1 By its appeal, Nouryon Performance Formulations BV seeks to have set aside the judgment of the General Court of the European Union of 29 March 2023, Nouryon Industrial Chemicals and Others v Commission (T‑868/19, ‘the judgment under appeal’, EU:T:2023:168), by which the General Court dismissed the action brought by Nouryon Industrial Chemicals BV, Knoell NL BV, Grillo-Werke AG and PCC Trade & Services GmbH seeking the annulment of Commission Implementing Decision C(2019) 7336 final of 16 October 2019 on the compliance check of a registration of dimethyl ether (‘the decision at issue’), adopted on referral by the European Chemicals Agency (ECHA), on the basis of Article 51(7) 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, and corrigendum OJ 2007 L 136, p. 3), as amended by Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 (OJ 2008 L 353, p. 1) (‘the REACH Regulation’).
2 Article 3 of the REACH Regulation, entitled ‘Definitions’, provides: ‘For the purposes of this Regulation: … …’
3 According to Article 5 of the REACH Regulation, entitled ‘No data, no market’: ‘Subject to Articles 6, 7, 21 and 23, substances on their own, in mixtures or in articles shall not be manufactured in the Community or placed on the market unless they have been registered in accordance with the relevant provisions of this Title where this is required.’
4 Article 22 of that regulation, entitled ‘Further duties of registrants’, provides, in paragraph 1 thereof: ‘Following registration, a registrant shall be responsible on his own initiative for updating his registration without undue delay with relevant new information and submitting it to [ECHA] in the following cases: …’
5 Article 41 of the REACH Regulation, entitled ‘Compliance check of registrations’, provides: ‘1. [ECHA] may examine any registration in order to verify any of the following: … 3. On the basis of an examination made pursuant to paragraph 1, [ECHA] may, within 12 months of the start of the compliance check, prepare a draft decision requiring the registrant(s) to submit any information needed to bring the registration(s) into compliance with the relevant information requirements and specifying adequate time limits for the submission of further information. Such a decision shall be taken in accordance with the procedure laid down in Articles 50 and 51. 4. The registrant shall submit the information required to [ECHA] by the deadline set. …’
6 According to Article 51 of that regulation, entitled ‘Adoption of decisions under dossier evaluation’: ‘1. [ECHA] shall notify its draft decision in accordance with Articles 40 or 41, together with the comments of the registrant, to the competent authorities of the Member States. … 4. If [ECHA] receives a proposal for amendment, it may modify the draft decision. [ECHA] shall refer a draft decision, together with any amendments proposed, to the Member State Committee within 15 days of the end of the 30-day period referred to in paragraph 2. … 6. If, within 60 days of the referral, the Member State Committee reaches a unanimous agreement on the draft decision, [ECHA] shall take the decision accordingly. 7. If the Member State Committee fails to reach unanimous agreement, the [European] Commission shall prepare a draft decision to be taken in accordance with the procedure referred to in Article 133(3). …’
7 Article 5 of Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ 2008 L 107, p. 6), entitled ‘Fees for updates of a registration under Article 22 of Regulation (EC) No 1907/2006’, provides, in paragraph 1 thereof: ‘[ECHA] shall levy a fee, as provided for in paragraphs 2, 3 and 4 of this Article, for updates of a registration under Article 22 of Regulation (EC) No 1907/2006. However, [ECHA] shall not levy a fee for the following updates of a registration: … …’
8 The background to the dispute and the content of the decision at issue are described in paragraphs 2 to 15 of the judgment under appeal. They can be summarised as follows.
9 Dimethyl ether is a chemical substance.
10 The applicants at first instance were manufacturers or importers of dimethyl ether established in the European Union or exclusive representatives acting on behalf of manufacturers of that chemical substance established outside the European Union. In accordance with the principle of ‘no data, no market’ laid down in Article 5 of the REACH Regulation, the applicants, together with other registrants, on 30 November 2010, filed with ECHA an application for registration of dimethyl ether for manufactured or imported quantities of 1 000 tonnes or more per year per manufacturer or importer. Akzo Nobel Industrial Chemicals BV, which was subsequently renamed Nouryon Industrial Chemicals and which was the first applicant at first instance, acted as the lead registrant for the joint registration dossier, in accordance with Article 11 of the REACH Regulation.
11 On 29 March 2016, ECHA initiated a procedure for a compliance check of the registration on the basis of Article 41 of the REACH Regulation.
12 On 26 April 2016, pursuant to Article 41(3) of that regulation, ECHA sent to the applicants at first instance a draft decision requesting that they supplement the registration dossier for dimethyl ether with information relating to the results of two studies. This concerned, first, a pre-natal developmental toxicity study carried out on rabbits, representing a second animal study species, and, second, an extended toxicity study. A revised version of that draft was sent to the Member State Committee, pursuant to Article 51(4) of the REACH Regulation. Since that committee failed to reach a unanimous agreement on the revised draft decision, ECHA sent that draft decision, together with the dossier, to the Commission for the latter to adopt a final decision, in accordance with Article 51(7) of the REACH Regulation.
