ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
18 October 2012 (*)
(Intervention – Interest in the result of the case – Representative association – Objects specified in the statutes)
In Case T‑245/11,
ClientEarth, established in London (United Kingdom),
The International Chemical Secretariat, established in Gothenburg (Sweden),
represented by P. Kirch, lawyer,
applicants,
v
European Chemicals Agency (ECHA), represented by M. Heikkilä and A. Iber, acting as Agents,
defendant,
supported by
European Commission, represented by P. Oliver, E. Manhaeve and C. ten Dam, acting as Agents,
intervener,
APPLICATION for annulment of a decision of the European Chemicals Agency refusing to grant the applicants access to information submitted in the context of the registration procedure for certain chemical substances,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Background and procedure
1 By e-mail of 1 December 2010, The International Chemical Secretariat (‘ChemSec’), on the basis 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) and Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13), requested the European Chemicals Agency (ECHA) to grant it access to three specific categories of information concerning 356 chemical substances, namely:
‘1 manufacturer/importer name(s) including contact details;
2 the precise tonnage of the substances manufactured or placed on the market;
3 the total tonnage band (i.e. 1 to 10 tonnes, 10 to 100 tonnes, 100 to 1 000 tonnes or over 1 000 tonnes) within which the 356 substances have been registered in case access to the information under number 2 cannot be accessed.’
2 By letter of 22 December 2010, ECHA responded to ChemSec, outlining its refusal to grant ChemSec access to the first two types of information mentioned above. As regards the third category of information, ECHA stated that the majority of substances referred to in the application for access had not yet been registered and that, consequently, it did not have the requested information at that stage.
3 By letter of 21 January 2011, ChemSec submitted a confirmatory application to ECHA requesting it to reconsider its ‘denial of 1 December 2010 application requesting access to environmental documents’. That confirmatory application was co-signed by ClientEarth, which was not a party to the initial application, on the basis of a shared interest.
4 By letter of 4 March 2011, indicated as having the subject ‘Confirmatory application for reviewing a decision regarding public access to documents’, ECHA confirmed its refusal to allow access to the first two categories of information sought and the fact that it did not hold a document corresponding to the information requested regarding the total tonnage, shown as a band, for which the 356 chemical substances at issue had been registered. It did, however, attach to its letter a table containing that information for certain substances, specifying that it could not guarantee its accuracy.
5 By application lodged at the Registry of the Court on 6 May 2011, ChemSec and ClientEarth (‘the applicants’) brought the present action.
6 By document lodged at the Registry of the Court on 3 August 2011, ECHA raised an objection of inadmissibility pursuant to Article 114(1) of the Court’s Rules of Procedure. By order of the Court of 13 December 2011, the plea of inadmissibility was reserved for the final judgment and costs were reserved.
7 By documents lodged at the Registry of the Court on 9 August 2011, the Commission and the European Chemical Industry Council (‘CEFIC’) sought leave to intervene in the present proceedings in support of the form of order sought by ECHA.
8 By order of 8 February 2012, the President of the Eighth Chamber of the General Court granted the Commission’s application for leave to intervene and ordered that it be sent copies of all the procedural documents. The Commission lodged a statement in intervention within the period prescribed.
9 By document lodged at the Registry of the Court on 5 September 2011, ECHA indicated that it did not have any objections with respect to CEFIC’s application to intervene.
10 By document lodged at the Registry of the Court on 7 September 2011, the applicants submitted that CEFIC’s application to intervene should be dismissed.
Law
11 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of a case other than a dispute between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case.
12 According to settled case-law, intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle that are liable to affect those members (orders of the President of the Court of Justice in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraph 66, and in Case C‑151/98 P Pharos v Commission [1998] ECR I‑5441, paragraph 6; orders of the President of the Court of First Instance in Case T‑53/01 R Poste Italiane v Commission [2001] ECR II‑1479, paragraph 51, and in Case T‑201/04 R Microsoft v Commission [2004] ECR II‑2977, paragraph 37). More particularly, an association may be allowed to intervene in a case if (i) it represents an appreciable number of undertakings active in the sector concerned, (ii) its objects include that of protecting its members’ interests, (iii) the case may raise questions of principle affecting the functioning of the sector concerned, and (iv) the interests of its members may therefore be affected to an appreciable extent by the forthcoming judgment (orders in Case T‑87/92 Kruidvat v Commission [1993] ECR II‑1375, paragraph 14, and in Case T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2004] ECR II‑1603, paragraph 21).
13 The Court of Justice has stated that the adoption of a broad interpretation of the right of associations to intervene is intended to facilitate assessment of the context of such cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (National Power and PowerGen, cited in paragraph 12 above, paragraph 66).
