JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

25 September 2015 (*)

(REACH — Inclusion of chromium trioxide in the list of substances subject to authorisation — Uses or categories of uses exempted from the authorisation requirement — Concept of ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ — Manifest error of assessment — Proportionality — Rights of the defence — Principle of sound administration)

In Case T‑360/13,

Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV (VECCO), established in Memmingen (Germany), and the applicants whose names are listed in Annex I, represented by C. Mereu, K. Van Maldegem, lawyers, and J. Beck, Solicitor,

applicants,

supported by:

Assogalvanica, established in Padua (Italy), and the other interveners whose names are listed in Annex II, represented by C. Mereu, K. Van Maldegem and J. Beck,

interveners,

v

European Commission, represented by K. Talabér-Ritz and J. Tomkin, acting as Agents,

defendant,

supported by

European Chemicals Agency (ECHA), represented by W. Broere, M. Heikkilä and T. Zbihlej, acting as Agents,

intervener,

APPLICATION for partial annulment of Commission Regulation (EU) No 348/2013 of 17 April 2013 amending Annex XIV 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 2013 L 108, p. 1),

THE GENERAL COURT (Fifth Chamber),

composed of A. Dittrich (Rapporteur), President, J. Schwarcz and V. Tomljenović, Judges,

Registrar: C. Heeren, Administrator,

having regard to the written procedure and further to the hearing on 12 February 2015,

gives the following

Judgment

 Background to the dispute

1        The first applicant, Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV (VECCO), is an association governed by German law which represents downstream users of chromium trioxide.

2        The 185 applicants whose names are listed in Annex I may be classified in three groups. The first group comprises those applicants which use chromium trioxide in aqueous solution for surface treatment. The second group comprises those applicants which are involved in the supply of mixtures containing chromium trioxide designed for the coating of surfaces. The third group comprises industrial customers which use chrome surface coatings for their own primary products, in particular in their capacity as suppliers or manufacturers of mechanical parts, machines and other products.

3        In August 2010, the Federal Republic of Germany sent the European Chemicals Agency (ECHA) a dossier (‘the Annex XV dossier’, also referred to by the parties as ‘the Annex XV Report’) drawn up for the purposes of identifying chromium trioxide as a substance of very high concern in accordance with the procedure provided for in Article 59 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). In that dossier, the Federal Republic of Germany proposed that chromium trioxide be identified as a substance of very high concern on the ground that it had been classified as carcinogenic category 1 and mutagenic category 2 in Annex VI 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 No 1907/2006 (OJ 2008 L 353, p. 1), and on the ground that, on that basis, that substance satisfied the criteria of Article 57(a) and (b) of Regulation No 1907/2006. The Annex XV dossier refers to, inter alia, two reports, namely a risk assessment report prepared by the United Kingdom in 2005 (European Union Risk Assessment Report, 3rd Priority List, Volume 53), and a report prepared by the Institute for Occupational Safety and Health of the German Social Accident Insurance, entitled ‘MEGA — Auswertungen zur Erstellung von REACH-Expositionsszenarien für Chrom (VI)-Verbindungen (2000 bis 2009) in Deutschland’ (MEGA assessment report for the identification of REACH-exposure scenarios concerning the risks arising from exposure to chromium (VI) compounds (2000 to 2009) in Germany) (‘the MEGA Report’).

4        In accordance with Article 59(4) of Regulation No 1907/2006, the Annex XV dossier was published on 30 August 2010, with a deadline for submitting comments, which expired on 14 October 2010. Once comments had been submitted, the dossier was sent to the ECHA Member State Committee in accordance with Article 59(7) of that regulation. That committee accepted the Federal Republic of Germany’s proposal. Subsequently, and in accordance with Article 59(8) of Regulation No 1907/2006, by decision of 14 December 2010 ECHA included chromium trioxide in the list of substances for eventual inclusion in Annex XIV to that regulation (‘the candidate list’), an updated version of which was published on ECHA’s website on 15 December 2010.

5        In accordance with Article 58(4) of Regulation No 1907/2006, ECHA published on 15 June 2011 a draft recommendation of substances to be included in Annex XIV to that regulation, which includes the list of substances subject to authorisation, and invited interested parties to submit comments by 14 September 2011. In its comments submitted for the attention of ECHA during that public consultation, the first applicant proposed that provision be made for an exemption within the meaning of Article 58(1)(e), in conjunction with Article 58(2), of Regulation No 1907/2006 for the use of chromium trioxide as an active catalyst substance. The comments submitted by the interested parties, including in particular the first applicant, were subsequently published.

6        On 19 December 2011, the ECHA Member State Committee adopted its opinion on the draft recommendation mentioned in paragraph 5 above.

7        On 20 December 2011, ECHA submitted its recommendation for the inclusion of substances in Annex XIV to Regulation No 1907/2006. In that recommendation, ECHA proposed not to grant an exemption for any of the uses of chromium trioxide.

8        In accordance with Article 131 and the procedure set out in Article 133(4) of Regulation No 1907/2006, on 17 April 2013 the Commission adopted Regulation (EU) No 348/2013 amending Annex XIV to Regulation (EC) No 1907/2006 (OJ 2013 L 108, p. 1; ‘the contested measure’).

9        By the contested measure, chromium trioxide was included in Annex XIV to Regulation No 1907/2006. No exemption under Article 58(2) of that regulation was granted for certain uses of chromium trioxide.

 Procedure and forms of order sought

10      By application lodged at the Court Registry on 8 July 2013, the applicants brought the present action.

11      By letter registered at the Court Registry on 18 October 2013, Assogalvanica and 93 other natural and legal persons applied for leave to intervene in support of the form of order sought by the applicants. After the parties had been heard, leave was granted, by order of 4 March 2014 in VECCO and Others v Commission (T‑360/13, EU:T:2014:130), to Assogalvanica and the other interveners whose names are listed in Annex II. The applications of the other applicants for leave to intervene were dismissed.

12      By letter registered at the Court Registry on 21 October 2013, ECHA applied for leave to intervene in support of the form of order sought by the Commission. After hearing the parties, that leave was granted by order of 22 November 2013.

13      On 22 January 2014, ECHA lodged its statement in intervention.

14      On 11 March 2014, the applicants lodged their observations on ECHA’s statement in intervention.

15      On 24 April 2014, Assogalvanica and the other interveners whose names are listed in Annex II lodged their statement in intervention. On 18 June 2014, the applicants and the Commission lodged their observations on that statement.

16      In the application, the applicants claim that the Court should:

–        declare the action admissible and well founded;

–        declare that the contested measure is partially unlawful in that it is based on a manifest error of assessment and infringes Article 58(2) of Regulation No 1907/2006, the principle of proportionality and the rights of the defence (including the principles of sound administration and excellence of scientific advice);

–        partially annul the contested measure in so far as it does not contain in its annex at row 16, fifth column, under the title ‘Exempted categories of use’, the following exemption: ‘use of chromium trioxide for production purposes in aqueous solution, thereby complying with an exposure value of maximum 5 µg/m³ (or 0.005 mg/m³)’ or similar language aimed at exempting the ‘use of chromium trioxide in electroplating, etching processes, electropolishing and other surface treatment processes and technologies as well as mixing’, or words to that effect, from the scope of the contested measure;

–        order the Commission to amend the contested measure so as to comply with the Court’s judgment;

–        order the Commission to pay the costs.

17      At the hearing, the applicants withdrew their second and fourth heads of claim.

18      The Commission and ECHA contend that the Court should:

–        declare the action unfounded;

–        order the applicants and Assogalvanica and the other interveners whose names are listed in Annex II to pay the costs.

19      Assogalvanica and the other interveners whose names are listed in Annex II contend that the Court should:

–        declare that the contested measure is partially unlawful in that it is based on a manifest error of assessment and infringes Article 58(2) of Regulation No 1907/2006, the principle of proportionality and the rights of the defence (including the principles of sound administration and excellence of scientific advice);

–        partially annul the contested measure in so far as it does not contain in its annex at row 16, fifth column, under the title ‘Exempted categories of use’, the following exemption: ‘use of chromium trioxide for production purposes in aqueous solution, thereby complying with an exposure value of maximum 5 μg/m3 (or 0.005 mg/m3)’ or any similar language aimed at exempting the ‘use of chromium trioxide in electroplating, etching processes, electropolishing and other surface treatment processes and technologies as well as mixing’ or any other words such as to exempt the use of chromium trioxide in the plating industry from the scope of the contested measure;

–        order the Commission to amend the contested measure so as to comply with the Court’s judgment;

–        order the Commission to pay the costs.

