Language of document : ECLI:EU:T:2018:731

ORDER OF THE GENERAL COURT (Fifth Chamber)

2 October 2018 (*)

(REACH — Inclusion of the substance bisphenol A in the list of substances identified for eventual inclusion in Annex XIV to Regulation (EC) No 1907/2006 — Articles 57 and 59 of Regulation No 1907/2006 — Application to intervene — Environmental organisation — Interest in the result of the case)

In Case T‑207/18,

PlasticsEurope, established in Brussels (Belgium), represented by R. Cana, F. Mattioli and E. Mullier, lawyers,

applicant,

v

European Chemicals Agency (ECHA), represented by M. Heikkilä, W. Broere and by C. Buchanan, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU seeking the annulment of a decision of the ECHA of 3 January 2018, published on 15 January 2018, taken by the Executive Director of the ECHA by which the existing entry relating to the substance 4,4’-isopropylidenediphenol (bisphenol A or BPA) on the list of identified substances with a view to their eventual inclusion in Annex XIV to 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, corrigendum OJ 2007 L 136, p. 3), was supplemented to the effect that that substance is also identified as a substance with endocrine-disrupting properties that may have serious effects on the environment, within the meaning of Article 57(f) of that regulation,

THE GENERAL COURT (Fifth Chamber),

composed of D. Gratsias, President, A. Dittrich (Rapporteur) and P.G. Xuereb, Judges,

Registrar: E. Coulon,

makes the following

Order

 Facts and proceedings

1        On 12 January 2018, the European Chemicals Agency (ECHA) published on its website a decision of 3 January 2018 concerning the inclusion of bisphenol A (ED/01/2018) in the ‘candidate list of substances’, namely the list of substances identified for eventual inclusion in Annex XIV to 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, corrigendum OJ 2007 L 136, p. 3), as amended, on the ground that that substance had been identified as toxic for reproduction for the purposes of Article 57(c) of Regulation No 1907/2006.

2        The applicant brought an action for the annulment of that decision. That action is currently pending before the Court in Case T‑185/17.

3        On 7 July 2017, ECHA published on its website a decision of 6 July 2017 (ED/30/2017), updating and supplementing the existing entry for bisphenol A in the candidate list of substances and identifying that substance as a substance with endocrine-disrupting properties for which there is scientific evidence of probable serious effects on human health which give rise to an equivalent level of concern to that of other substances listed in Article 57(a) to (e) of Regulation No 1907/2006 within the meaning of Article 57(f) of the regulation.

4        The applicant brought an action for the annulment of that decision. That action is currently pending before the Court in Case T‑636/17.

5        On 15 January 2018, ECHA published on its website a decision of 3 January 2018 (ED/01/2018), updating and supplementing the existing entry for bisphenol A in the candidate list of substances and identifying that substance as a substance with endocrine-disrupting properties for which there is scientific evidence of probable serious effects on the environment which give rise to an equivalent level of concern to that of other substances listed in Article 57(a) to (e) of Regulation No 1907/2006 within the meaning of Article 57(f) of the regulation (‘the contested decision’).

6        On 23 March 2018, the applicant, PlasticsEurope, brought an action for annulment pursuant to Article 263 TFEU against the contested decision.

7        On 4 June 2018, pursuant to Article 79 of the Rules of Procedure of the General Court, a notice was published in the Official Journal of the European Union indicating the date of lodging of the application initiating proceedings in the present case and the names of the main parties (OJ 2018 C 190, p. 35). The form of order sought in the application and a summary of the applicant’s pleas in law were also published.

8        By document lodged at the Court Registry on 19 July 2018, ClientEarth applied for leave to intervene in support of the form of order sought by ECHA.

9        That application was served on the applicant and on ECHA, in accordance with Article 144(1) of the Rules of Procedure.

10      By document lodged at the Court Registry on 21 August 2018, ECHA stated that, particularly in the light of the orders of the General Court of 1 December 2017, PlasticsEurope v ECHA, T‑185/17, not published, EU:T:2017:863, and of 5 March 2018, PlasticsEurope v ECHA, T‑636/17, not published, EU:T:2018:154, it did not oppose ClientEarth’s application for leave to intervene in the present case.

11      By document lodged at the Court Registry on 27 August 2018, the applicant submitted, in essence, that ClientEarth had not sufficiently demonstrated that it had an interest in the result of the present case.

