Case T-532/08

Norilsk Nickel Harjavalta Oy and Umicore SA/NV

v

European Commission

(Action for annulment – Environment and protection of human health – Classification, packaging and labelling of certain nickel carbonate compounds as dangerous substances – Directive 2008/58/EC – Directive 67/548/EEC – Regulation (EC) No 790/2009 – Regulation (EC) No 1272/2008 – Amendment of form of order sought – Temporal application of the fourth paragraph of Article 263 TFEU – No individual concern – Inadmissibility)

Summary of the Order

1.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Possibility of basing an action brought before the entry into force of the Treaty of Lisbon on the fourth paragraph of Article 263 TFEU – None

(Arts 230, fourth and fifth paras, EC and 263, fourth para., TFEU)

2.      Actions for annulment – Actionable measures – Preparatory measures – Not included

(Art. 230 EC)

3.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Possibility of being directly and individually concerned by a general measure – Conditions – Measures concerning procedures for the evaluation of risks and classification of dangerous substances

(Art. 230, fourth para., EC)

1.      The FEU Treaty does not lay down any specific transitional provisions on whether the fourth paragraph of Article 263 TFEU is to apply to judicial proceedings pending on 1 December 2009. As regards specifically the question of the temporal application of the rules determining the conditions of admissibility of an action for annulment brought by an individual before the European Union judicature, first, in accordance with the maxim tempus regit actum the question of the admissibility of an application must be resolved on the basis of the rules in force at the date on which it was submitted and, second, the conditions of admissibility of an action are judged at the time of bringing the action, that is, the lodging of the application, a defect in which can be rectified only before the expiry of the period for bringing proceedings. Consequently, where, at the time of bringing an action for annulment, namely both the lodging of the original application and the lodging of the application for leave to amend the form of order and pleas in law, the conditions of its admissibility were governed by Article 230 EC, the question of the admissibility of the action must be resolved on the basis of that article.

(see paras 69-70, 72)

2.      An intermediate or preparatory act cannot be the target of an action for annulment within the meaning of Article 230 EC, since it does not have binding legal effects capable of affecting the interests of the applicants by bringing about a distinct change in their legal position. Any unlawful features vitiating such a preparatory act must be relied on in an action directed against the definitive act for which it represents a preparatory step. Its lawfulness can therefore be challenged only indirectly, in an action directed against the acts which closed the procedure.

(see paras 93-94)

3.      Persons other than those to whom an act is addressed can claim to be individually concerned within the meaning of the fourth paragraph of Article 230 EC only if the act affects them by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other persons and thereby distinguishes them individually in the same way as the addressee. However, the fact that it is possible to determine more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that that measure must be regarded as being of individual concern to those persons where it is established that that application takes effect by virtue of an objective legal or factual situation defined by the act in question. Thus, although the fact that a person participates in the process by which a European Union measure is adopted may be capable of distinguishing him individually with regard to that measure if provision has been made under the European Union rules for procedural guarantees in his favour, that is not the case of applicants who rely on their active participation in the procedure for the evaluation of the risk of certain substances, provided for by Articles 6 to 10 of Regulation No 793/93 on the evaluation and control of the risks of existing substances, provisions which do not apply to the separate procedure for the classification of a substance as a dangerous substance under Directive 67/548 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances and Regulation No 1272/2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548 and 1999/45, and amending Regulation No 1907/2006.

(see paras 97-99, 103, 108-109)