20      By letter lodged at the Court Registry on 8 September 2015, the applicants requested the reopening of the oral part of the procedure, submitting a new scientific analysis concerning the data contained in the MEGA Report. In the alternative, the applicants request that that expert evidence be placed on the case-file and that the parties be requested, by way of a measure of organisation of procedure, to set out their views on the impact of that evidence on the outcome of the case.

 Law

 Admissibility of the first and third heads of claim of Assogalvanica and of the other interveners whose names are listed in Annex II

21      According to the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 thereof, an application to intervene is limited to supporting the form of order sought by one of the parties. Consequently, an intervener may not go beyond the form of order sought by the party in support of which it is intervening (judgment of 10 May 2001 in Kaufring and Others v Commission, T‑186/97, T‑187/97, T‑190/97 to T‑192/97, T‑210/97, T‑211/97, T‑216/97 to T‑218/97, T‑279/97, T‑280/97, T‑293/97 and T‑147/99, ECR, EU:T:2001:133, paragraph 137).

22      In the present case, the applicants have withdrawn their second and fourth heads of claim. The first and third heads of claim of Assogalvanica and of the other interveners whose names are listed in Annex II are therefore no longer formulated in support of the form of order sought by the applicants and must consequently be rejected as inadmissible.

 Substance

23      In support of the action, the applicants rely on four pleas in law alleging, first, manifest errors of assessment; secondly, infringement of Article 58(2) of Regulation No 1907/2006; thirdly, infringement of the principle of proportionality; and, fourthly, infringement of rights of the defence and of the principles of sound administration and ‘excellence of scientific advice’.

24      It is appropriate to begin by examining the second plea.

 The second plea in law, alleging infringement of Article 58(2) of Regulation No 1907/2006

25      The applicants submit that the Commission infringed Article 58(2) of Regulation No 1907/2006 in not exempting the use of chromium trioxide at issue from the authorisation requirement. In their view, the risk stemming from that use is properly controlled. They claim that specific Community legislation does exist which imposes minimum measures that must be taken by employers to control the risks arising from the use of chromium trioxide, in particular Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work (fourteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1998 L 131, p. 11) and Directive 2004/37/EC of the European Parliament and of the Council of 29 April 2004 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (sixth individual Directive within the meaning of Article 16(1) of Council Directive 89/391/EEC) (OJ 2004 L 158, p. 50). Those directives are ‘specific’ even in respect of substances which they do not expressly mention, to the extent to which those substances fall within one of the categories of substances referred to in those directives. The fact that those directives do not include occupational exposure limit values for chromium trioxide does not, they submit, preclude them from being sufficiently ‘specific’ and from laying down ‘minimum requirements’ within the meaning of Article 58(2) of Regulation No 1907/2006. Requiring exposure limit values is tantamount to laying down maximum requirements, which would go beyond the scope of Article 58(2) of Regulation No 1907/2006, which refers only to minimum requirements. In its communication on the results of the risk evaluation and the risk reduction strategies for the substances: chromium trioxide, ammonium dichromate, potassium dichromate (OJ 2008 C 152, p. 1), the Commission also took the view that the risk reduction measures already being applied were sufficient. In a ‘Roadmap on Substances of Very High Concern’, published by the Commission in February 2013, the Commission acknowledged that risks may be managed even ‘outside’ Regulation No 1907/2006. In addition, the applicants submit, no specific cancer risk is caused by the electroplating industry, due to the effectiveness of the risk reduction measures adopted by employers. Furthermore, chromium trioxide users are subject to other legal provisions aimed at protecting health and the environment, such as 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), Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17), and provisions in a number of national laws. The risks related to the uses of chromium trioxide at issue are also adequately controlled by means of a whole series of national rules and adequate control may also be achieved through the voluntary application of occupational exposure limit values. Lastly, under Article 58(2) of Regulation No 1907/2006, they contend, the obligation to assess the possibility for exemption and the related burden of proof lie with the Commission and not with economic operators.

26      Assogalvanica and the other interveners whose names are listed in Annex II concur in essence with the applicants’ arguments, while submitting that the Commission and ECHA ought to have investigated seriously and in detail the effectiveness of the measures already in place, which is clear from the word ‘properly’ in Article 58(2) of Regulation No 1907/2006 and also from the objective set out in Article 55 of that regulation, namely that the Commission and ECHA must take account of the good functioning of the EU market. Article 58(2) of that regulation, indeed, lays down minimum requirements only, with the result that it is contrary to the principle of subsidiarity for the Commission to impose stricter requirements unilaterally. The assessment under that provision required a more in-depth analysis not only of the relevant EU legislation but also of the underlying legislation, its practical implementation and the factual data collected in that context to assess whether the minimum requirements properly control the risks.

27      The Commission, supported by ECHA, opposes those arguments.

28      First of all, it must be observed that, by Regulation No 1907/2006, the legislature set up a system for the registration, evaluation and authorisation of chemicals and restrictions applicable to those substances, in order, inter alia, according to recital 1 of the preamble to that regulation, to ensure a high level of protection of human health and the environment as well as the free movement of substances in the internal market, while enhancing competitiveness and innovation. In particular, Regulation No 1907/2006 provides, in its Title VII, for an authorisation procedure. The objective of that procedure, according to Article 55 of that regulation, is to ensure the good functioning of the internal market while assuring that the risks from substances of very high concern are properly controlled and that those substances are progressively replaced by suitable alternative substances or technologies where these are economically and technically viable. The authorisation procedure can apply to all substances meeting the criteria set out in Article 57 of Regulation No 1907/2006.

29      The first phase of the authorisation procedure consists in the examination by ECHA of whether a substance meets the criteria in Article 57 of Regulation No 1907/2006 on the basis, in particular, of a dossier meeting the requirements of Annex XV to the regulation. That dossier is prepared either by ECHA, at the Commission’s request, or by a Member State. At the end of that first phase, ECHA identifies that substance as meeting the criteria and includes it on the candidate list.

30      The second phase of the authorisation procedure concerns the inclusion in Annex XIV to Regulation No 1907/2006 of a substance on the candidate list, in accordance with Article 58 of that regulation. Once that substance has been included in that annex and the conditions for its prohibition as laid down in Article 56 of that regulation are met, it can no longer be used or placed on the market unless, in the context of the third phase of the authorisation procedure, an authorisation for a specific use has been granted under Article 60 of that regulation. The decision to include that substance in Annex XIV is adopted by the Commission on the basis of a recommendation prepared by ECHA which takes into account the prior opinion of its Member State Committee and comments — in particular concerning uses which should be exempted from the authorisation requirement under Article 58(2) of Regulation No 1907/2006 — supplied by the interested parties in the context of a public consultation provided for in the second subparagraph of Article 58(4) of that regulation.

31      The decision to include a substance referred to in Article 57 of Regulation No 1907/2006 in Annex XIV thereto must, in accordance with Article 58(1)(e) of that regulation, state in particular the uses or categories of uses exempted from the authorisation requirement, if any, and the conditions for such exemptions, if any. The granting of those exemptions is governed by Article 58(2) of that regulation, according to which uses or categories of uses may be exempted from the authorisation requirement provided that, on the basis of the existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance, the risk is properly controlled.

32      Since the applicants submit, in essence, that the conditions laid down in Article 58(2) of Regulation No 1907/2006 were met and that the Commission was required to grant an exemption under that provision, it is necessary to examine, first of all, whether there was in the present case ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of [chromium trioxide]’. If that is the case, it will then be necessary to examine whether ‘on the basis of [that] specific Community legislation … the risk [was] properly controlled’. Lastly, if those conditions are met, it will be necessary to examine whether the Commission, which ‘may’ grant an exemption and therefore has discretion in that regard, erred when exercising its discretion.

