Action brought on 22 November 2013 – Marchi Industriale v ECA

(Case T-620/13)

Language of the case: Italian

Parties

Applicant: Marchi Industriale (Florence, Italy) (represented by: M. Baldassarri and F. Donati, lawyers)

Defendant: European Chemicals Agency (ECA)

Form of order sought

The applicant claims that the General Court should annul and thereby declare invalid Decision No SME/2013/3747 of the European Chemicals Agency, thus rendering inoperative each of the effects of that decision, including the annulment of the invoices issued for the recovery of higher taxes and penalties purportedly owing.

Pleas in law and main arguments

The present action is brought against the decision of the European Chemicals Agency that the applicant does not satisfy the requirements for being regarded as a small or medium-sized enterprise within the meaning of Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), 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), denying the applicant the benefits provided for in that regulation and providing that it is to pay the fees and charges allegedly owing.

The applicant relies on two pleas in law.

First plea in law, alleging total failure to state reasons, in so far as, notwithstanding the detailed documentary information provided to challenge the calculation criteria used to determine the size of the undertaking, the defendant failed to take any account the arguments put forward.

Second plea in law, alleging that data relating to the company Essemar SpA, in which Marchi Industriale has a holding, was incorrectly taken into account.

It is submitted in this regard that, contrary to what is claimed by the defendant, Esseco Group srl is not connected, even indirectly, with the applicant and cannot, in any event, be regarded as a ‘partner enterprise’. While Esseco Group has a 50.0005% holding in the share capital of Essemar, the remainder of the share capital in Essemar, amounting to 49.9995%, is held by the applicant. However, while, on a formal level, Esseco Group holds the majority of the share capital in Essemar, it does not have the majority of voting rights within that company. Therefore, there does not exist between Esseco Group and the applicant the special relationship referred to in Article 3(2) of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 2003 L 214, p. 36).