Action brought on 7 December 2016 — Fertisac v ECHA

(Case T-855/16)

Language of the case: Spanish

Parties

Applicant: Fertisac, SL (Atarfe, Spain) (represented by: J. Gómez Rodríguez, lawyer)

Defendant: European Chemicals Agency

Form of order sought

The applicant claims that the Court should:

Annul ECHA Decision No SME (2016) 5150 of 15 November 2016 declaring that FERTISAC SL did not fulfil the requirements for the fee reduction provided for medium-sized enterprises and requiring it to pay an administrative fee.

Annul ECHA invoice No 10060160 of 15 November 2016, issued on the basis of ECHA Decision No SME (2016) 5150, in the amount corresponding to the difference between the fee paid by FERTISAC SL and the fee payable for a large enterprise.

Annul ECHA invoice No 10060161 of 15 November 2016 which determines the administrative fee in accordance with ECHA Decision No SME (2016) 5150.

Order the European Chemicals Agency (ECHA) to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

First plea in law, alleging an error in the classification of FERTISAC SL as a large enterprise.

The applicant claims in this regard that Article 2(1) of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 2003 L 124, p. 36) (EC) provides that the category of micro, small and medium-sized enterprises (SMEs) is constituted by enterprises that employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million or an annual balance sheet not exceeding EUR 43 million.

There are two threshold criteria to be met for an undertaking to be classified as an SME. It is not just a question of meeting only one of those criteria (as follows from the decision of the ECHA, inasmuch as it applied only one of those criteria: the annual turnover), clearly overlooking the first requirement, namely, the number of persons, which is clearly differentiated by the conjunction ‘and’. However, at no time has FERTISAC SL exceeded the threshold of employing more than 250 persons.

Second plea in law, alleging misinterpretation by the defendant of Recommendation 2003/361.

The applicant claims in this regard that in order to determine its size only the data of the applicant and its associates should be taken into account. The applicant is not part of a group of enterprises. The user guide on the definition of a SME published by the European Commission confirms that interpretation. Moreover, Article 3 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 76/796/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC and recital 9 and Article 2 of Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ 2008 L 107, p. 6), refer to Recommendation 2003/361 for the purposes of defining SMEs.

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