33      It must first of all be noted that ‘Community legislation’ within the meaning of Article 58(2) of Regulation No 1907/2006 is a rule of law adopted by a European Union entity intended to produce binding effects. It follows, as the applicants, moreover, acknowledged at the hearing, that rules belonging to several national legal systems and also to voluntary practices cannot meet the first condition laid down in Article 58(2) of Regulation No 1907/2006, inasmuch as they do not constitute ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’. Consequently, there is no need to examine either the national rules relied upon by the applicants or the voluntary practices to which they have referred.

34      As regards the Commission communication mentioned in paragraph 25 above to which the applicants refer, the Court points out that it includes information relating to risk evaluation and risk reduction strategies for, inter alia, chromium trioxide. By contrast, the content of the communication is not binding and the communication does not clarify any other provision, but merely sets out the results of the evaluation, inter alia of the risks stemming from the uses of chromium trioxide; it also merely states that the Commission has adopted its recommendation of 30 May 2008 on risk reduction measures for the substances chromium trioxide, ammonium dichromate and potassium dichromate (OJ 2008 L 158, p. 65), to which that communication refers. In the absence of any legally binding character, that communication cannot, as the applicants indeed acknowledged at the hearing, be regarded as ‘Community legislation’ within the meaning of Article 58(2) of Regulation No 1907/2006.

35      It need therefore be examined only whether the directives relied on by the applicants, namely Directives 98/24, 2004/37, 2010/75 and 2012/18, constitute ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ within the meaning of Article 58(2) of Regulation No 1907/2006.

36      In the first place, the applicants, together with Assogalvanica and the other interveners whose names are listed in Annex II, rely on two directives in the context of the protection of workers at work, namely Directives 98/24 and 2004/37.

37      As regards Directive 98/24, the applicants, together with Assogalvanica and the other interveners whose names are listed in Annex II, refer in particular to Articles 1, 4(1) and (2), 5(2), 6(2) and (3), 8 and 10 of that directive. Pursuant to Article 1 thereof, the objective of Directive 98/24 is to lay down ‘minimum requirements for the protection of workers from risks to their safety and health arising, or likely to arise, from the effects of chemical agents that are present at the workplace or as a result of any work activity involving chemical agents’. Directive 98/24 provides principally for measures to be adopted by employers with a view to avoiding or reducing risks stemming from the exposure of workers to the substances referred to. Those measures include obligations concerning the assessment of the risks to which workers are exposed at the workplace (Article 4), the replacement of hazardous substances by less hazardous ones (Article 6), the reduction in the amount of such substances (Article 6), individual protection (Article 6), continuous health surveillance of the workers concerned (Article 10) and, lastly, information concerning workers and the competent authorities (Article 9(3)). The directive at issue therefore lays down a range of measures. Above all, the exposure of a worker to the hazardous substance must be avoided, preferably through replacing the hazardous substance by a less hazardous one and, if that is not possible, by implementing a closed production system. If none of those measures is possible, the exposure of workers must be reduced as much as possible by collective protective measures such improved ventilation systems and working methods. Lastly, if those measures are not sufficient in order to avoid the exposure of workers, the employer must, in the third place, provide for individual protection measures such as the provision of adequate protective equipment.

38      Directive 98/24 applies generally to all chemical agents and is general in scope. Its objective is to lay down, in particular, obligations to be complied with by employers, who must guarantee an adequate level of safety for workers at the workplace. However, it must be noted that the directive lays down binding occupational exposure limit values for the substances included in Annex I thereto, which at present includes only inorganic lead and its compounds. For other substances, Article 3(2) of that directive provides for the future setting of ‘indicative occupational exposure limit values … at Community level’, that ‘[t]hese limit values shall be established or revised, taking into account the availability of measurement techniques, in accordance with the procedure laid down in Article 17 of Directive 89/391/EEC’ and that ‘Member States shall keep workers’ and employers’ organisations informed of indicative occupational exposure limit values set at Community level’. Under Article 3(3) of Directive 98/24, ‘[f]or any chemical agent for which an indicative occupational exposure limit value is established at Community level, Member States shall establish a national occupational exposure limit value, taking into account the Community limit value, determining its nature in accordance with national legislation and practice’. Under Article 3(4) of that directive, ‘[b]inding occupational exposure limit values may be drawn up at Community level and, in addition to the factors considered when establishing indicative occupational exposure limit values, shall reflect feasibility factors while maintaining the aim of ensuring the health of workers at work’.

39      As regards the relationship between Directive 98/24 and Regulation No 1907/2006, the latter states, in recital 5 in its preamble, that that regulation ‘should apply without prejudice to Community workplace and environment legislation’ and, in recital 12 in its preamble, that it is does ‘not affect the application of Directives on worker protection and the environment, especially Directive [2004/37] and [Directive 98/24], under which employers are required to eliminate dangerous substances, wherever technically possible, or to substitute dangerous substances with less dangerous substances’. Article 2(4)(a) of Regulation No 1907/2006 provides that that regulation is to apply ‘without prejudice to … Community workplace and environmental legislation, including … Directive 89/391/EEC …, Directive 96/61/EC …, Directive [98/24], Directive 2000/60/EC… and Directive [2004/37]’.

40      In the light of the foregoing, it must be acknowledged that, in so far as Directive 98/24 does not refer to a particular substance, as is the case of the substances mentioned included in Annex I to that directive, it cannot be considered specific, since it is applicable generally to all chemical substances, nor can it be considered to impose minimum requirements, because it lays down only a general framework for the duties imposed on employers who expose their employees to risks from the uses of chemical substances. The general nature of Directive 98/24 is evidenced clearly by the fact that the legislature considered, in Article 3 of that directive, that the setting of limit values was an integral part of the mechanism for protecting workers and that those values still needed to be set for the substances for which no such values exist. Contrary to the assertions of Assogalvanica and the other interveners whose names are listed in Annex II, the Commission cannot be criticised on the ground that it infringed Article 58(2) of Regulation No 1907/2006 by requiring occupational exposure limit values, because the requirement for such values is clear from the application of Article 3 of Directive 98/24. The Commission did not therefore add, of its own accord, specific requirements but was, by contrast, fully entitled to take the view that, in the absence of limit values, the directive at issue did not constitute ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ within the meaning of Article 58(2) of Regulation No 1907/2006.

41      Lastly, if the approach advocated by the applicants, according to which Directive 98/24 must be considered to be specific legislation regardless of whether it imposes occupational exposure limit values, were to be followed, all chemical agents would have to be regarded as being governed by ‘specific Community legislation imposing minimum requirements’. In such a situation, granting the exemption laid down in Article 58(2) of Regulation No 1907/2006 could virtually always be envisaged, despite the fact that that provision constitutes a strict exception to the principle confirmed by Article 57 of that regulation, in conjunction with recital 69 in the preamble thereto, according to which substances of very high concern must, as a rule, be included in Annex XIV to Regulation No 1907/2006 and be subject to the authorisation procedure laid down in Article 60 of that regulation. It follows that the approach advocated by the applicants would be liable seriously to jeopardise the purpose and functioning established by that regulation and cannot therefore be accepted.

42      As regards Directive 2004/37, the applicants, together with Assogalvanica and the other interveners whose names are listed in Annex II, rely in particular on Articles 1, 3(1), 4, 5(1), (3) and (5), 6 and 14 of that directive. Directive 2004/37 has as its aim, according to Article 1 thereof, ‘the protection of workers against risks to their health and safety, including the prevention of such risks, arising or likely to arise from exposure to carcinogens or mutagens at work’. It lays down ‘particular minimum requirements in this area, including limit values’. Consequently, like Directive 98/24, Directive 2004/37 lays down a range of measures which include, in particular, obligations concerning the assessment of the risks to which workers are exposed at the workplace (Article 3(2) to (4)), the replacement of dangerous substances by less dangerous ones (Article 4), the reduction in the amount of such substances (Article 5), individual protection (Articles 8 and 10), continuous health surveillance of the workers concerned (Article 14) and, lastly, information concerning workers and the competent authorities (Articles 11, 12 and 19).

