ORDER OF THE PRESIDENT OF THE COURT
29 April 2024 (*)
(Appeal – Intervention – Animal protection organisation – Interest in the result of the case – Application submitted after the time limit laid down in Article 190(2) of the Rules of Procedure of the Court of Justice)
In Case C‑353/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 June 2023,
Nouryon Performance Formulations BV, formerly Nouryon Industrial Chemicals BV, established in Amsterdam (Netherlands), represented initially by R. Cana and R. Spangenberg, avocats, Z. Romata, Solicitor, and by H. Widemann, avocat, and subsequently by R. Cana, avocat, Z. Romata, Solicitor, and R. Spangenberg, avocat,
appellant,
the other parties to the proceedings being:
Knoell NL BV, established in Maarssen (Netherlands),
Grillo-Werke AG, established in Duisburg (Germany),
PCC Trade & Services GmbH, established in Duisburg,
applicants at first instance,
European Commission, represented by R. Lindenthal and K. Mifsud-Bonnici, acting as Agents,
defendant at first instance,
Kingdom of Denmark,
Kingdom of the Netherlands, represented by M. K. Bulterman and A. Hanje, acting as Agents,
Kingdom of Sweden,
European Chemicals Agency (ECHA), represented by W. Broere, M. Heikkilä and N. Herbatschek, acting as Agents,
interveners at first instance,
THE PRESIDENT OF THE COURT
having regard to the proposal from D. Gratsias, Judge-Rapporteur,
after hearing the Advocate General, J. Richard de la Tour,
makes the following
Order
1 By its appeal, Nouryon Performance Formulations BV, formerly Nouryon Industrial Chemicals 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, EU:T:2023:168), by which the General Court dismissed the action brought by Nouryon Industrial Chemicals, Knoell NL BV, Grillo-Werke AG and PCC Trade & Services GmbH for the annulment of Commission Implementing Decision C(2019) 7336 final of 16 October 2019 on the compliance check of a registration of dimethyl ether, adopted on referral by the European Chemicals Agency, on the basis of Article 51(7) of Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (‘the contested decision’).
2 On 18 December 2023, a notice relating to that appeal was published in the Official Journal of the European Union (OJ 2023 C 1429, p. 1), pursuant to Article 21(4) of the Rules of Procedure of the Court of Justice.
3 By document lodged at the Registry of the Court of Justice on 7 February 2024, Cruelty Free Europe (‘CFE’) applied, under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, for leave to intervene in the case in support of the form of order sought by Nouryon Performance Formulations.
4 The Kingdom of the Netherlands submitted its written observations on that application on 16 February 2024. Nouryon Performance Formulations, the European Commission and the European Chemicals Authority (ECHA) submitted their observations in that regard on 28 February 2024.
The application to intervene
Arguments of the parties
5 In support of its application to intervene, CFE submits, first of all, that it must be regarded as having an interest in the result of the case in so far as it is an environmental protection organisation in that its main objective is to combat animal testing in Europe. It also states that its members are associations whose activities it coordinates at European level. According to CFE, those associations are based in 17 EU Member States and are working to bring animal testing to an end. CFE adds that, since 11 September 2019, it is an ECHA-accredited stakeholder, which demonstrates that it carries out its activities at EU level and that it has expertise in its field of competence.
6 Next, CFE states that, by the contested decision, the Commission required the registrants, who had submitted an application for registration of dimethyl ether, to carry out a pre-natal developmental toxicity study in rabbits and an extended one-generation reproductive toxicity study on rats. Those studies would cause acute suffering to the animals involved; accordingly, CFE has an interest in ensuring that they are not carried out if they are not required by the relevant provisions.
7 Finally, CFE highlights two questions that the Court is called upon to examine in the context of the appeal, one concerning the conditions under which a study on a second animal species may be requested by ECHA or the Commission and the other concerning the principles governing the review of the legality of scientific assessments necessitating expertise in toxicology.
8 The Commission, supported in that regard by the Kingdom of the Netherlands and ECHA, states that CFE has not proved that it had an interest in the result of the case within the meaning of Article 40 of the Statute of the Court of Justice of the European Union. A broad organisational objective of reducing or even eliminating animal testing cannot justify such an interest, which should, on the contrary, relate to the specific subject matter of the case before the Court. That would be the case, according to the Commission, if CFE were actively involved in protection programmes or studies for the region and sector concerned, whose viability could be threatened by the adoption of the contested decision. However, that condition is not met in the present case, as CFE did not participate, moreover, in the preparation of the draft decision that led to the adoption of the contested decision.
Assessment of the President of the Court
9 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any natural or legal person may intervene in a case before one or other of the EU Courts, other than a case between Member States, between EU institutions or between Member States and EU institutions, if that person establishes an interest in the result of the case.
