ORDER OF THE GENERAL COURT (Fifth Chamber, Extended Composition)
24 June 2014 (*)
(Action for annulment — REACH — Identification of acrylamide as a substance of very high concern — Action for annulment — Lack of direct concern — Inadmissibility)
In Case T‑1/10 RENV,
Polyelectrolyte Producers Group GEIE (PPG), established in Brussels (Belgium),
SNF SAS, established in Andrézieux-Bouthéon (France),
represented initially by K. Van Maldegem and R. Cana, and subsequently by R. Cana, lawyers,
applicants,
v
European Chemicals Agency (ECHA), represented by M. Heikkilä, W. Broere and T. Zbihlej, acting as Agents, assisted by J. Stuyck and A.-M. Vandromme, lawyers,
defendant,
supported by
Kingdom of the Netherlands, represented by B. Koopman, acting as Agent,
and by
European Commission, represented by E. Manhaeve and K. Talabér-Ritz, acting as Agents,
interveners,
APPLICATION for annulment of the decision of ECHA identifying acrylamide (EC No 201-173-7) as a substance fulfilling the criteria referred to in Article 57 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), pursuant to Article 59 of that regulation,
THE GENERAL COURT (Fifth Chamber, Extended Composition),
composed of A. Dittrich (Rapporteur), President, F. Dehousse, J. Schwarcz, V. Tomljenović and A.M. Collins, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the disputes
1 The first applicant, Polyelectrolyte Producers Group GEIE (PPG), is a European economic interest grouping established in Belgium. It represents the interests of companies that are producers and/or importers of polyelectrolytes, polyacrylamide and/or other polymers containing acrylamide. The companies that are members of the first applicant are also users of acrylamide and manufacturers and/or importers of acrylamide or polyacrylamide. All European Union producers of acrylamide are members of the first applicant.
2 The second applicant, SNF SAS, is a member company of the first applicant. It is principally active in the manufacture of acrylamide and polyacrylamide, which it sells directly to its customers. It has production plants in France, the United States, China and South Korea.
3 Polyelectrolytes are water-soluble, synthetic and organic polymers that are produced from different monomers; one of these monomers is acrylamide. They are used, for example, to purify drinking water, treat waste water, produce paper and extract precious minerals.
4 Polyacrylamide is a polymer formed by polymerisation of the monomer acrylamide that is most commonly used in water treatment, the paper industry, the mining industry, the oil industry, in agriculture, as a textile additive and in the cosmetics and personal‑care fields.
5 On 25 August 2009, the Kingdom of the Netherlands submitted to the European Chemicals Agency (ECHA) a dossier that it had drawn up concerning the identification of acrylamide as a substance fulfilling the criteria set out in Article 57(a) and (b) 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), subsequently amended, inter alia, by Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC (OJ 2008 L 353, p. 1), making reference to the classification of acrylamide as a category 2 carcinogen and a category 2 mutagen in Annex VI, Part 3, to Regulation No 1272/2008. On 31 August 2009, ECHA published a notice on its website inviting interested parties to submit comments on the acrylamide dossier. On the same day, ECHA also invited other Member State competent authorities to submit comments on this subject.
6 After receiving comments on the dossier in question, in particular from the first applicant, and the responses to those comments from the Kingdom of the Netherlands, ECHA referred the dossier to its Member State Committee, which, on 27 November 2009, unanimously agreed on the identification of acrylamide as a substance of very high concern, because acrylamide fulfilled the criteria set out in Article 57(a) and (b) of Regulation No 1907/2006.
7 On 22 December 2009, the Executive Director of ECHA adopted Decision ED/68/2009 to include acrylamide, on 13 January 2010, in the list of substances identified with a view to their eventual inclusion in Annex XIV to Regulation No 1907/2006 (‘the candidate list of substances’).
Procedure before the General Court and the Court of Justice and forms of order sought
8 By application lodged at the Registry of the General Court on 4 January 2010, the applicants brought an action for annulment of the decision of ECHA identifying acrylamide as a substance fulfilling the criteria set out in Article 57 of Regulation No 1907/2006, pursuant to Article 59 of that regulation (‘the contested decision’).
9 By document lodged at the Registry of the General Court on 5 January 2010, the second applicant made an application for interim measures, in which it essentially requested the President of the General Court to suspend operation of the contested decision.
