ORDER OF THE GENERAL COURT (Sixth Chamber)
16 September 2015(*)
(REACH — Fee for registration of a substance — Reduction granted to micro, small and medium-sized enterprises — Error in declaration relating to the size of the enterprise — Decision imposing an administrative charge — Recommendation 2003/361/EC — Action manifestly lacking any foundation in law)
In Case T‑89/13,
Calestep, SL, established in Estepa (Spain), represented by E. Cabezas Mateos, lawyer,
applicant,
v
European Chemicals Agency (ECHA), represented by M. Heikkilä, A. Iber and C. Schultheiss, acting as Agents, assisted by C. Garcia Molyneux, lawyer,
defendant,
ACTION for annulment of Decision SME (2012) 4028 of the ECHA of 21 December 2012, which states that the applicant does not fulfil the conditions to receive a reduction of the fee for small enterprises and imposes an administrative charge on it,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse (Rapporteur) and A.M. Collins, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 29 November 2010, the applicant, Calestep, SL, sought the registration of two substances under 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).
2 During the registration procedure, the applicant indicated that it was a ‘small’ enterprise, for the purposes of Commission Recommendation 2003/361/CE of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 2003 L 124, p. 36). That declaration enabled the applicant to receive a reduction of the fee due for any application for registration under Article 6(4) of Regulation No 1907/2006. In accordance with Article 74(1) of that regulation, that fee was specified by 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 (OJ 2008 L 107, p. 6). Annex I to Regulation No 340/2008 sets out the amounts of the fees due for applications for registration submitted under Article 6 of Regulation No 1907/2006 and the reductions granted to micro, small and medium-sized enterprises. In addition, Article 13(4) of Regulation No 340/2008 provides that, where a natural or legal person that claims to be entitled to a reduction or a fee waiver cannot demonstrate that it is entitled to such a reduction or waiver, the European Chemicals Agency (ECHA) is to levy the full fee or charge as well as an administrative charge. In that connection, on 12 November 2010, the Management Board of the ECHA adopted Decision MB/D/29/2010 on the classification of services for which charges are levied (‘Decision MB/D/29/2010’). According to Article 2 and Table 1 of that decision, as applicable at the material time, the administrative charge referred to in Article 13(4) of Regulation No 340/2008 was EUR 20 700 for a large enterprise, EUR 14 500 for a medium-sized enterprise, EUR 8 300 for a small enterprise and EUR 2 070 for a micro enterprise.
3 On 29 November 2010, the ECHA issued two invoices (Nos 10024188 and 10024196), both for EUR 9 300. That amount corresponded, according to Annex I to Regulation No 340/2008, as applicable at the material time, to the fee payable by a small enterprise, in a joint submission, for substances above 1 000 tonnes.
4 On 28 February 2011, the applicant was requested by the ECHA to supply a certain number of documents for purposes of verifying the declaration by which it had indicated that it was a small enterprise.
5 On 21 December 2012, following an exchange of documents and e-mails, the ECHA sent to the applicant Decision SME (2012) 4028, stating that the applicant did not fulfil the conditions to receive a reduction of the fee for small enterprises and imposing an administrative charge on it (‘the contested decision’). In that decision, the ECHA informed the applicant that it was to be regarded as a medium enterprise and that the ECHA was going to send it an invoice covering the difference between the fee originally paid and the fee ultimately due and an invoice of EUR 14 500 for payment of the administrative charge.
6 In implementation of the contested decision, the ECHA sent to the applicant, on 23 January and 8 February 2013, three invoices, for EUR 6 975, EUR 6 975 and EUR 14 500, respectively.
Procedure and forms of order sought
7 By application lodged at the Registry of the General Court on 18 February 2013, the applicant brought the present action.
8 On 19 February 2013, the applicant lodged an application for interim measures seeking suspension of payment of the invoices of 23 January and 8 February 2013.
9 By order of 11 March 2013 in Calestep v ECHA (T‑89/13 R, EU:T:2013:123), the President of the General Court dismissed that application and reserved the costs.
10 When the composition of the chambers of the General Court was altered, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was consequently assigned on 27 September 2013.
11 On 9 January 2015, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of the General Court of 2 May 1991, the parties were requested to submit their observations on the potential relevance of the judgment of 2 October 2014 in Spraylat v ECHA (T‑177/12, ECR, EU:T:2014:849) for the present dispute and to reply to a question. The parties complied with that request within the prescribed period.
12 The applicant claims that the Court should:
– annul the contested decision;
– order the ECHA to pay the costs.
13 The ECHA contends that the Court should:
– declare the action inadmissible;
– in the alternative, dismiss the action and confirm the legal validity of the contested decision;
– order the applicant to pay the costs.
Law
14 Under Article 126 of its Rules of Procedure, where an action is manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
15 In the present case, the Court considers it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.
The jurisdiction of the General Court
16 As a preliminary point, even though the jurisdiction of the General Court is not challenged by the parties, the General Court considers it appropriate to determine whether it has jurisdiction to hear the present action for annulment. It should be borne in mind in that regard that since the jurisdiction of the General Court is an issue involving an absolute bar to proceeding, the matter may be examined by the Court of its own motion (see judgment of 15 March 2005 in GEF v Commission, T‑29/02, ECR, EU:T:2005:99, paragraph 72 and the case-law cited).