10 The concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined having regard to the precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The term ‘the result of a case’ refers to the final decision sought, as set out in the operative part of the future judgment (order of the President of the Court of 12 March 2019, Germany v Esso Raffinage, C‑471/18 P, EU:C:2019:198, paragraph 13 and the case-law cited).
11 In that context, with regard in particular to applications for leave to intervene submitted by environmental protection organisations, it follows from consistent case-law that the condition that there must be an ‘interest in the result of a case’, assumes, first, that the remit of those organisations, as derived from their objective laid down, as the case may be, in their articles of association, has a direct link with the subject matter of that case and, secondly, that that case raises questions of principle which are liable to affect the interests defended by the organisations in question (order of the President of the Court of 12 March 2019, Germany v Esso Raffinage, C‑471/18 P, EU:C:2019:198, paragraph 25 and the case-law cited).
12 In the present case, it should be noted, first of all, that, as is apparent from Articles 4 and 8 of its Articles of Association, attached to its application for leave to intervene, CFE is in an analogous position to an environmental protection organisation for the purposes of that case-law, inasmuch as its main objective is to combat animal testing and to act, at European level, as a coordinating body for its members, which are associations pursuing that same objective.
13 Next, as delimited by the grounds of appeal, the case raises, in particular, questions relating to the standard of judicial review of an act, such as the contested decision, declaring that a registration dossier for a chemical substance does not comply with the requirements for toxicity studies to be carried out on animal species, even though such an act involves highly complex assessments concerning the usefulness of the studies requested and the existence of a reasonable fear of harmful effects that are sufficiently serious or severe to justify the possibility of developmental neurotoxicity.
14 Finally, it follows from the arguments put forward by CFE in support of its application that the remit of that organisation has a direct link with the subject matter of the case, in so far as its objective is to conduct and coordinate campaigns against animal testing in Europe and to communicate its opposition to that type of testing by disclosing the facts and issues relating to such testing. In addition, CFE produced a letter from ECHA under which that organisation had been accepted as an ECHA-accredited stakeholder. It adds that, in order to acquire that status, an umbrella organisation of several other organisations must carry out its activities at EU level and be representative of its field of competence. In those circumstances, the fact that CFE has been accepted as an ECHA-accredited stakeholder confirms the assertions of that organisation as to the presence of its members on the territory of several Member States and the fact that it has a certain competence in issues relating to animal testing.
15 It follows that the questions of principle which are the subject of the appeal are such as to affect the interests defended by CFE.
16 It must therefore be considered that CFE has an interest in the result of the case.
17 CFE lodged its application to intervene after the expiry of the time limit referred to in Article 190(2) of the Rules of Procedure but before the decision to open the oral part of the procedure in the present case.
18 It should be borne in mind that, in accordance with Article 129(4) of the Rules of Procedure, applicable to the appeal proceedings under Article 190(1) of those rules, ‘consideration may be given’ to an application to intervene which is made after the expiry of the time limit referred to in Article 190(2) of those rules but before the decision to open the oral part of the procedure.
19 Therefore, if consideration is given to such an application, the exceedance of that time limit only deprives the intervener of the possibility of submitting a statement in intervention pursuant to Article 132(1) of the Rules of Procedure, applicable to the appeal proceedings under Article 190(1) of those rules, but still leaves it open for that intervener to submit its observations during the hearing, if one takes place (order of the President of the Court of 26 January 2022, ITD and Danske Fragtmænd v Commission, C‑442/21 P, EU:C:2022:106, paragraph 13).
20 In the present case, it is appropriate to give consideration to the application to intervene made by CFE pursuant to Article 129(4) of the Rules of Procedure, and to allow its intervention in support of the form of order sought by Nouryon Performance Formulations, in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 131(3) of the Rules of Procedure, applicable to the appeal proceedings under Article 190 of those rules.
21 Pursuant to Article 129(4) of the Rules of Procedure, CFE may therefore submit its observations during the hearing, if it takes place.
22 In addition, pursuant to Article 131(3) of the Rules of Procedure, CFE is to receive a copy of every procedural document served on the parties.
Costs
23 Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.
24 In the present case, since the application to intervene made by CFE has been granted, the costs relating to its intervention must be reserved.
On those grounds, the President of the Court hereby orders:
1. Cruelty Free Europe is granted leave to intervene in Case C‑353/23 P in support of the form of order sought by Nouryon Performance Formulations BV.
2. Cruelty Free Europe is authorised to submit its observations during the hearing, if it takes place.
3. A copy of every procedural document shall be served on Cruelty Free Europe by the Registrar.
4. The costs relating to the intervention of Cruelty Free Europe are reserved.
Luxembourg, 29 April 2024.
A. Calot Escobar | | K. Lenaerts |