10 By order of the President of the General Court of 11 January 2010, the operation of the contested decision was suspended until such time as an order terminating the proceedings for interim measures was made. Following that order, ECHA suspended the inclusion of acrylamide in the candidate list of substances.
11 By order of the President of the General Court of 26 March 2010 in Case T‑1/10 R PPG and SNF v ECHA, not published in the ECR, the second applicant’s application for interim measures was dismissed and the costs were reserved.
12 Following that order, ECHA published, on 30 March 2010, the candidate list of substances including acrylamide.
13 By letters registered at the Registry of the General Court on 19 and 20 April 2010 respectively, the European Commission and the Kingdom of the Netherlands applied for leave to intervene in support of the form of order sought by ECHA. After hearing the principal parties, that leave was granted by order of 8 June 2010 of the President of the Eighth Chamber of the General Court.
14 By documents lodged on 17 and 25 May 2010 respectively, the applicants made an application for confidential treatment of their written pleadings with regard to the interveners. That application for confidential treatment was not contested.
15 By order of 21 September 2011 in Case T‑1/10 PPG and SNF v ECHA [2011] ECR II‑6576, the General Court (Seventh Chamber, Extended Composition) dismissed the action as inadmissible.
16 By application lodged at the Registry of the Court of Justice on 30 November 2011, the applicants brought an appeal against the order in PPG and SNF v ECHA referred to in paragraph 15 above.
17 By judgment of 26 September 2013 in Case C‑626/11 P Polyelectrolyte Producers Group and SNF v ECHA [2013] ECR (‘the appeal judgment’), the Court of Justice set aside the order in PPG and SNF v ECHA referred to in paragraph 15 above. The Court of Justice held that the General Court incorrectly concluded that the application was inadmissible on the ground that it had been made before the publication of the contested decision (appeal judgment, paragraph 41).
18 Since the state of the proceedings did not permit final judgment to be given in the matter, the Court of Justice referred the case back to the General Court and reserved the costs.
19 The case was allocated to the Fifth Chamber (Extended Composition) of the General Court.
20 Since the written procedure had not been completed when the appeal judgment, referred to in paragraph 17 above, was delivered, ECHA was invited, by decision of the General Court (Fifth Chamber, Extended Composition) of 24 October 2013, to lodge a defence in accordance with Article 119(2) of the Rules of Procedure of the General Court.
21 By document lodged at the Registry of the General Court on 5 December 2013, ECHA raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure.
22 The applicants lodged their observations on the objection of inadmissibility on 29 January 2014.
23 The Commission lodged its statement in intervention limited to admissibility on 20 February 2014. The Kingdom of the Netherlands did not file a statement in intervention within the prescribed period.
24 ECHA, supported by the Commission, contends that the General Court should:
– declare the action inadmissible;
– order the applicants to pay the costs.
25 The applicants claim that the General Court should:
– reject the objection of admissibility;
– in the alternative, join the objection of inadmissibility to the substance of the case.
Law
26 Pursuant to Article 114(3) and (4) of the Rules of Procedure, the Court may, if a party so requests, rule on the plea of admissibility without considering the merits of the case. Pursuant to Article 114(3), unless the Court otherwise decides, the remainder of the proceedings shall be oral. The Court considers that, in the present case, it has sufficient information from the documents on the file and that there is no need to open the oral procedure.
27 In support of its objection, ECHA raises a plea of inadmissibility on the ground that the applicants are not directly concerned.
28 Under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
29 In the present case, it is common case that the applicants are not addressees of the contested decision. That being the case, in accordance with the fourth paragraph of Article 263 TFEU, the applicants may institute proceedings for annulment of that act only if that act is of direct concern to them.
30 As regards the admissibility of the first applicant’s action, it must be observed that it has already been held that an association which is responsible for defending the collective interests of its members, is, as a rule, entitled to bring an action for annulment only if the undertakings that it represents or some of these undertakings themselves have locus standi or if it can prove an interest of its own (see, to that effect, Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 56 and the case-law cited). That rule also applies to a European economic interest grouping which, like the first applicant, was created in order to defend the interests of a category of undertakings (see, to that effect, order of the General Court of 22 July 2005 in Case T‑376/04 Polyelectrolyte Producers Group v Council and Commission [2005] ECR II‑3007, paragraph 38).