43      Directive 2004/37 applies to all carcinogens or mutagens. However, it lays down binding limit values for occupational exposure for benzene, vinyl chloride monomer and hardwood dusts (Annex III). Article 16(1) of that directive provides that ‘[t]he Council shall, in accordance with the procedure laid down in Article 137(2) of the Treaty [now Article 153(2) TFEU], set out limit values in Directives on the basis of the available information, including scientific and technical data, in respect of all those carcinogens or mutagens for which this is possible, and, where necessary, other directly related provisions’. Recital 13 in the preamble states in this regard that ‘[o]ccupational exposure limit values must be regarded as an important component of the general arrangements for the protection of workers’ and that ‘[s]uch limit values must be revised whenever this becomes necessary in the light of more recent scientific data’.

44      As has been mentioned with regard to Directive 98/24, Regulation No 1907/2006 has no effect on the application of the directives relating to worker protection, including Directive 2004/37, to which the same reasoning as that set out in paragraph 40 above applies. In so far as the latter directive does not refer to any substance other than benzene, vinyl chloride monomer or hardwood dusts, for which it lays down maximum values for occupational exposure, it cannot be considered either ‘specific’ or to impose minimum requirements. In addition, as for Directive 98/24, the legislature indicated clearly in Article 16 of Directive 2004/37 that the setting of limit values was an integral part of the mechanism for protecting workers and that those values still needed to be set for the substances for which no such values existed. Lastly, having regard to Article 57(a) and (b) of Regulation No 1907/2006, which includes carcinogens and mutagens in the authorisation mechanism governed by Title VII of that regulation, the purpose and functioning of the system of monitoring and protection provided for by that regulation could be seriously jeopardised if the view were to be taken that Directive 2004/37 is existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance, within the meaning of Article 58(2) of that regulation, for any carcinogen or mutagen. The reasoning set out in paragraph 41 above is also applicable to Directive 2004/37.

45      It must therefore be concluded that, as regards chromium trioxide, neither Directive 98/24 nor Directive 2004/37 constitutes ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ within the meaning of Article 58(2) of Regulation No 1907/2006.

46      That conclusion is not called into question by the other arguments of the applicants and of Assogalvanica and the other interveners whose names are listed in Annex II.

47      First of all, the applicants submit that, by requiring occupational exposure limit values, in the context of the application of Article 58(2) of Regulation No 1907/2006, the Commission in fact sought not to impose minimum requirements, but maximum requirements. In that regard, the Court notes that the criterion based on ‘minimum requirements’ cannot be regarded as meaning any measure provided for by an EU legislative act. The concept of minimum requirement must be understood as meaning that, first, it constitutes a minimum standard in the interest of workers or other persons concerned and, secondly, it allows the adoption or imposition of even stricter measures at national level in the context of legislation that is more stringent than the EU legislation imposing the minimum requirement. The mere fact of requiring occupational exposure limit values does not therefore imply the application of a maximum requirement, but constitutes a minimum requirement possible within the meaning of Article 58(2) of Regulation No 1907/2006.

48      The applicants submit, in addition, that, in order for legislation to be ‘specific’ within the meaning of Article 58(2) of Regulation No 1907/2006, it is sufficient if it refers to a category of substances, and in particular to the classification criteria. The first applicant cites a document of ECHA entitled ‘Preparation of draft Annex XIV entries for the third recommendation of substances to be included in Annex XIV — General Approach’, from which, it claims, it is clear that the fact that a substance belongs to categories such as ‘carcinogens’ or ‘mutagens’ suffices for a finding that legislation relating to one of those categories is specific.

49      That argument cannot be accepted.

50      First, the document cited by the applicants is simply a communication from ECHA informing the interested parties of the approach followed by it for the purposes of the assessment, in particular, of the conditions laid down in Article 58(2) of Regulation No 1907/2006. That document has no legal value and is not relevant to the interpretation of that article by the EU Courts.

51      Secondly, it cannot be inferred from the wording of the second indent of point 5.1 of the document cited by the applicants that any classification criterion will be sufficient in order for legislation on a category of substances coming within that criterion to be regarded as specific.

52      First of all, it must be observed that the second indent of point 5.1 of the document cited by the applicants refers to the proper control of risks. It is therefore questionable whether ECHA intended by that indent to clarify the criteria which, in its view, enable legislation to be considered specific.

53      In addition, in the document cited by the applicants, ECHA states that ‘generally, the legislation in question should specifically refer to the substance to be included in Annex XIV [to Regulation No 1907/2006] either by naming the substance or by referring to the group the substance belongs to, e.g. by referring to the classification criteria or the Annex XIII [to that regulation] criteria’. Even if ECHA intended to clarify the criteria which, in its view, enable legislation to be considered specific, it can only be inferred from the passage at issue that, above all, the substance must be referred to as such by the legislation and that, if that is not the case, a category of substances could also be considered the subject of specific legislation if that legislation none the less referred to a category that is clearly distinct from other substances. The specific nature of legislation referring to a category of substances must therefore be comparable to the specific nature of legislation which refers to one substance only. It follows that a mere reference to carcinogenic, mutagenic or chemical substances is too general.

54      In the second place, the applicants rely on two directives concerning environmental protection, namely Directives 2010/75 and 2012/18, without stating, however, to what extent those directives constitute ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ within the meaning of Article 58(2) of Regulation No 1907/2006. In support of their arguments, they refer simply to Annex A.22 to the application, which, without stating either the author or source of a report entitled ‘Environmental Risk Reduction Strategy and Analysis of Advantages and Drawbacks for Hexavalent Chromium’, reproduces section 4 of that report and is over 40 pages long. In the applicants’ view, Directive 2010/75 and a document called ‘BREF’ (a guidance note on what constitutes best available techniques for the surface treatment of metals and plastics, dated August 2006) ensure the use of best available techniques, that is to say, the most effective, advanced and practically suitable methods of operation designed to prevent or reduce emissions and their impact on the environment.

55      First, it must be held that that argument is inadmissible, in so far as the applicants argue that Directives 2010/75 and 2012/18 constitute ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ within the meaning of Article 58(2) of Regulation No 1907/2006, since it is not for the Court to do the applicants’ work and to try to locate and identify, in the extensive Annex A.22 to the application to which they make general reference, the information which it may consider supports their arguments (see, to that effect, order of 29 November 1993 in Koelman v Commission, T‑56/92, ECR, EU:T:1993:105, paragraph 23). In so far as that argument relates only to the control of risks, it is also inadmissible, because simply making general reference to an annex without specifying the relevant passages or paragraphs fails further to explain why the risk must be considered to have been brought under control. So far as the document called ‘BREF’ is concerned, the same reasoning applies. In addition, it must be found that that document has not been made available to the Court, which is therefore unable to examine it.

56      Secondly, even if the applicants’ argument concerning Directive 2012/18 were admissible, that directive could not in any way be regarded as ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ within the meaning of Article 58(2) of Regulation No 1907/2006, notwithstanding the fact that that directive is applicable to chromium trioxide pursuant to Part I of Annex I thereto, in conjunction with index No 024-001-00-0 of Table 3.1 of Annex VI to Regulation No 1272/2008.

57      It is apparent from Article 1 of Directive 2012/18 that the purpose of that directive is to lay down rules for the prevention of ‘major accidents’ which involve dangerous substances, and the limitation of their consequences for human health and the environment, with a view to ensuring a high level of protection throughout the European Union in a consistent and effective manner. Article 5(1) of Directive 2012/18 lays down general obligations for economic operators, which must take all necessary measures to prevent major accidents and to limit their consequences for human health and the environment. Point (b) of Annex III to that directive specifies the issues to be addressed by the safety management system which economic operators are required to implement at their installations pursuant to Article 8 of the directive, which include the training of personnel and raising their awareness, the identification and evaluation of major hazards, control of industrial installations, management of modifications to installations, processes or storage facilities, planning for emergencies, continuous monitoring of performances, reporting of accidents and periodic audit and review.

