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Action brought on 17 February 2010 - Bilbaína de Alquitranes e.a. v ECHA

(Case T-93/10)

Language of the case: English

Parties

Applicants: Bilbaína de Alquitranes, SA (Luchana-Baracaldo, Spain), Cindu Chemicals BV (Uithoorn, The Netherlands), Deza a.s. (Valašske Meziříčí, Czech Republic), Industrial Química del Nalón, SA (Oviedo, Spain), Koppers Denmark A/S (Nyborg, Denmark), Koppers UK Ltd (Scunthorpe, United Kingdom), Rütgers Germany GmbH (Castrop-Rauxel, Germany), Rütgers Belgium NV (Zelzate, Belgium) and Rütgers Poland Sp. Z o.o. (Kedzierzyn-Kozle, Poland), (represented by: K. Van Maldegem, R. Cana, lawyers and P. Sellar, Solicitor)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

-     declare the application admissible and well-founded;

partially annul the contested act, as far as it relates to pitch, coal tar, high temp., CAS Number 65996-93-2; and

order ECHA to pay the costs of these proceedings.

Pleas in law and main arguments

The applicants seek the partial annulment of the decision of the European Chemicals Agency ("ECHA") (ED/68/2009) to identify pitch, coal tar, high temp., CAS Number 65996-93-2 ("CTPHT") as a substance meeting the criteria set out in Article 57(d) and (e) of Regulation (EC) No 1907/2006¹ (hereinafter "REACH"), in accordance with Article 59 of REACH.

On the basis of the contested decision, brought to the applicants' attention by means of an ECHA press release, the substance pitch, coal tar, high temp. was included in the list of 15 new chemical substances of the Candidate list of substance of very high concern.

In summary, the applicants do not challenge the identification of CTPHT as carcinogenic but they do challenge the identification of that substance as persistent, bioaccumulative and toxic and as very persistent and very bioaccumulative in accordance with the criteria set out in Annex XIII to REACH.

In addition, the applicants claim that the inclusion of pitch, coal tar, high temp. on the candidate list of substances of very high concern will lead to the eventual inclusion of such substance in Annex XIV to REACH, which in turn will have several negative legal consequences for the applicants which flow directly from such identification.

The applicants submit that the contested act is unlawful because it infringes the applicable rules established for the identification of substances of very high concern under REACH, and of substances which are persistent, bioacculumative and toxic and very persistent and very bioaccumulative, in particular. Accordingly, the contested decision is based on an error of assessment and an error of law because the identification of pitch, coal tar, high temp. as a substance of very high concern due to the fact that it is persistent, bioacculumative and toxic and very persistent and very bioaccumulative is solely based on properties of constituent substances, which finds no legal basis in REACH.

In addition, the contested act is unlawful because it infringes the principles of equal treatment since it discriminates between the substance in question and other comparable substances without any objective justification.

Finally, the applicants claim that the contested act infringes the principles of proportionality since it is disproportionate in view of the choice of measures available to the defendant and the disadvantages caused in the relation to the aims pursued.

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¹ - 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)