31 In the present case, the first applicant did not produce any evidence to show that its own interests are directly affected. Even on the assumption that it is under a duty to organise and coordinate a harmonised approach to the obligations under Regulation No 1907/2006 for the entire sector in question, it would not assert its own interests, but those of its members. Consequently, the first applicant is entitled to bring an action for annulment only if its members or some of them are directly concerned by the contested decision.
32 With regard to direct concern, it is settled case-law that that condition requires (i) that the measure complained of directly affects the legal situation of the individual and (ii) leaves no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (Case C‑386/96 P Dreyfus v Commission [1998] ECR I‑2309, paragraph 43; Case C‑486/01 P Front national v Parliament [2004] ECR I‑6289, paragraph 34; and Joined Cases C‑445/07 P and C‑455/07 P Commission v Ente per le Ville vesuviane and Ente per le Ville vesuviane v Commission [2009] ECR I‑7993, paragraph 45).
33 First, the applicants claim that the contested decision is of direct concern to them in that the legal situation of the first applicant’s members and that of the second applicant are affected by reason of the obligations laid down under Article 34(a) of Regulation No 1907/2006.
34 Pursuant to that provision, any actor in the supply chain of a substance or mixture is required to communicate new information on dangerous properties, regardless of the uses concerned, to the next actors or distributors up the supply chain.
35 In that regard, it must be stated first that that provision does not create information obligations for the first applicant’s members or for the second applicant with regard to their customers. Article 34(a) of Regulation No 1907/2006 imposes a duty to provide information on the actors or distributors directly upstream in the supply chain. The customers of the first applicant’s members or those of the second applicant are not situated upstream but further down that chain.
36 Secondly, even if, as the applicants claim, there is also an upstream supply chain because some of the first applicant’s members obtain acrylamide from other suppliers for their polyacrylamide production, which, however, the applicants have not established, it must be stated that the duty to provide information referred to in Article 34(a) of Regulation No 1907/2006 did not apply to those members of the first applicant.
37 The identification of acrylamide as a substance of very high concern as a result of the procedure referred to in Article 59 of Regulation No 1907/2006 was made on the ground that that substance, by virtue of Article 57(a) and (b) of Regulation No 1907/2006, met the criteria for classifying it among carcinogens and mutagens in category 2 in accordance with 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, English Special Edition 1967, p. 234). The fact that acrylamide meets those criteria was already established in Part 3 of Annex VI to Regulation No 1272/2008. In accordance with Article 59(3) of Regulation No 1907/2006, the Kingdom of the Netherlands, in its dossier sent to ECHA on 25 August 2009, referred to the inclusion of acrylamide in Part 3 of Annex VI to Regulation No 1272/2008 (see paragraph 5 above). It follows that the identification of acrylamide in the contested decision as a substance of very high concern did not contain any new information as regards the dangerous properties of that substance but was the outcome of the identification procedure under Article 59 of Regulation No 1907/2006 (see, to that effect, order of the General Court of 21 September 2011 in Case T‑343/10 Etimine and Etiproducts v ECHA [2011] ECR II‑6611, paragraph 39).
38 That finding is not called into question by the applicants’ argument that Article 34(a) of Regulation No 1907/2006 does not relate to information concerning new dangerous properties, but to new information concerning those dangerous properties, and therefore also information that was known beforehand and not contested. As is clear from recitals 17, 18, 21, 56 and 58 in the preamble to Regulation No 1907/2006, the communication of information is used to manage risks associated with the substances concerned. The identification of a substance as a substance of very high concern as a result of the procedure set out in Article 59 of Regulation No 1907/2006 does not, in the present case, provide any new information on the intrinsic dangerous properties of a substance that could be used to manage risks, but merely categorises that substance for the purposes of the authorisation procedure under Title VII of Regulation No 1907/2006.
39 Inasmuch as the applicants, in support of their arguments relating to Article 34(a) of Regulation No 1907/2006, refer to Article 1(3) of that regulation, according to which the regulation is based on the principle that it is for manufacturers, importers and downstream users to ensure that they manufacture, place on the market or use substances that do not adversely affect human health or the environment, suffice it to say that Article 34(a) of Regulation No 1907/2006 concerns the duty to provide information to the actors or distributors directly upstream in the supply chain, and not downstream. Furthermore, it must be stated that Regulation No 1907/2006 establishes a detailed system of obligations which cannot be extended on the basis of the general considerations contained in Article 1(3) of that regulation (order of the General Court in Etimine and Etiproducts v ECHA, cited in paragraph 37 above, paragraph 40, and order of the General Court of 21 September 2011 in Case T‑346/10 Borax Europe v ECHA [2011] ECR II‑6629, paragraph 42).
