ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
10 December 2013 (*)
(Intervention – Interest in the result of the case)
In Case T‑134/13,
Polynt SpA, established in Scanzorosciate (Italy),
Sitre Srl, established in Milan (Italy),
represented by C. Mereu and K. Van Maldegem, lawyers,
applicants,
v
European Chemicals Agency (ECHA), represented by M. Heikkilä, W. Broere and T. Zbihlej, acting as Agents,
defendant,
supported by
European Commission, represented by K. Mifsud-Bonnici and K. Talabér-Ritz, acting as Agents,
and by
Kingdom of the Netherlands, represented by B. Koopman and M. Bulterman, acting as Agents,
interveners,
APPLICATION for partial annulment of Decision ED/169/2012 of ECHA of 18 December 2012 concerning the inclusion of substances of very high concern on the candidate list of substances pursuant to Article 59 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), in so far as it relates to cyclohexane-1,2-dicarboxylic anhydride (EC No 201-604-9), cis-cyclohexane-1,2-dicarboxylic anhydride (EC No 236-086-3) and trans-cyclohexane-1,2-dicarboxylic anhydride (EC No 238-009-9),
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
makes the following
Order
1 By application lodged at the Registry of the General Court on 28 February 2013, the applicants, Polynt SpA and Sitre Srl, brought an action seeking partial annulment of Decision ED/169/2012 of the European Chemicals Agency (ECHA) of 18 December 2012 concerning the inclusion of substances of very high concern on the candidate list of substances pursuant to Article 59 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) (‘the contested decision’), in so far as it relates to cyclohexane-1,2-dicarboxylic anhydride (EC No 201-604-9), cis-cyclohexane-1,2-dicarboxylic anhydride (EC No 236-086-3) and trans-cyclohexane-1,2-dicarboxylic anhydride (EC No 238-009-9) (collectively referred to as ‘HHPA’). That candidate list of substances contains substances meeting the criteria laid down in Article 57 of Regulation No 1907/2006 which were identified with a view to their eventual inclusion in Annex XIV to the regulation, which contains the list of substances subject to authorisation.
2 By document lodged at the Court Registry on 21 June 2013, New Japan Chemical sought leave to intervene in support of the form of order sought by the applicants.
3 That application to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure of the General Court.
4 In its observations lodged at the Court Registry on 22 August 2013, ECHA raised objections to that application.
5 The applicants, for their part, did not raise any objection to that application in their observations lodged at the Court Registry on 27 August 2013.
6 Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Fifth Chamber, to which the present case was consequently assigned.
7 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case.
8 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 or arguments put forward. The ‘result’ of the case 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 its interest in the result of the case is established (see order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26 and the case-law cited).
9 In the present case, New Japan Chemical states that it is a manufacturer of HHPA established in Osaka (Japan) which appointed an only representative for its European-Union-based supply chain pursuant to Article 8 of Regulation No 1907/2006, and which is party to a cooperation agreement with the first applicant to cooperate and share human and financial resources in order to comply with the requirements of Regulation No 1907/2006. It claims that it has a direct and existing interest in the ruling on the form of order sought by the applicants in so far as it considers that the contested decision has given rise to several information and notification obligations, in particular the obligation to update the safety data sheet for HHPA without delay pursuant to Article 31(9) of Regulation No 1907/2006. In addition, according to the applicant for leave to intervene, given that the eventual inclusion of HHPA in Annex XIV to the regulation is inevitable, it will have to ensure that an authorisation is secured, something which will entail significant cost and labour.
10 ECHA disputes that the applicant for leave to intervene has a direct and existing interest in the result of the case. According to ECHA, Regulation No 1907/2006 does not place any obligations on the applicant for leave to intervene because that company is not established in the European Union. ECHA maintains that, since the applicant for leave to intervene has appointed an only representative pursuant to Article 8 of the regulation, that only representative alone is bound by the regulation. The applicant for leave to intervene would therefore be affected only indirectly by the obligations arising from Regulation No 1907/2006. Furthermore, the contested decision does not give rise to an obligation to update the safety data sheet for HHPA pursuant to Article 31(9) of the regulation. In addition, the inclusion of HHPA in Annex XIV to the regulation is merely a future and hypothetical event and is not therefore capable of demonstrating an existing and established interest in the result of the case. According to ECHA, the cooperation agreement concluded between the applicant for leave to intervene and the first applicant does not show a direct and existing interest in the result of the case since that agreement contains only vague obligations which have to be specified in other agreements.
11 First, it must be noted that the fact that the applicant for leave to intervene is not established in the European Union and that it has appointed an only representative pursuant to Article 8(1) of Regulation No 1907/2006 is not such as to exclude it from having a direct and existing interest in the result of the case.
12 The obligations arising from Regulation No 1907/2006 do not, it is true, apply to the applicant for leave to intervene as a manufacturer of HHPA since, as it is not established in the European Union, it is not a manufacturer within the meaning of Article 3(9) of that regulation. Under Article 8(2) of Regulation No 1907/2006, it is the only representative of the applicant for leave to intervene which must comply with all obligations of importers under that regulation. However, it should be noted that the only representative acts solely in the economic interests of the manufacturer which appointed it and that it enjoys its trust (Case C‑558/07 S.P.C.M. and Others [2009] ECR I‑5783, paragraph 66). Consequently, in so far as the inclusion of HHPA on the candidate list of substances by the contested decision amends the obligations arising from Regulation No 1907/2006 which are applicable to importers, in essence that inclusion directly affects, not the economic situation of the only representative, but that of the applicant for leave to intervene.
13 Second, it should be noted that the present action deals with, inter alia, the question whether, by reason of the contested decision’s inclusion of HHPA on the candidate list of substances, new obligations flowing from Regulation No 1907/2006 have been created for manufacturers, importers and downstream users of HHPA, in particular the obligation to update the safety data sheet for HHPA without delay pursuant to Article 31(9) of that regulation. If that were the case, namely if, inter alia, the only representative of the applicant for leave to intervene were obliged to update the safety data sheet for HHPA by reason of the contested decision’s inclusion of those substances on the candidate list of substances, the economic situation of the applicant for leave to intervene would be directly affected by the contested decision.
14 In the light of the foregoing, it must be concluded that New Japan Chemical has set out, to the requisite legal standard, the reasons justifying its interest in the result of the case, without it being necessary to examine whether such an interest also exists for the other reasons put forward by the applicant for leave to intervene. In those circumstances, its application to intervene must be allowed.
15 As the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 4 May 2013, the application to intervene was submitted within the six-week period prescribed in Article 115(1) of those rules. The rights of the applicant for leave to intervene are, therefore, those set out in Article 116(2) to (4) of the Rules of Procedure.
On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. New Japan Chemical is granted leave to intervene in Case T‑134/13 in support of the form of order sought by Polynt SpA and Sitre Srl.
2. The Registrar shall ensure that copies of all the procedural documents are served on the intervener.
3. A period shall be prescribed within which the intervener may submit a statement in intervention.
4. The costs are reserved.
Luxembourg, 10 December 2013.