58      Annex I to Directive 2012/18 lays down, in addition, qualifying quantities for the presence of a dangerous substance in an undertaking (in tonnes) in order thereby to define the scope of the directive. Thus, Directive 2012/18 does not apply to undertakings in which dangerous substances are present in quantities below those set out in column 2 of Part 1 or 2 of Annex I to that directive. On the other hand, Directive 2012/18 is directed at undertakings which come within its scope as ‘lower-tier establishments’ within the meaning of Article 3(2) of that directive or as an ‘upper-tier establishment’ within the meaning of Article 3(3). Annex I to Directive 2012/18 therefore lays down neither occupational exposure limit values nor emission limit values for an undertaking.

59      The aim of Directive 2012/18 is consequently to ensure the safety of installations in order to avoid ‘major’ accidents. It is directed at neither the specific uses of dangerous substances in the context of normal industrial activities of an undertaking as such, nor the protection of humans against too high an exposure to dangerous substances at their workplace. Directive 2012/18 cannot therefore be regarded as ‘existing specific Community legislation imposing minimum requirements’ within the meaning of Article 58(2) of Regulation No 1907/2006.

60      Thirdly, even if the applicants’ arguments relating to Directive 2010/75 were admissible, it must be pointed out that that directive cannot be regarded as ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ within the meaning of Article 58(2) of Regulation No 1907/2006.

61      According to Article 1 thereof, Directive 2010/75 contains ‘rules on integrated prevention and control of pollution arising from industrial activities’. It also lays down rules designed to prevent or, where that is not practicable, to reduce emissions into air, water and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole. Article 2 states that Directive 2010/75 is to apply to the industrial activities giving rise to pollution referred to in Chapters II to VI. That directive is not to apply to research activities, development activities or the testing of new products and processes. Under Annex I thereto, Directive 2010/75 is to apply to, inter alia, the activity of ‘[s]urface treatment of metals or plastic materials using an electrolytic or chemical process where the volume of the treatment vats exceeds 30m³’. Article 14(1)(a) of that directive requires the Member States to adopt all measures necessary for compliance with the requirements of Articles 11 and 18, and in particular to set emission limit values for the polluting substances listed in Annex II, and for other polluting substances, which are likely to be emitted from the installation concerned in significant quantities, having regard to their nature and their potential to transfer pollution from one medium to another. That annex lists a series of substances, including substances and mixtures which have been proved to possess carcinogenic or mutagenic properties or properties which may affect reproduction via the air or in the aquatic environment or via the air or water.

62      Although Directive 2010/75 may undoubtedly apply, in a general manner, to industrial emissions from uses of chromium trioxide, it must, none the less, be found that that directive does not include any specific provision relating to that substance. It applies only to the surface treatment of metals or plastic materials using an electrolytic or chemical process where the volume of the treatment vats exceeds 30 m³. It refers therefore to a specific industrial process that exceeds a certain, high-volume threshold, not to a specific substance in that process, and does not apply to all types of that process, in particular processes which do not exceed the threshold indicated.

63      It follows from all of the foregoing that the applicants, together with Assogalvanica and the other interveners whose names are listed in Annex II, have failed to prove, with regard to chromium trioxide, that there is ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ within the meaning of Article 58(2) of Regulation No 1907/2006.

64      With regard to the second condition laid down by Article 58(2) of Regulation No 1907/2006, namely a risk that is properly controlled on the basis of the existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance, it must be noted that, as set out in paragraph 31 above, an exemption may be granted only if all the conditions laid down in that provision are met. In the case where there is no existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance, there is no need to examine that second condition. In addition, it must be noted that, as regards the expression ‘compte tenu’ in the French-language version of that provision and the expressions used in other language versions of that provision, such as the German-language expression ‘auf der Grundlage’ and the English-language expression ‘on the basis of’, the control of the risk must be based on that existing specific Community legislation. However, if no such legislation exists, it is impossible for any control of the risk, even if proved, to stem from such legislation, which in itself constitutes sufficient grounds for finding that the second condition has not been met in the present case. The applicants’ arguments that, in fact, the risks stemming from the various uses of chromium trioxide are, on other grounds, virtually non-existent, if not negligible or controlled, fail to establish a link between the alleged control of the risks and existing specific Community legislation, and are consequently ineffective.

65      Since not all of the conditions laid down by Article 58(2) of Regulation No 1907/2006 were met, the Commission did not have any discretion in the present case with regard to the granting of an exemption under that article. The Court points out, however, that if the conditions set out in paragraph 31 above had been met, the Commission’s discretion would not have been unlimited and would not have entitled it to adopt arbitrary measures. None the less, even in that situation, the arguments of the applicants and of Assogalvanica and the other interveners whose names are listed in Annex II could not have succeeded, since the evidence adduced does not support the view that the Commission’s discretion was so reduced that it was required to grant the exemption sought.

66      In the light of all of the foregoing, it must be concluded that the Commission did not infringe Article 58(2) of Regulation No 1907/2006 in not granting the exemption sought by the applicants. The second plea in law, alleging infringement of that article, must therefore be rejected.

 The first plea in law, alleging manifest errors of assessment

67      The applicants dispute, in essence, the scientific basis of the contested measure, their principal argument being that the Commission did not examine adequately whether the risks stemming from the various uses of the chrome-plating industry were controlled.

68      Since the second plea in law must be rejected on the ground that the first condition laid down in Article 58(2) of Regulation No 1907/2006 was not satisfied, it is not necessary, as set out in paragraph 63 above, to examine whether or not the risks stemming from the various uses of the chrome-plating industry are controlled.

69      Consequently, it must be found that, even if manifest errors of assessment were indeed made by the Commission before the contested measure was adopted, the General Court cannot grant the applicants’ head of claim seeking partial annulment of the contested measure inasmuch as the latter does not provide for the granting of the exemption sought by the applicants.

70      Accordingly, the first plea in law cannot succeed and must therefore be rejected as unfounded.

 The third plea in law, alleging infringement of the principle of proportionality

71      The applicants, supported by Assogalvanica and the other interveners whose names are listed in Annex II, submit that, in the circumstances of the present case, it was disproportionate to adopt the de facto ban on all uses of chromium trioxide introduced by the contested measure. Account, they submit, must in particular be taken of the fact that that substance is essentially used in the chrome-plating industry as an intermediate substance within the meaning of Article 3.15 of Regulation No 1907/2006.

72      The Commission, supported by ECHA, disputes those arguments.

73      In the light of what has been stated in the context of the second plea in law, it must be found that, since the Commission did not enjoy any discretion in the present case as regards the granting of an exemption under Article 58(2) of Regulation No 1907/2006, because not all of the conditions laid down in that article were met, it also could not have infringed the principle of proportionality in applying that article in the manner required by it. Since the Commission was therefore obliged to take the decision not to grant an exemption, it could not, by dint of that fact, have infringed the principle of proportionality.

74      The argument raised by the applicants could therefore succeed — as the Commission correctly notes — only if it were directed at the lawfulness of Article 58(2) of Regulation No 1907/2006 as such. However, as the applicants stated at the hearing, they do not raise a plea of illegality against that article.

75      With regard to the argument raised by Assogalvanica and the other interveners whose names are listed in Annex II to the effect that chromium trioxide, as an intermediate substance within the meaning of Article 3.15 of Regulation No 1907/2006, must not be made subject to the authorisation requirement within the meaning of Title VII of Regulation No 1907/2006, it must be held that, in so far as those interveners intend by that argument to plead that Title VII of the regulation does not apply pursuant to Article 2(8) of that regulation, that plea is such as to change the subject-matter of the proceedings, as it was defined by the main parties, and is therefore inadmissible (see, to that effect, judgment of 28 July 2011 in Diputación Foral de Vizcaya and Others v Commission, C‑474/09 P to C‑476/09 P, EU:C:2011:522, paragraph 111). In any event, that argument is also unfounded because those interveners adduce no evidence to show that chromium trioxide could be regarded as an intermediate substance within the meaning of Article 3.15 of that regulation. They request the Court itself, however, to assess ‘whether — indeed — the transformation of chromium trioxide into chromium metal during the chrome-plating process qualifies for the exemption under Article 2(8) [of Regulation No 1907/2006] or, in the alternative, the one available under Article 58(2) [of that regulation], such that the flat inclusion of chromium trioxide into Annex XIV without exemptions is unlawful’. It is not, however, for the Court to obtain evidence which has not been furnished by the parties themselves.