40 It follows that the applicants are not directly concerned on the basis of the obligations provided for in Article 34(a) of Regulation No 1907/2006.
41 Secondly, the applicants claim that the contested decision is of direct concern to them in that the legal situation of the first applicant’s members and that of the second applicant are affected because of the obligations provided for in Article 32(1)(d) of Regulation No 1907/2006. In their submission, the contested decision imposes on the first applicant’s members and on the second applicant an obligation to inform their customers of the presence of acrylamide and of the identification of that substance as a substance of very high concern when they supply polyacrylamide or preparations containing acrylamide which do not have to contain a safety data sheet, so that their customers are, in turn, able to assess the need to take appropriate risk management measures, such as, for example, applying for the EU Ecolabel in accordance with Regulation (EC) No 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel (OJ 2010 L 27, p. 1).
42 Under Article 32(1)(d) of Regulation No 1907/2006 any supplier of a substance, on its own or in a mixture, who does not have to supply a safety data sheet in accordance with Article 31 must provide the recipient with all available and relevant information about the substance that is necessary to enable appropriate risk management measures to be identified and applied including specific conditions resulting from the application of Section 3 of Annex XI to that regulation on substance-tailored exposure-driven testing.
43 In that regard, it must be held that, although it is true that the information on the presence of acrylamide in polyacrylamide or in preparations containing acrylamide may be necessary to enable the identification and implementation of appropriate risk management measures, the fact remains that the information on the identification of acrylamide as a substance of very high concern as a result of the procedure referred to in Article 59 of Regulation No 1907/2006 does not, in the present case, provide any information on the intrinsic dangerous properties of that substance which could be used for risk management, but merely categorises that substance for the purposes of the authorisation procedure under Title VII of Regulation No 1907/2006 (see paragraph 38 above).
44 As regards the applicants’ argument concerning their customers’ right to obtain the EU Ecolabel under Regulation No 66/2010, it is true that that label cannot be awarded for products containing substances that meet the criteria laid down in Article 57 of Regulation No 1907/2006, and which are identified in accordance with the procedure set out in Article 59(1) of that regulation, present in mixtures, in an article or in any homogeneous part of a complex article in concentrations higher than 0.1% (weight by weight), in accordance with Article 6(6) and (7) of Regulation No 66/2010. However, the right to obtain the EU Ecolabel under Regulation No 66/2010 is unrelated to risk management measures. It is clear from recital 5 in the preamble to Regulation No 66/2010 that the EU Ecolabel scheme forms part of the European Union’s policy on sustainable consumption and production, which aims at reducing the negative impact of consumption and production on the environment, health, climate and natural resources. That scheme is intended to promote those products which have a high level of environmental performance through the use of the EU Ecolabel.
45 Consequently, the applicants are not directly concerned on the basis of the obligations provided for in Article 32(1)(d) of Regulation No 1907/2006.
46 Thirdly, the applicants claim that the contested decision is of direct concern to them in that the legal situation of the first applicant’s members and that of the second applicant are affected by reason of the requirements laid down in Section 15 of Annex II to Regulation No 1907/2006, as amended by Commission Regulation (EU) No 453/2010 of 20 May 2010, amending Regulation No 1907/2006 (OJ 2010 L 133, p. 1). In their submission, by virtue of that section, the first applicant’s members and the second applicant are required to include in the safety data sheet accompanying their products information relating to the identification of acrylamide as a substance of very high concern as a result of the procedure set out in Article 59 of Regulation No 1907/2006. The applicants maintain that the recipients of acrylamide or the recipients of preparations containing acrylamide or the recipients of polyacrylamide must be informed of the identification of acrylamide as a substance of very high concern in order to be able to assess, inter alia, compliance with the rules on the award of the EU Ecolabel in accordance with Regulation No 66/2010 and compliance with Articles 7 and 33 of Regulation No 1907/2006, containing the information requirements incumbent on their customers. According to the applicants, that derives from (i) their obligation to indicate the information concerning relevant European Union safety, health and environmental provisions, including advice regarding action that should be taken by the recipient as a result of those provisions, and (ii) the fact that acrylamide is the subject of specific provisions in relation to the protection of human health or the environment.
