Action brought on 29 May 2015 – Esso Raffinage v ECHA

(Case T-283/15)

Language of the case: English

Parties

Applicant: Esso Raffinage (Courbevoie, France) (represented by: M. Navin-Jones, Solicitor)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicant claims that the Court should:

declare the application as admissible and well-founded;

annul the decision of 1 April 2015 adopted by the European Chemicals Agency (“ECHA”) with respect to Regulation (EC) No 1907/2006 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 L 396, p. 1), being a letter entitled “Statement of Non-Compliance following a Dossier Evaluation Decision under Regulation (EC) No 1907/2006 (“SONC”) and its attachment (reference number CCH-C-0000005770-74-01/F);

order that the case be referred back to the ECHA Executive Director with a direction that any new ECHA decision take into account the reasons for annulment stipulated in the General Court Judgment and all relevant, up-to-date information;

order ECHA to pay the costs incurred by the applicant regarding these proceedings; and

take other or further measures as justice may require.

Pleas in law and main arguments

In support of the action, the applicant relies on a number of pleas in law, including the following:

First plea in law, alleging ultra vires act, breach of institutional balance etc.

The applicant puts forward that there is no legal authority or legal basis for ECHA to establish, compile, adopt and/or send so-called Statements of Non-Compliance and that by having compiled, adopted and sent a SONC in this case, ECHA has (i) acted outside the limit of its discretionary and/or executive powers (ultra vires act); (2) acted in breach of the legal principle and requirement of institutional balance of power; (3) acted in breach of the legal principle and requirement of good administration; (4) acted in breach of the legal principle of good public governance; and/or (5) acted in breach of Article 41 of the Charter of Fundamental Rights of the European Union.

Second plea in law, alleging, in the alternative, breach of Article 42 REACH.

The applicant submits that to the extent ECHA may seek to rely upon Article 42(1) REACH as legal authority and/or the legal basis for the Contested Decision, Article 42(1) REACH does not provide ECHA any legal authority or basis for adopting the contested decision and that by adopting the contested decision ECHA has acted in breach of Article 42(1) REACH. The applicant submits that, in this case, ECHA has not adopted the appropriate decision as required by Article 42(1) REACH. The applicant submits that ECHA has consistently interpreted Article 42(1) REACH as not authorizing the issuance of a Statement of Non-Compliance.

Third plea in law, alleging a breach of the right to be heard.

The applicant puts forward that the contested decision has been adopted in breach of the EU legal principles of the right to be heard, the right to respond and to reply, the right of defence, the right to notice, and the right to good administration. The applicant submits that as a direct consequence of the breach of these procedural and process rights, the contested decision is voidable and void. That is: ECHA had not acted in breach of the applicant’s procedural and process rights, the applicant submits that the outcome of the process and the procedure would have materially differed.

Fourth plea in law, alleging breach of the principle of proportionality.

The applicant submits that the contested decision was inconsistent with, and in breach of, the EU legal principle of proportionality. The applicant submits that the contested decision is not appropriate or necessary, did not constitute the least onerous measure and that the disadvantages caused were disproportionate to the aims pursued.

Fifth plea in law, alleging an error in interpretation of data requirements under REACH.

The applicant submits that ECHA has committed an error in interpreting the information requirements regarding Annex X, section 8.7.2. as there is in fact no de facto requirement to conduct a pre-natal developmental toxicity study on a second species. The applicant therefore submits that ECHA has, by adopting the contested decision, acted without legal basis and outside the limits of its discretionary powers.

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