76      Since, as the applicants stated at the hearing, that argument is directed only at the question as to whether the decision taken by the Commission not to grant an exemption within the meaning of Article 58(2) of Regulation No 1907/2006 was disproportionate, it is ineffective on the grounds set out in paragraph 73 above.

77      In conclusion, the third plea in law must therefore be rejected.

 The fourth plea in law, alleging infringement of the rights of the defence and of the principles of sound administration and ‘excellence of scientific advice’

78      The applicants raise two heads of complaint. They allege, in the first head of complaint, infringement of their rights of defence, arguing in particular that, since they did not have access to the data in the MEGA Report, they were unable fully to substantiate their application for exemption from the authorisation requirement. In the second head of complaint, the applicants plead an infringement of the principles of sound administration and of ‘excellence of scientific advice’, on the ground, in particular, that neither the Commission nor ECHA was in possession of the MEGA Report, with the result that they were unable to examine all of the available data, and that the data provided by the first applicant in the public consultation had not been given adequate consideration.

79      The Commission, supported by ECHA, takes issue with those arguments.

–       The first head of complaint, alleging infringement of the rights of the defence

80      As regards the first head of complaint, it must be pointed out that Title VII of Regulation No 1907/2006 does not provide any right to request an exemption and that it is only in the context of Article 58(4) of that regulation that the applicants were asked to provide, as interested parties, ‘comments …, in particular on uses which should be exempt from the authorisation requirement’.

81      As it is, the public consultation provided for by Article 58(4) of Regulation No 1907/2006 does not grant the interested parties specific procedural rights, such as the right of access to documents made available to ECHA or the Commission in the context of the procedure for including substances in Annex XIV to that regulation. Article 58(4) provides only for the right to submit comments. However, the applicants have not argued that their right to submit comments in the context of the public consultation referred to above was not respected by ECHA or the Commission. Consequently, the applicants’ arguments that their rights of defence have been infringed cannot succeed.

82      That conclusion is not called into question by the case-law relied on by the applicants. Admittedly, paragraph 130 of the judgment of 9 September 2008 in Bayer CropScience and Others v Commission (T‑75/06, ECR, EU:T:2008:317) refers in particular to the respect for the rights of the defence ‘in all proceedings initiated against a person’. In the present case, however, the procedure relating to the inclusion of chromium trioxide in Annex XIV to Regulation No 1907/2006 cannot be regarded as ‘proceedings initiated against’ the applicants. In addition, the fact that Article 58 of that regulation provides for a public consultation does not call into question the fact that neither ECHA nor the Commission is required, under that article, to hear an individual who might be concerned by the disputed measure (see, to that effect and by analogy, order of 12 December 2003 in Bactria v Commission, C‑258/02 P, ECR, EU:C:2003:675, paragraph 43). Lastly, in so far as the applicants mention Article 2 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), it must be held that that regulation cannot alter the scope of Article 58(4) of Regulation No 1907/2006 and cannot therefore create procedural rights not provided for by that regulation. The applicants have not, moreover, argued that Regulation No 1049/2001 has been infringed.

83      In those circumstances, the Commission was under no obligation to grant, solely for the purposes of the public consultation, access to documents examined during the earlier procedure, including the MEGA Report. The question as to whether the Commission was in possession of that report and whether it was in a position to grant access to that document is therefore irrelevant. Consequently, the first head of complaint must be rejected.

–       The second head of complaint, alleging failure to have regard to the principles of sound administration and ‘excellence of scientific advice’

84      As regards the second head of complaint, it must be found, first of all, that the Commission did not infringe Article 58(2) of Regulation No 1907/2006. In addition, as is apparent from the examination of the first head of complaint of the fourth plea in law, the Commission and ECHA did not infringe the applicants’ procedural rights. Lastly, in the context of taking the decision concerning the granting of an exemption, it was also open to the Commission and ECHA not to carry out an assessment of whether risks stemming from certain uses of chromium trioxide had been brought under control.

85      In those circumstances, it must be found that, even if, as the applicants submit, the scientific assessment by ECHA and the Commission was carried out inadequately, such errors would have been made at earlier stages of the procedure, in particular when the Annex XV dossier was being prepared, and could not invalidate the decision not to grant an exemption under Article 58(2) of Regulation No 1907/2006. That decision was, like ECHA’s recommendation, based solely on the absence of ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ within the meaning of Article 58(2) of that regulation, and not on the control of risks. Consequently, possible errors as to the scientific analysis of the control of risk during the earlier phases of the procedure, in particular when the dossier at issue was being prepared, could not have had any bearing on the lawfulness of that decision.

86      In the light of all of the foregoing, the action must be dismissed.

 The application for reopening of the oral part of the procedure

87      In the light of the foregoing, it was also not appropriate to accede to the application for the oral part of the procedure to be reopened.

88      As follows from Article 113(2)(c) of the Rules of Procedure and from the case-law, the Court is required to accede to an application that the oral procedure be reopened for the purpose of taking into account new facts alleged only if the party concerned bases itself on facts which may have a decisive influence on the outcome of the case and which it was unable to put forward before the close of the oral procedure (see, to that effect, the judgment of 27 September 2006 in Roquette Frères v Commission, T‑322/01, ECR, EU:T:2006:267, paragraph 323).

89      In the present case, however, the new facts presented by the applicants concern exclusively the data in the MEGA Report and the issue of whether manifest errors of assessment were made by the Commission and ECHA in their scientific analysis of risk management during the stages of the procedure prior to that which concerned the decision on the granting of an exemption under Article 58(2) of Regulation No 1907/2006.

90      As has been held in paragraphs 68 and 69 above, even if manifest errors of assessment were indeed made by the Commission before the contested measure was adopted, the Court cannot grant the applicants’ head of claim seeking partial annulment of the contested measure inasmuch as the latter does not provide for the granting of the exemption sought by the applicants.

91      Consequently, the new facts submitted by the applicants are not such as to have a decisive influence on the outcome of the case.

92      For the same reason, it is also not necessary to hear the views of the parties on the impact which the expert evidence might have on the outcome of the case.

 Costs

93      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In accordance with Article 138(1) of those rules, the institutions which have intervened in the proceedings are to bear their own costs. Under Article 138(3) of the Rules of Procedure, the General Court may order an intervener other than those referred to in paragraphs 1 and 2 of Article 138 to bear its own costs.

94      As the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter.

95      The interveners and ECHA must bear their own costs.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV (VECCO) and the applicants whose names are listed in Annex I to bear their own costs and to pay those incurred by the European Commission;

3.      Orders Assogalvanica and the other interveners whose names are listed in Annex II to bear their own costs;

4.      Orders the European Chemicals Agency (ECHA) to bear its own costs.

Dittrich Schwarcz Tomljenović

Delivered in open court in Luxembourg on 25 September 2015.

[Signatures]

ANNEX I

Adolf Krämer GmbH & Co. KG, established in Ulm (Germany),

AgO Argentum GmbH Oberflächenveredelung, established in Nuremberg (Germany),

Alfred Kruse GmbH Metallveredelungen, established in Langenfeld (Germany),

AL-Oberflächenveredelungsgesellschaft m.b.H, established in Wuppertal (Germany),

Anke GmbH & Co. KG Oberflächentechnik, established in Essen (Germany),

ATC Armoloy Technology Coatings GmbH & Co. KG, established in Mosbach (Germany),

August Schröder GmbH & Co. KG Oberflächenveredelung, established in Hemer (Germany),

August Sure KG, established in Lüdenscheid (Germany),

Baaske Oberflächenveredelung GmbH, established in Wuppertal (Germany),

Hartchrom-Beck GmbH, established in Güglingen (Germany),

Bredt GmbH, established in Meschede (Germany),

Breidert Galvanic GmbH, established in Darmstadt (Germany),

Chrom-Müller Metallveredelung GmbH, established in Oberndorf a. N. (Germany),

Chrom-Schmitt GmbH & Co. KG, established in Baden-Baden (Germany),

C. Hübner GmbH, established in Marktoberdorf (Germany),

C.W. Albert GmbH & Co. KG, established in Hemer-Bredenbruch (Germany),

Detlef Bingen Gesellschaft mit beschränkter Haftung, established in Langenfeld (Germany),