47 In that regard, first, it is true that Section 15 of Annex II to Regulation No 1907/2006 was amended by Regulation No 453/2010 and that, as a result of that amendment, a supplier of a substance is required to indicate in the safety data sheet referred to in Article 31 of Regulation No 1907/2006 information regarding relevant European Union safety, health and environmental provisions, for example, the Seveso category and the named substances in Annex I to Council Directive 96/82/EC of 9 December 1996 on the control of major accident hazards involving dangerous substances (OJ 1997 L 10, p. 13), or to provide national information on the regulatory status of the substance or mixture, including the substances in the mixture, together with advice regarding action that should be taken by the recipient as a result of those provisions.
48 However, given that, according to settled case-law, the conditions of admissibility of an action are judged at the time of bringing the action, that is, the lodging of the application (see order of 7 September 2010 in Case T‑539/08 Etimine and Etiproducts v Commission [2010] ECR II‑4017, paragraph 76 and the case-law cited), and that the application was lodged on 4 January 2010, that is to say, before the adoption of Regulation No 453/2010 by the Commission on 20 May 2010, the applicants cannot be directly concerned by reason of the obligations arising out of Section 15 of Annex II to Regulation No 1907/2006, as amended by Regulation No 453/2010.
49 Secondly, it must be found that Section 15 of Annex II to Regulation No 1907/2006, at the time of lodging the application, provided that, if the substance or mixture covered by the safety data sheet was the subject of specific provisions in relation to protection of man or the environment at EU level (for example, authorisations given under Title VII or restrictions imposed under Title VIII of that regulation), those provisions had, as far as was possible, to be stated.
50 In that regard, although the identification of a substance as being of very high concern as a result of the procedure referred to in Article 59 of Regulation No 1907/2006 is capable of triggering information obligations on the part of economic operators, that does not have the effect of making the substance in question fall within a particular regime and thus of making it the subject of specific provisions. On the contrary, such identification has no impact on the placing on the market and use of the substance (orders in Etimine and Etiproducts v ECHA, cited in paragraph 37 above, paragraph 33, and Borax Europe v ECHA, cited in paragraph 39 above, paragraph 34).
51 As regards the authorisation procedure provided for in Title VII of Regulation No 1907/2006 and the restrictions imposed under Title VIII, the only examples listed in Section 15 of Annex II to that regulation as being caught by that provision are authorisations given and restrictions. Since the identification of a substance as a substance of very high concern as a result of the procedure referred to in Article 59 of Regulation No 1907/2006 does not relate to the restrictions imposed under Title VIII of that regulation but is part of the authorisation procedure provided for under Title VII, the reference to the restrictions in Section 15 of Annex II to Regulation No 1907/2006 does not support the proposition that such identification falls under that provision (orders in Etimine and Etiproducts v ECHA, cited in paragraph 37 above, paragraph 34, and Borax Europe v ECHA, cited in paragraph 39 above, paragraph 35).
52 As regards the authorisations given, it is apparent from Title VII of Regulation No 1907/2006 that these are the authorisations granted in accordance with Article 60 of that regulation, which are part of a subsequent stage of the authorisation procedure (Articles 60 to 64 of Regulation No 1907/2006). They may be requested from ECHA pursuant to Article 62(1) of that regulation for one or several uses of a substance which it is prohibited to place on the market because of its inclusion in Annex XIV to that regulation. It must be noted that, with regard to the authorisation procedure provided for in Title VII of Regulation No 1907/2006, identification of a substance as a substance of very high concern as a result of the procedure referred to in Article 59 of that regulation was not expressly mentioned by the legislature in Section 15 of Annex II to that regulation. It is true that the reference to authorisations given under Title VII of that regulation is provided by way of example only, but the fact remains that that is the only reference relating to the authorisation procedure under Title VII of Regulation No 1907/2006. While it cannot be ruled out that section 15 of the safety data sheet may be affected by other specific provisions in relation to protection of man or the environment at EU level, so far as the authorisation procedure provided for under Title VII of Regulation No 1907/2006 is concerned, that consideration would also indicate that only authorisations fall under that section. That conclusion is supported by the fact that Article 31(9)(b) of that regulation provides that the safety data sheet must be updated once an authorisation has been granted or refused (orders in Etimine and Etiproducts v ECHA, cited in paragraph 37 above, paragraph 35, and Borax Europe v ECHA, cited in paragraph 39 above, paragraph 36).
