Case T-1/10

Polyelectrolyte Producers Group GEIE (PPG) and SNF SAS

v

European Chemicals Agency (ECHA)

(Actions for annulment – REACH – Identification of acrylamide as a substance of very high concern – Measure not actionable – Inadmissibility)

Summary of the Order

Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects – Preparatory measures – Not included – Decision of the European Chemicals Agency (ECHA) identifying acrylamide as a substance of very high concern – Act not intended to produce legal effects – Inadmissibility

(Art. 263 TFEU; European Parliament and Council Regulation No 1907/2006, Arts 57 and 59)

An action for annulment is available in the case of all measures adopted by the institutions, bodies, offices or agencies of the Union, whatever their nature or form, that are intended to have legal effects. In the case of acts or decisions worked out in stages, in particular at the end of an internal procedure, only measures definitively laying down the position of the institution, body, office or agency of the Union concerned at the end of that procedure, are, in principle, acts against which an action for annulment will lie. Consequently, measures of a preliminary or purely preparatory nature cannot be the subject of an action for annulment.

An action for annulment brought against a decision of the European Chemicals Agency (ECHA) identifying acrylamide as a substance of very high concern that fulfils the criteria referred to in Article 57 of Regulation No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), pursuant to Article 59 of that regulation, must be rejected as inadmissible since, at the time when the admissibility of the present action must be assessed, that is to say, at the time when the application was lodged, such a decision was not intended to produce legal effects vis-à-vis third parties.

The procedure laid down in Article 59 of Regulation No 1907/2006, consisting of the identification of the substances fulfilling the criteria referred to in Article 57 of that regulation and the establishment of a candidate list of substances, takes place in several stages. In that regard, while it is true that the term ‘include’ in Article 59(8) of Regulation No 1907/2006 makes it clear that the ECHA body responsible for including a substance in the candidate list of substances does not have any discretion in relation to that inclusion, as this automatically follows the agreement of the Member State Committee, it remains the case that, before including a substance in the candidate list of substances under that provision, the act of identifying a substance as being of very high concern, resulting from the procedure set out in Article 59 of that regulation, is not intended to produce legal effects vis-à-vis third parties.

First, the information obligations arising from the act resulting from the procedure set out in Article 59 of Regulation No 1907/2006, provided for in Article 7(2), Article 31(1)(c) and 31(3)(b), and Article 33(1) and (2) of that regulation, make reference, on the one hand, to the substances identified in accordance with Article 59(1) of that regulation and, on the other, to the substances included in, or appearing in, the candidate list of substances. There is nothing in Regulation No 1907/2006 that states that the legislature intended the persons concerned by those obligations to comply with them at different stages of the procedure set out in Article 59 of that regulation. By contrast, it is apparent from Article 59 of that regulation that the effective operation of the procedure provided in that article consists of the final identification of the substances that fulfil the criteria set out in Article 57 of that regulation. It is apparent from Article 59(1) of that regulation, which makes reference to paragraphs 2 to 10 of that article with regard to the identification procedure, that the inclusion of a substance in the candidate list of substances, set out in paragraph 8 of that article, is an integral part of that procedure. The references, on the one hand, to the substances identified in accordance with Article 59(1) of that regulation and, on the other, to the substances included in, or appearing in, the candidate list of substances cannot, therefore, correspond to the various stages of the identification procedure, so that the obligations referred to cannot exist before the actual inclusion of the substance in the candidate list of substances.

Secondly, if ECHA does not receive or make any comments in relation to the proposal to identify a substance as being of very high concern, it is to include that substance in the candidate list of substances (Article 59(6) of Regulation No 1907/2006). In such event, a stage of identification in the identification procedure under Article 59 of that regulation, dealt with separately by a distinct ECHA body such as the Member State Committee or a separate institution such as the Commission in accordance with paragraphs 8 and 9 of that article, is lacking. However, as the time from which the act identifying a substance as being of very high concern, and resulting from the procedure set out in Article 59 of that regulation, is intended to produce legal effects cannot depend on the submission of comments by a Member State, ECHA or an interested party, it is only after a substance is included in the candidate list of substances that such an act can be capable of producing legal effects.

(see paras 39-41, 43, 46-48, 51)