Dittes Oberflächentechnik GmbH, established in Keltern (Germany),

Duralloy Süd GmbH, established in Villingen-Schwenningen (Germany),

Durochrom-Bogatzki, established in Oberndorf a. N. (Germany),

Metallveredelung Emil Weiß GmbH & Co. KG, established in Mitwitz (Germany),

Ewald Siodla Metallveredelungsgesellschaft mbH, established in Witten (Germany),

Flügel CSS GmbH & Co. KG, established in Solingen (Germany),

Fritz Zehnle Galvanische Anstalt, Inh. Gerd Joos e.K., established in Triberg (Germany),

Galvanoform Gesellschaft für Galvanoplastik mbH, established in Lahr (Germany),

Galvano Herbert Geske e.K., established in Solingen (Germany),

Galvanotechnik Friedrich Holst GmbH, established in Hamburg (Germany),

Galvano Weis, Weis GmbH & Co., Galvanische Werkstätte KG, established in Emmering (Germany),

gebr. böge Metallveredelungs GmbH, established in Hamburg (Germany),

Hans Giesbert GmbH & Co. KG, established in Mömbris (Germany),

Groz-Beckert KG, established in Albstadt (Germany),

GTW GmbH, established in Werl (Germany),

GWC Coating GmbH, established in Villingen-Schwenningen (Germany),

Hartchrom Beuthel GmbH, established in Schwelm (Germany),

Hartchrom Erb GmbH, established in Weiterstadt (Germany),

Hartchrom GmbH, established in Karlsruhe (Germany),

Hartchrom GmbH Werner Kreuz, established in Blumberg (Germany),

Hartchrom Schoch GmbH, established in Sternenfels (Germany),

Hartchrom Teikuro Automotive GmbH, established in Sternenfels (Germany),

Heine Optotechnik GmbH & Co. KG, established in Herrsching (Germany),

Heinrich Schnarr GmbH Metallveredlungswerk, established in Mainaschaff (Germany),

Heinrich Schulte Söhne GmbH & Co. KG, established in Arnsberg (Germany),

Heinz Daurer und Söhne GmbH & Co. KG Metall-Veredelung-Lampertheim, established in Lampertheim (Germany),

Helmut Gossmann Metallveredelungs-GmbH, established in Goldbach (Germany),

Henry Gevekoth GmbH, established in Hamburg (Germany),

Heyer GmbH Oberflächentechnik, established in Lübeck (Germany),

HFJ Galvano Kiel GmbH, established in Kiel (Germany),

Hueck Engraving GmbH & Co. KG, established in Viersen (Germany),

Imhof Hartchrom GmbH, established in Karlstadt (Germany),

Johannes Jander GmbH & Co. KG Metalloberflächenveredelung, established in Iserlohn (Germany),

Johann Maffei GmbH & Co. KG, established in Iserlohn-Simmern (Germany),

Kesseböhmer Beschlagsysteme GmbH & Co. KG, established in Bad Essen (Germany),

Knipex-Werk C. Gustav Putsch KG, established in Wuppertal (Germany),

Kreft & Röhrig Gesellschaft mit beschränkter Haftung, established in Troisdorf-Friedrich-Wilhelms Hütte (Germany),

Kriebel Metallveredelung GmbH, established in Kirschfurt (Germany),

LKS Kronenberger GmbH Metallveredlungswerk, established in Seligenstadt (Germany),

Kunststofftechnik Bernt GmbH, established in Kaufbeuren (Germany),

L B — Oberflächentechnik GmbH, established in Wuppertal (Germany),

Linder Metallveredelungsgesellschaft mit beschränkter Haftung, established in Albstadt (Germany),

Metallisierwerk Peter Schreiber GmbH, established in Düsseldorf (Germany),

Montanhydraulik GmbH, established in Holzwickeden (Germany),

Morex SpA, established in Crespano del Grappa (Italy),

Motoren-Sauer Instandsetzungs-GmbH, established in Hösbach (Germany),

MSC/Copperflow Ltd, established in Bolton, Greater Manchester (United Kingdom),

Neumeister Hydraulik GmbH, established in Neuenstadt am Kocher (Germany),

Nießer Metallveredelung GmbH, established in Röthenbach a. d. Pegnitz (Germany),

Norddeutsche Hartchrom GmbH & Co. KG, established in Ganderkesee (Germany),

Oberflächenzentrum Elz GmbH, established in Limburg (Germany),

OK Oberflächenveredelung GmbH & Co. KG, established in Sundern (Germany),

OTH Oberflächentechnik Hagen GmbH & Co. KG, established in Hagen (Germany),

OT Oberflächentechnik GmbH & Co. KG, established in Schwerin (Germany),

Präzisionsgalvanik GmbH Wolfen, established in Bitterfeld-Wolfen (Germany),

Rahrbach GmbH, established in Heiligenhaus (Germany),

Rudolf Clauss GmbH & Co. KG Metallveredlung, established in Mülheim a. d. Ruhr (Germany),

Rudolf Jatzke Galvanik-Hartchrom Günter Holthöfer GmbH & Co. KG, established in Bielefeld (Germany),

Schaeffler Technologies AG & Co. KG, established in Herzogenaurach (Germany),

Scherer GmbH, established in Haslach im Kinzigtal (Germany),

Schmitz Hydraulikzylinder GmbH, established in Büttelborn (Germany),

Schnarr Metallveredlung GmbH, established in Waiblingen (Germany),

Schornberg Galvanik GmbH, established in Lippstadt (Germany),

Robert Schrubstock GmbH & Co. KG, established in Velbert (Germany),

Schulte Hartchrom GmbH, established in Arnsberg (Germany),

Schwing GmbH, established in Sankt Stefan im Lavanttal (Austria),

Silit-Werke GmbH & Co. KG, established in Riedlingen (Germany),

Steinbach & Vollmann GmbH & Co. KG, established in Heiligenhaus (Germany),

Strötzel Oberflächentechnik GmbH & Co. KG, established in Hildesheim (Germany),

Süss Oberflächentechnik GmbH, established in Wetzlar (Germany),

Thoma Metallveredelung GmbH, established in Heimertingen (Germany),

Viemetall Viersener Metallveredlung Pottel GmbH & Co. KG, established in Viersen (Germany),

Walzen-Service-Center GmbH, established in Oberhausen (Germany),

Wavec GmbH, established in Eisenhüttenstadt (Germany),

Wilhelm Bauer GmbH & Co. KG, established in Hanover (Germany),

Willy Remscheid Galvanische Anstalt GmbH, established in Solingen (Germany),

Willy Remscheid Kunststofftechnik GmbH, established in Velbert (Germany),

Wiotec, Inhaber Udo Wilmes e.K., established in Ense (Germany),

Wissing Hartchrom GmbH, established in Lohmar (Germany),

alfi GmbH Isoliergefäße, Metall- und Haushaltswaren, established in Wertheim (Germany),

BIA Kunststoff- und Galvanotechnik GmbH & Co. KG, established in Solingen (Germany),

Siegfried Boner e.K., established in Villingen-Schwenningen (Germany),

Bruchmühlbacher Galvanotechnik (BG) GmbH, established in Bruchmühlbach-Miesau (Germany),

C + C Krug GmbH, established in Velbert (Germany),

Collini GmbH, established in Aperg (Germany),

Collini Gesellschaft m.b.H, established in Hohenems (Austria),

Collini GmbH, established in Marchtrenk (Austria),

Collini Wien GmbH, established in Vienna (Austria),

Federal-Mogul TP Europe GmbH & Co KG, established in Burscheid (Germany),

Fischer GmbH & Co. surface technologies KG, established in Katzenelnbogen (Germany),

Friederici Oberflächenveredlung GmbH, established in Iserlohn (Germany),

Galvano Wittenstein GmbH, established in Solingen (Germany),

Gedore-Werkzeugfabrik GmbH & Co. KG, established in Remscheid (Germany),

Gerhardi Kunststofftechnik GmbH, established in Lüdenscheid (Germany),

Gosma — Werkzeugfabrik und Metallveredelung Weber GmbH, established in Gosheim (Germany),

