly vitiating the judgment under appeal do not fulfil that requirement and must be rejected as manifestly inadmissible (order of 24 November 2016, Petraitis v Commission, C‑137/16 P, not published, EU:C:2016:904, paragraph 17).