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Action brought on 5 December 2008 - Norilsk Nickel Harjavalta Oy and Umicore NV v Commission

(Case T-532/08)

Language of the case: English

Parties

Applicants: Norilsk Nickel Harjavalta Oy (Harjavalta, Finland) and Umicore SA/NV (Brussels, Belgium) (represented by: K. Nordlander, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Declare the present application admissible;

annul the contested acts;

order the Commission to pay the applicants' costs for these proceedings.

Pleas in law and main arguments

By means of their application, the applicants seek the annulment of the specific entry for a group of four nickel carbonate related compounds - Nickel Hydroxycarbonate, Pure Nickel Carbonate and two other compounds (the "Nickel Carbonates") - in Commission Directive 2008/58/EC¹ ("the 30th ATP Directive"), which is an adaptation to technical progress ("ATP") of Directive 67/548/EEC² ("The Dangerous Substances Directive").

The applicants' central claim is that the revised classification of the Nickel Carbonates was not based on the applicable legal criteria. According to the applicants, the revised classification of the Nickel Carbonates is contrary to the requirements of Dangerous Substances Directive since it was unsupported by data and was not an adaptation to technical progress. Instead, it is submitted that the Commission revised the classification of the Nickel Carbonates based on a risk assessment of the Nickel Carbonates carried out for a different purpose under Regulation (EC) No 793/93³ ("The Risk Assessment Regulation"). The applicant further submits that the Commission relied in particular upon a Derogation Statement in which four individual companies, including the applicants, requested permission not to carry out certain testing required under the Risk Assessment Regulation. That Statement, according to the applicants, provided no data to support any of the changes in classification of the Nickel Carbonates that are included in the 30th ATP Directive.

Thus, the applicants seek the annulment of two separate acts of the European Commission:

the revised classification of the Nickel Carbonates in entry 028-010-00-0 in Annex 1F to the 30th ATP Directive;

the Commission's decision to use the Derogation Statement given by the applicants under the Risk Assessment Regulation as the basis for the contested entry.

In support of their claims the applicants submit that the contested acts do not comply with the requirements of the Dangerous Substances Directive for the following reasons:

a) the contested acts do not comply with the detailed criteria and scientific data requirements for classification in each hazard class under Annex VI to the Dangerous Substances Directive;

b) in adopting the contested acts, the Commission did not consider the intrinsic properties of the Nickel Carbonates in the context of normal handling and use required by the Dangerous Substances Directive;

c) the contested acts are not an adaptation to technical progress of the Dangerous Substances Directive and, as such, have no legal basis in EC law;

d) in taking the contested decision and basing the contested entry on the Nickel Carbonates risk assessment under the Risk Assessment Regulation, rather than applying Article 4 and Annex VI classification criteria, the Commission exceeded its powers under the Dangerous Substances Directive.

Moreover, the applicants claim that the revised classification of the Nickel Carbonates in the 30th ATP Directive must be annulled because the Commission failed to state the reasons on which it is based, as required by Article 253 EC.

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¹ - Commission Directive 2008/58/EC of 21 August 2008 amending, for the purpose of its adaptation to technical progress, for the 30th time, Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 2008 L 246, p. 1)

² - Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 1967 196, p. 1)

³ - Council Regulation (EEC) No 793/93 of 23 March 1993 on the evaluation and control of the risks of existing substances (OJ L 1993 84, p. 1)