Hartchrom-Meuter Ernst Meuter GmbH & Co. KG, established in Solingen (Germany),

Hartchrom Spezialbeschichtung Winter GmbH, established in Treuen (Germany),

Hasler AG, Aluminiumveredlung, established in Turgi (Switzerland),

Hartchrom Haslinger Oberflächentechnik GmbH, established in Linz (Austria),

Hentschel Harteloxal GmbH & Co. KG, established in Schorndorf (Germany),

Kammin Metallveredelung KG, established in Friesenheim (Germany),

Karl-Heinz Bauer GmbH Galvanische Anstalt, established in Ispringen (Germany),

Maschinenfabrik KBA-Mödling AG, established in Maria Enzersdorf (Austria),

Albert Kißling Galvanische Werke GmbH, established in Neusäß (Germany),

KME Germany GmbH & Co. KG, established in Osnabrück (Germany),

Lahner KG, established in Brunn am Gebirge (Austria),

Liebherr-Aerospace Lindenberg GmbH, established in Lindenberg (Germany),

MTU Aero Engines AG, established in Munich (Germany),

MTU Maintenance Hannover GmbH, established in Langenhagen (Germany),

Münze Österreich AG, established in Vienna (Austria),

Nehlsen-BWB Flugzeug-Galvanik Dresden GmbH & Co. KG, established in Dresden (Germany),

Orbis Will GmbH + Co. KG, established in Ahaus (Germany),

Riag Oberflächentechnik AG, established in Wängi (Switzerland),

Franz Rieger Metallveredlung, established in Steinheim am Albuch (Germany),

Saxonia Galvanik GmbH, established in Halsbrücke (Germany),

Schweizer Galvanotechnic GmbH & Co. KG, established in Heilbronn (Germany),

G. Schwepper Beschlag GmbH + Co, established in Heiligenhaus (Germany),

R. Spitzke Oberflächen- und Galvanotechnik GmbH & Co. KG, established in Barsbüttel (Germany),

Stahl Judenburg GmbH, established in Judenburg (Austria),

VTK Veredelungstechnik Krieglach GmbH, established in Krieglach (Austria),

STI Surface Technologies International Holding AG, established in Steinach (Switzerland),

Witech GmbH, established in Remscheid (Germany),

Kurt Zecher GmbH, established in Paderborn (Germany),

De Martin AG, Metallveredelung, established in Wängi (Switzerland),

Hattler & Sohn GmbH, established in Villingen-Schwenningen (Germany),

Alfacrom 2000 Srl, established in Fiume Veneto (Italy),

F.LLI Angelini Sud Srl, established in Arzano (Italy),

Bertola Srl, established in Marene (Italy),

Bugli Srl, established in Scandicci (Italy),

Burello Srl, established in Pavia di Udine (Italy),

Galvanica CMB Di Bittante Franco EC — Snc, established in Scorzé (Italy),

Casprini Gruppo Industriale SpA, established in Cavrilia (Italy),

C.F.G. Rettifiche Srl, established in Argenta (Italy),

CIL — Cromatura e Rettifica Srl, established in Esine (Italy),

Cromatura Dura Srl, established in Lozza (Italy),

Cromital Srl, established in Parma (Italy),

Cromoflesch Di Bolletta Giuseppe & C. — Snc, established in Salzano (Italy),

Cromogalante Srl, established in Padua (Italy),

Cromotrevigiana Srl, established in Ponzano Veneto (Italy),

Elezinco Srl, established in Castelfidardo (Italy),

Galvanica Nobili Srl, established in Marano sul Panaro (Italy),

Galvanotecnica Vignati Srl, established in Canegrate (Italy),

Galvitek Srl, established in Verona (Italy),

Gilardoni Vittorio Srl, established in Mandello del Lario (Italy),

Industria Galvanica Dalla Torre Ermanno e Figli Srl, established in Villorba (Italy),

La Galvanica Trentina Srl, established in Rovereto (Italy),

Nicros Srl, established in Conegliano (Italy),

O.C.M. Di Liboà Mauro & C. — Snc, established in Mondovì (Italy),

Rubinetterie Zazzeri SpA, established in Incisa Valdarno (Italy),

Silga SpA, established in Castelfidarno (Italy),

Surcromo Di Suttora Marco, established in Pieve Emanuele (Italy),

Tobaldini SpA, established in Altavilla Vicentina (Italy),

Tre Albi SNC Di Trentin Silvano Bittante Mario & Albanese Giancarlo, established in Vedelago (Italy),

Adolf Boos GmbH & Co. KG, established in Iserlohn (Germany),

Henkel Beiz- und Elektropoliertechnik GmbH & Co. KG, established in Waidhofen an der Thaya (Austria),

Saueressig GmbH + Co. KG, established in Vreden (Germany),

Saueressig Polska sp. z o.o., established in Tarnowo Podgórne (Poland),

Wetzel GmbH, established in Grenzach-Wyhlen (Germany),

Wetzel sp. z o.o., established in Duchnów (Poland),

Apex Cylinders Ltd, established in Bristol (United Kingdom),

Federal-Mogul Burscheid GmbH, established in Burscheid (Germany),

Federal-Mogul Friedberg GmbH, established in Friedberg (Germany),

Federal-Mogul Vermögensverwaltungs-GmbH, established in Burscheid (Germany),

Federal-Mogul Operations France SAS, established in Saint-Jean-de-la-Ruelle (France),

Dietmar Schrick GmbH, established in Solingen (Germany),

Cromatura Dalla Torre Sergio Snc Di Dalla Torre Sergio EC, established in Breda di Tiave (Italy),

Hartchromwerk Brunner AG, established in Sankt Gallen (Switzerland),

Schulz Hartchrom GmbH, established in Hamburg (Germany).

ANNEX II

Ecometal, established in Treviso (Italy),

European Committee for Surface Treatment (CETS), established in Leuven (Belgium),

Österreichische Gesellschaft für Oberflächentechnik (AOT), established in Vienna (Austria),

Surface Engineering Association (SEA), established in Birmingham (United Kingdom),

Zentralverband Oberflächentechnik e.V. (ZVO), established in Hilden (Germany),

Eco-Chim Galvanotecnica di Antoniazzi G. & C. Snc, established in Codognè (Italy),

Heiche Oberflächentechnik GmbH, established in Schwaigern (Germany),

Schwäbische Härtetechnik Ulm GmbH & Co. KG, established in Ulm (Germany),

Trattamento superfici metalliche Srl (TSM), established in Schio (Italy),

Aros Hydraulik GmbH, established in Memmingen (Germany),

Berndorf Band GmbH, established in Berndorf (Austria),

Eberhard Derichs Maschinen- und Apparatebau GmbH, established in Krefeld (Germany),

Friedrich Fausel Metalldrückerei, established in Herrlingen (Germany),

Goldhofer AG, established in Memmingen (Germany),

Heidelberger Druckmaschinen AG, established in Heidelberg (Germany),

Huhtamaki Flexible Packaging Germany GmbH & Co. KG, established in Ronsberg (Germany),

ITW Automotive Products GmbH, established in Hodenhagen (Germany),

Josef Van Baal GmbH, established in Krefeld (Germany),

Kleinvoigtsberger Elektrobauelemente GmbH, established in Großschirma (Germany),

Kniggendorf & Kögler GmbH, established in Laatzen (Germany),

Liebherr-Components Kirchdorf GmbH, established in Kirchdorf (Germany),

Max Hilscher GmbH, established in Dornstadt (Germany),

Mora Metrology GmbH, established in Aschaffenburg (Germany),

Norsystec — Nohra-System-Technik — GmbH, established in Nohra (Germany),

Otto Littmann Maschinenfabrik — Präzisionsmechanik GmbH, established in Hamburg (Germany),

Provertha Connectors Cables & Solutions GmbH, established in Pforzheim (Germany),

Roland Merz, residing in Ober-Ramstadt (Germany),

Schwing-Stetter Baumaschinen GmbH, established in Vienna (Austria),

SML Maschinengesellschaft mbH, established in Lenzing (Austria),

ThyssenKrupp Steel Europe AG, established in Duisburg (Germany),

Windmöller & Hölscher KG, established in Lengerich (Germany).

* Language of the case: English.