13 In Article 1 of the decision at issue, the Commission concluded that the registration of dimethyl ether did not comply with the information requirements as regards two different effects relating to reproductive toxicity, namely effects on pre-natal development and effects on reproduction. Consequently, in Article 2 of that decision, the Commission required the applicants at first instance to submit information on the effects of dimethyl ether, based, in the first place, on a pre-natal developmental toxicity study, as referred to in Section 8.7.2 of Annex X to the REACH Regulation. Under Article 3 of that decision, the Commission required the applicants at first instance, in the second place, to carry out an extended one-generation reproductive toxicity study as referred to in Section 8.7.3 of Annex X to that regulation, to be conducted in rats via the inhalation route. In Article 4 of the decision at issue, the Commission required the applicants at first instance to submit, within 36 months of the date of notification of that decision, an updated version of the registration of dimethyl ether to ECHA, together with the results of the requested studies and, where relevant, to submit an update of the chemical safety report.
14 By application lodged at the Registry of the General Court on 20 December 2019, the applicants at first instance brought an action for annulment of the decision at issue.
15 In support of their action, the applicants at first instance put forward nine pleas in law.
16 The General Court rejected all the pleas put forward in support of that action and, consequently, dismissed the action in its entirety.
17 By its appeal, Nouryon Performance Formulations claims that the Court should: - set aside the judgment under appeal and annul the decision at issue; - in the alternative, refer the case back to the General Court; and - order the Commission to pay the costs of the proceedings before the Court of Justice and before the General Court, including the costs relating to the interventions.
18 The Commission contends that the Court of Justice should dismiss the appeal and order Nouryon Performance Formulations to pay the costs.
19 The Kingdom of the Netherlands contends that the Court should dismiss the appeal and order Nouryon Performance Formulations to pay the costs.
20 ECHA contends that the Court should dismiss the appeal and order Nouryon Performance Formulations to pay the costs or should reserve the costs in the event that the case is referred back to the General Court.
21 By decision of 1 March 2024, taken pursuant to Article 175 of the Rules of Procedure of the Court of Justice, the President of the Court allowed Nouryon Performance Formulations to lodge a reply.
22 Nouryon Performance Formulations lodged a reply on 11 April 2024. ECHA and the Commission each lodged a rejoinder on 22 May 2024.
23 By order of 29 April 2024, Cruelty Free Europe was granted leave to intervene in support of the form of order sought by Nouryon Performance Formulations. Since Cruelty Free Europe lodged its application to intervene after the expiry of the time limit prescribed in Article 190(2) of the Rules of Procedure, but before the decision to open the oral part of the procedure, it was, however, permitted to submit its observations only during the hearing, in accordance with Article 129(4) of those rules.
24 By letter sent to the Court of Justice on 7 June 2023, Nouryon Performance Formulations stated, in essence, that, although it did not take part in the proceedings before the General Court, it had the requisite standing to bring the present appeal since it had succeeded Nouryon Industrial Chemicals.
25 Since it is for the Court of Justice to examine of its own motion any question relating to the admissibility of an appeal (judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraph 30), the Court, by letter of 27 November 2023, on the basis of a measure of organisation of procedure, invited the other parties to the proceedings to state their position, in their responses, on the question whether, in view of the circumstances set out in that letter, it was now incumbent on Nouryon Performance Formulations to comply with the obligations imposed under the decision at issue. The Court stated that that question was put for the purpose of determining the admissibility of the appeal in the light of Article 56 of the Statute of the Court of Justice of the European Union.
26 In its letter of 7 June 2023, Nouryon Performance Formulations states that, in 2021, in the context of a restructuring within the group to which it belongs, it took over the dimethyl ether activities of Nouryon Industrial Chemicals and that it became the holder of the registration relating to that chemical substance, which is the subject of the decision at issue and the judgment under appeal. It maintains that the registration in question was also updated at ECHA with respect to the identity of the registrant. Nouryon Performance Formulations concludes that letter by asserting that it should therefore be considered to be the ‘legal successor of Nouryon Industrial Chemicals … in matters pertaining to [dimethyl ether], including in so far as [concerns] the registration of the substance under the [REACH Regulation]’. It submits that the appeal is therefore admissible, despite the fact that Nouryon Performance Formulations was not itself a party to the proceedings before the General Court. It is also apparent from that letter that Nouryon Industrial Chemicals, the initial registrant and an applicant at first instance, retains its existence in law.
27 By letter of 8 January 2024, lodged pursuant to Article 172 of the Rules of Procedure, Knoell NL and Grillo-Werke, the second and third applicants at first instance, stated that they supported the arguments put forward by Nouryon Performance Formulations and that they did not wish to make further observations.
28 In its response, ECHA contends that Nouryon Performance Formulations, following the update of the registration, became the registrant for dimethyl ether on 20 May 2021. ECHA considers that, since that date, Nouryon Performance Formulations has been subject to the obligations arising from the decision at issue. ECHA states that the General Court was not informed, during the proceedings before that court, of the change in the registrant’s identity.
29 In its response, the Commission states that it ‘takes note’ of Nouryon Performance Formulations’ letter of 7 June 2023 and, as to the remainder, refers to ECHA’s response.