12      By separate document lodged at the Court Registry on 27 August 2018, the applicant requested confidential treatment vis-à-vis ClientEarth of certain elements in the application and the annexes thereto.

 Law

13      Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of a case other than a dispute between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case.

14      It is settled case-law that the concept of an interest in the result of the case, within the meaning of that provision, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is established (see order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, EU:T:2014:920, paragraph 21 and the case-law cited).

15      In addition, it must be noted that, generally, an interest in the result of the case can be considered to be sufficiently direct only if that result is capable of altering the legal position of the applicant to intervene (order of the Vice-President of the Court of Justice of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 7).

16      According to case-law, in so far as concerns applications for leave to intervene submitted by organisations for the protection of the environment, the requirement for a direct and present interest in the result of the case means either that the scope of the activities of such organisations should coincide with that of the region and sector concerned by the proceedings before the General Court or, where the scope of their activities is wider, that they should be actively involved in protection programmes or studies relating to the region and sector concerned, the viability of which may be jeopardised if the contested measure were adopted (see order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, EU:T:2014:920, paragraph 73 and the case-law cited).

17      ClientEarth’s application to intervene must be examined in the light of that case‑law.

18      First, it is apparent from ClientEarth’s application to intervene, in particular, that it is a non-profit-making, non-governmental organisation, the objective of which is to protect the environment. Pursuant to its by-laws, ClientEarth’s activities focus on promoting, assisting, undertaking, and commissioning research into law, practice, and the administration of justice, in connection with the environment and matters relating thereto, including the impact, direct or indirect, of any human activity on the environment. In particular, it is apparent from ClientEarth’s annual reports that, since 2010, it has initiated a programme on toxic products and that its activities cover actions relating to legal mechanisms to ensure that a precautionary approach is applied to decisions relating to chemicals. In that regard, it focuses particularly on the authorisation procedure under Regulation No 1907/2006, for the use of certain substances.

19      In the second place, in support of its application to intervene, ClientEarth maintains, in particular, that on 24 April 2017, it lodged with ECHA a report concerning the identification of bisphenol A as an endocrine disruptor of very high concern for the purposes of Article 57(f) of Regulation No 1907/2006.

20      It may be concluded from all the above circumstances that the second of the alternative conditions set out in the case-law referred to in paragraph 16 above is fulfilled.

21      First, it follows from the factors referred to in paragraph 18 above, and from the report of 24 April 2017, that ClientEarth is actively involved in protection programmes or studies concerning the relevant sector seeking, inter alia, to protect human health from the adverse effects of bisphenol A, which the present dispute concerns.

22      Secondly, it must be concluded that the matters established in that report and its programme concerning toxic products could be called into question if the contested decision were annulled.

23      In the light of the foregoing it must be considered that ClientEarth is directly affected by the contested decision and that it has a direct, existing interest in the form of order sought by ECHA. Consequently, ClientEarth’s application to intervene must be granted.

 The request for confidential treatment

24      The applicant has applied, in accordance with Article 144(2) of the Rules of Procedure, for certain confidential information in the file not to be notified to ClientEarth and has submitted, for the purposes of that notification, a non-confidential version of the pleadings and documents in question.

25      At this stage, the notification to ClientEarth of procedural documents already served or to be served on the parties must therefore be confined to the non-confidential versions. A decision on the merits of the request for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations which may be submitted on that issue.

 Costs

26      Under Article 133 of the Rules of Procedure, a decision as to costs shall be given in the final judgment or in the order closing the proceedings. The present order does not close the proceedings either in respect of ClientEarth or in respect of the other parties to the proceedings. The costs must therefore be reserved.

On those grounds,

THE GENERAL COURT (Fifth Chamber),

hereby orders:

1.      ClientEarth is granted leave to intervene in Case T207/18 in support of the form of order sought by the European Chemicals Agency (ECHA).

2.      The Registrar shall send ClientEarth a non-confidential version of each procedural document served on the parties.

3.      A period shall be prescribed within which ClientEarth may submit a statement in intervention without prejudice to the possibility of its supplementing that statement at a later date, should the need arise, following a decision on the merits of the application for confidential treatment.

4.      A period shall be prescribed within which ClientEarth may lodge any observations on PlasticsEurope’s application for confidential treatment. A decision on the merits of that application is reserved.

5.      The costs shall be reserved.

Luxembourg, 2 October 2018.

E. Coulon

 

D. Gratsias

Registrar

 

President


*      Language of the case: English.