53 It follows that the identification of a substance as a substance of very high concern as a result of the procedure referred to in Article 59 of Regulation No 1907/2006 does not have the effect of making that substance the subject of specific provisions in relation to protection of man or the environment at EU level within the meaning of Section 15 of Annex II to that regulation (orders in Etimine and Etiproducts v ECHA, cited in paragraph 37 above, paragraph 36, and Borax Europe v ECHA, cited in paragraph 39 above, paragraph 37).
54 Consequently, by virtue of Section 15 of Annex II to Regulation No 1907/2006, before its amendment by Regulation No 453/2010, the first applicant’s members and the second applicant were not required to indicate the identification of acrylamide as a substance of very high concern in the safety data sheet. The applicants are therefore not directly concerned by reason of the obligations provided for in Section 15 of Annex II to Regulation No 1907/2006.
55 Fourthly, as regards the applicants’ arguments that the contested decision is of direct concern to them in that the legal situation of the first applicant’s members and that of the second applicant were affected by reason of the obligations resulting from Articles 7 and 33 of Regulation No 1907/2006, it must be observed that those provisions contain information obligations for producers, importers and suppliers of articles such as those defined in Article 3(4), (11) and (33) of that regulation.
56 It is common ground that the first applicant’s members and the second applicant do not have the status of a producer or importer of articles, nor are they a supplier of an article. The obligations laid down under Article 7 and Article 33 of that regulation clearly cover directly therefore only the customers of the first applicant’s members and those of the second applicant in so far as those customers are producers or importers of articles or suppliers of an article. It is true that recital 18 in the preamble to Regulation No 1907/2006 and Article 1 of that regulation emphasise the responsibility for management of the risks of substances that lies with the manufacturers, importers and downstream users of those substances. However, Regulation No 1907/2006 establishes a detailed system of obligations which cannot be extended on the basis of the general considerations contained in those provisions (orders in Etimine and Etiproducts v ECHA, cited in paragraph 37 above, paragraph 40, and Borax Europe v ECHA, cited in paragraph 39 above, paragraph 42).
57 Consequently, the applicants are not directly concerned by reason of the obligations provided for in Articles 7 and 33 of Regulation No 1907/2006.
58 Fifthly, as regards the argument that the contested decision is of direct concern to the second applicant in that that decision affects its material situation, it must be held that the mere fact that a measure may exercise an influence on an applicant’s material situation cannot suffice to allow him to be regarded as directly concerned. Only the existence of specific circumstances can enable such a litigant, claiming that the measure affects its position on the market, to bring proceedings under the fourth paragraph of Article 263 TFEU (Cases 10/68 and 18/68 Eridania and Others v Commission [1969] ECR 459, paragraph 7; orders in Etimine and Etiproducts v ECHA, cited in paragraph 37 above, paragraph 41, and Borax Europe v ECHA, cited in paragraph 39 above, paragraph 46). In the present case, since the second applicant claimed only that its customers would stop using acrylamide, it has not established the existence of such specific circumstances.
59 In the light of the foregoing, it must be held that the applicants are not directly concerned by the contested decision.
60 Consequently, the plea of inadmissibility must be upheld and the application dismissed as inadmissible.
Costs
61 In the judgment on appeal, referred to in paragraph 17 above, the Court of Justice reserved the costs. It is therefore for the General Court to decide, in the present order, on all the costs relating to the various proceedings, in accordance with Article 121 of the Rules of Procedure.
62 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, under Article 87(4), the Member States and institutions which intervened in the proceedings are to bear their own costs.
63 As the applicants have been unsuccessful, they must be ordered to pay their own costs and those incurred by ECHA, in accordance with the form of order sought by ECHA. The costs relating to the proceedings for interim measures shall be paid by the second applicant, in accordance with the form of order sought by ECHA. The Kingdom of the Netherlands and the European Commission shall bear their own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber, Extended Composition)
hereby orders:
1. The action is dismissed as inadmissible.
2. Polyelectrolyte Producers Group GEIE (PPG) and SNF SAS shall bear their own costs and pay those incurred by the European Chemicals Agency (ECHA).
3. SNF shall pay the costs relating to the proceedings for interim measures.
4. The Kingdom of the Netherlands and the European Commission shall bear their own costs.
Luxembourg, 24 June 2014.