30 Lastly, in its response, the Kingdom of the Netherlands states, inter alia, that it does not dispute Nouryon Performance Formulations’ competence to bring the present appeal.
31 It must be observed at the outset that the appeal has not been brought by one of the applicants at first instance, but by Nouryon Performance Formulations, which, although it has a legal personality distinct from that of Nouryon Industrial Chemicals, claims to have the standing required for that purpose as the ‘legal successor’ of Nouryon Industrial Chemicals, which was one of those applicants.
32 Under the second paragraph of Article 56 of the Statute of the Court of Justice, an appeal may be brought only by the parties and interveners in the proceedings before the General Court, as well as by Member States and institutions of the European Union. The purpose of circumscribing the category of persons capable of bringing an appeal before the Court of Justice in a given case is to safeguard the proper administration of justice, not least by ensuring a degree of foreseeability in the appeals which can be brought against decisions of the General Court and by avoiding the circumvention of time limits and conditions of admissibility which apply to other legal remedies provided for by EU law (see, to that effect, judgment of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, EU:C:2015:642, paragraph 30).
33 It follows that a party that did not take part in the proceedings before the General Court does not have standing to bring an appeal against the final decision in those proceedings, unless there are special circumstances conferring such standing on that party (see, to that effect, judgment of 6 May 2021, Bayer CropScience and Bayer v Commission, C‑499/18 P, EU:C:2021:367, paragraph 43).
34 In the present case, in its letter of 7 June 2023, Nouryon Performance Formulations submits that that standing stems from the fact that, in 2021, it took over the dimethyl ether activities of Nouryon Industrial Chemicals, with the latter retaining a separate legal personality.
35 However, such a transfer of activities - which does not correspond, inter alia, to a transfer of all the assets and liabilities of Nouryon Industrial Chemicals to Nouryon Performance Formulations, together with a cessation of the former’s existence - is not sufficient to give rise also to a transfer of the procedural rights of Nouryon Industrial Chemicals, as a party at first instance, to Nouryon Performance Formulations. The latter undertaking has therefore not established that, although it did not take part in the proceedings before the General Court, it is in a special situation in the present case entitling it to bring an appeal under Article 56 of the Statute of the Court of Justice of the European Union.
36 In that regard, the Court cannot accept the argument that the fact that Nouryon Performance Formulations carried out an update of the registration relating to dimethyl ether under Article 22(1)(a) of the REACH Regulation, following which it replaced Nouryon Industrial Chemicals as the registrant for that substance, means that the former has to comply with the latter’s obligations arising from the decision at issue, with the result that it may also rely on the procedural rights which Nouryon Industrial Chemicals enjoyed with regard to that decision, such as the right to bring an appeal against the judgment under appeal.
37 It must be recalled that, according to the fourth paragraph of Article 288 TFEU, a decision such as the decision at issue is to be binding in its entirety, and a decision which specifies those to whom it is addressed is to be binding only on them. In addition, under the third subparagraph of Article 297(2) TFEU, decisions which specify to whom they are addressed are to be notified to those to whom they are addressed and are to take effect upon such notification. Consequently, the FEU Treaty precludes an individual decision which expressly specifies the person to whom it is addressed from imposing obligations on another person, unless the latter replaces the former as the addressee of that decision.
38 Furthermore, while it is true that Article 22(1)(a) of the REACH Regulation provides for the possibility of changing the identity of the registrant, subject, where appropriate, to the payment of a fee under Article 5(1)(c) of Regulation No 340/2008, the fact remains that, in any event, that provision does not provide that such replacement has the effect of transferring to the new registrant the initial registrant’s procedural rights arising from its status as an applicant before the General Court and, in particular, of conferring on that new registrant the right to bring an appeal against the final decision of the General Court in the proceedings resulting from the action brought by the initial registrant.
39 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
40 In the present case, since the Commission and ECHA have applied for Nouryon Performance Formulations to be ordered to pay the costs and the latter has been unsuccessful in its appeal, Nouryon Performance Formulations must be ordered to bear its own costs and to pay those incurred by the Commission and by ECHA.
41 Under Article 184(4) of the Rules of Procedure, the Court of Justice may decide that, where an intervener at first instance has participated in the written or oral part of the proceedings before the Court, that intervener is to bear its own costs. In accordance with that provision, Knoell NL and Grillo-Werke are to bear their own costs.
42 In accordance with Article 140(1) and (3), respectively, of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the Member States which have intervened in the proceedings are to bear their own costs and the Court may order an intervener other than those referred to in Article 140(1) and (2) of those rules to bear its own costs.
43 On the basis of those provisions, the Kingdom of the Netherlands and Cruelty Free Europe must be ordered to bear their own costs. 1. Dismisses the appeal; 2. Orders Nouryon Performance Formulations BV to bear its own costs and to pay those incurred by the European Commission and by the European Chemicals Agency (ECHA); 3. Orders Cruelty Free Europe (CFE), Knoell NL BV, Grillo-Werke AG and the Kingdom of the Netherlands to bear their own costs.