14 In the present case, the applicants claim that the application to intervene lodged by CEFIC, an international non-profit making association, should be rejected, pleading breach of the fourth paragraph of Article 40 of the Statute of the Court of Justice and incompatibility with CEFIC’s statutes, since the latter do not mention, under the objects of the association, the protection of its members’ interests.
15 First, it must be recalled that, according to the fourth paragraph of Article 40 of the Statute of the Court of Justice, an application to intervene must be limited to supporting the form of order sought by one of the parties.
16 Contrary to the applicants’ claims, the fact that CEFIC contended that the action be dismissed, whereas ECHA raised a plea seeking a declaration that the action was inadmissible, does not allow the conclusion to be drawn that there has been a breach of the abovementioned provision, since the Court’s upholding of such a plea necessarily involves dismissal of the action.
17 In any event, it must be stated that ECHA also filed a statement in defence contending that the action should be dismissed as being unfounded.
18 Second, it is apparent from Article 5 of CEFIC’s statutes that its members include: (i) the national chemical industry federations of 28 countries in Europe; (ii) corporate members, being companies which produce chemical substances in one or more European countries and have a worldwide chemicals production turnover in excess of one billion euro; (iii) business members, being companies with a centre of operation in Europe and having a worldwide chemicals production turnover under one billion euro; and (iv) associate companies, being companies engaged in the production of chemicals outside Europe.
19 CEFIC, which attached a list of its members to its application for leave to intervene, stated that it thus represents 29 000 chemical companies in Europe, accounting for approximately one quarter of world-wide chemicals production, and that the majority of those companies are involved in the manufacture or importation of one or more of the 356 substances concerned as well as of a large number of other substances, in respect of which commercial information identical to that sought by the applicants is furnished to ECHA.
20 As regards the objects specified in its statutes, it follows from Article 3 of CEFIC’s statutes that that association ‘shall pursue mainly a scientific purpose by promoting all issues of interest to the chemical industry, in the widest sense, in Europe and in the countries where it operates, and its contribution to sustainable development’. In order to fulfil its aim, CEFIC focuses on ‘the study of and possible solution for all issues of interest to the chemical industry in the widest possible sense, in particular those of a scientific, technical, environmental, economic, statistical, legal, documentary and institutional nature together with the issues relating to international and European co-operation, as well as research’. In addition, CEFIC ‘may take any measures or steps, and initiate any course of action, capable of promoting the achievement of its aim’.
21 It appears that CEFIC’s objects, as specified in its statutes, are sufficiently wide to give it an interest in the result of the case (see, to that effect, order in Case T‑87/92 Kruidvat v Commission [1993] ECR II‑1369, paragraphs 12 and 13), as the actual activities of the association show that those objects include those of protecting its members’ interests and representing them.
22 CEFIC has thus stated, without being contradicted by the applicants, that it sits as the industry representative within all the major decision‑making and consultative bodies involved in the implementation 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) and that, as regards, specifically, the disclosure of names/contact details of the registering manufacturers/importers of substances, it submitted detailed observations to ECHA’s Management Board Advisory Group on dissemination, by e‑mail of 28 October 2010 and letter of 25 November 2010, in which CEFIC submitted that such information should not be disseminated on the ECHA website.
23 It should be noted that CEFIC has already been granted leave to intervene by the Court in two sets of proceedings, in support of a chemical company which had brought an action seeking the annulment of certain provisions of Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8, and amending Regulation No 1896/2000 (OJ 2003 L 307, p. 1) (order of the President of the Fifth Chamber of 2 August 2004 in Case T‑76/04 Bactria v Commission, not published in the ECR) and in support of chemical companies, some of which were members of the association, requesting the Court to set aside several provisions of Commission Regulation (EC) No 1451/2007 of 4 December 2007 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market (OJ 2007 L 325, p. 3) (order of the President of the Second Chamber of 14 January 2011 in Case T‑120/08 Arch Chemicals and Others v Commission, not published in the ECR).
24 Finally, it should be noted that the present case raises questions of principle connected with the scope of ECHA’s obligation to provide access to information contained in applications for registration of both the 356 substances concerned and all other registered substances. The forthcoming judgment is liable to affect significantly the functioning of the chemical sector as a whole, and therefore CEFIC’s members.
25 Accordingly, it must be held that CEFIC has an interest in intervening in the present case in support of the form of order sought by the defendant. The application for leave to intervene must therefore be granted.
26 Since the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 2 July 2011, the application for leave to intervene was submitted within the period prescribed in Article 115(1) of those Rules and the rights of the intervener are those set out in Article 116(2) to (4) thereof.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The European Chemical Industry Council (CEFIC) is granted leave to intervene in Case T‑245/11 in support of the form of order sought by the defendant.
2. The Registrar shall send copies of all the procedural documents served on the parties to the intervener.
3. A period shall be prescribed within which the intervener may submit a statement in intervention.
4. The costs are reserved.
Luxembourg, 18 October 2012.