17 Article 94(1) of Regulation No 1907/2006 provides that ‘an action may be brought before the [General Court] or the Court of Justice, in accordance with Article [263 TFEU], contesting a decision taken by the Board of Appeal or, in cases where no right of appeal lies before the Board, by the [ECHA]’.
18 In that regard, Article 91(1) of Regulation No 1907/2006 provides that ‘[a]n appeal may be brought [before the Board of Appeal] against decisions of the [ECHA] taken pursuant to Article 9, Article 20, Article 27(6), Article 30(2) and (3) and Article 51 [of Regulation No 1907/2006]’.
19 The contested decision was not taken under the provisions referred to in Article 91(1) of Regulation No 1907/2006 but under Article 13(4) of Regulation No 340/2008 and Article 2 of Decision MB/D/29/2010. It should also be pointed out that neither Regulation No 340/2008 nor Decision MB/D/29/2010 was adopted under the provisions referred to in Article 91(1) of Regulation No 1907/2006.
20 Furthermore, it should be noted that the provisions of Articles 9, 27, 30 and 51 of Regulation No 1907/2006, referred to in Article 91(1) of that regulation, concern decisions that have no connection with the fee to be paid by registering enterprises.
21 Article 20 of Regulation No 1907/2006 covers the ‘[d]uties of [the ECHA]’. Article 20(5) provides that ‘[a]n appeal may be brought, in accordance with Articles 91, 92 and 93 [of Regulation No 1907/2006], against [ECHA] decisions under paragraph 2 of this Article’. Article 20(2) concerns the check carried out by the ECHA of the ‘completeness’ of each registration, including payment of the fee. It should be noted, however, that that check ‘[does] not include an assessment of the quality or the adequacy of any data or justifications submitted’. Moreover, Article 20(2) Regulation No 1907/2006 provides that if a registration ‘is incomplete’ and the registrant ‘fails to complete his registration within the deadline set’, the ECHA ‘[is to] reject the registration’. In the present case, in addition to the fact that the contested decision is not based on Article 20(2) of Regulation No 1907/2006, it does not reject registration of the substances at issue.
22 Therefore, in the light of all those factors the General Court must be considered to have jurisdiction to hear the present action.
Admissibility of the action
23 The ECHA notes that the application initiating proceedings and the application for interim measures give, as contact details for the applicant’s representative, the applicant’s registered office and an e-mail address of an enterprise belonging to a group of enterprises to which the applicant also belongs. That situation raises doubts as to the independence of the applicant’s representative before the General Court. The documents supplied by the applicant in the reply do not remove the doubts in that regard. In particular, the applicant’s representative might well be registered as an independent lawyer and at the same time have an employment relationship with an employer.
24 In the reply, the applicant states that its representative has been a Member of the Seville Bar (Spain) since 1975 and that he works only for clients whom he himself selects and who receive an invoice to which the corresponding rate of value added tax (VAT) is applied. In other words, no employer-employee relationship exists between the applicant‘s lawyer and the applicant. The decision taken in the application initiating proceedings to give the applicant’s postal and e-mail addresses was made only in order to facilitate communication and has no bearing on the existence of any employer-employee relationship. Furthermore, the applicant attaches to the reply a number of documents concerning its representative’s activity.
25 According to the first, third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of Article 53 of that Statute:
‘The Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.
…
Other parties must be represented by a lawyer.
Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.’
26 Furthermore, the first paragraph of Article 21 of the Statute of the Court of Justice provides as follows:
‘A case shall be brought before the Court of Justice by a written application addressed to the Registrar. The application shall contain the applicant’s name and permanent address and the description of the signatory ...’
27 According to the first subparagraph of Article 43(1) of the Rules of Procedure of 2 May 1991:
‘The original of every pleading must be signed by the party’s agent or lawyer.’
28 According to settled case-law, it is apparent from the provisions cited above, and in particular from the use of the term ‘represented’ in the third paragraph of Article 19 of the Statute of the Court of Justice, that, in order to bring an action before the General Court, ‘a party’, within the meaning of that article, is not permitted to act itself but must use the services of a third person authorised to practise before a court of a Member State or of a State which is a party to the Agreement on the European Economic Area (orders of 5 December 1996 in Lopes v Court of Justice, C‑174/96 P, ECR, EU:C:1996:473, paragraph 11; of 8 December 1999 in Euro-Lex v OHIM (EU-LEX), T‑79/99, ECR, EU:T:1999:312, paragraph 27; and of 19 November 2009 in EREF v Commission, T‑40/08, EU:T:2009:455, paragraph 25).
29 That requirement to use a third person is based on a view of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs. That conception reflects legal traditions common to the Member States and is also to be found in the Union legal order, as is precisely demonstrated by Article 19 of the Statute of the Court of Justice (orders in EU-LEX, paragraph 28 above, EU:T:1999:312, paragraph 28, and EREF v Commission, paragraph 28 above, EU:T:2009:455, paragraph 26).
30 In the present case, even though giving the applicant’s registered office and the e-mail address of an enterprise belonging to the same group as the applicant as contact details for the applicant’s lawyer may, at first sight, raise doubts as to his independence, those doubts are dispelled by the documents produced in the proceedings and the explanations given at the reply stage.
31 It is clear in particular from the documents annexed to the reply that, first, the applicant’s lawyer has been a Member of the Seville Bar since 1975 as a lawyer practising on a self-employed basis (‘por cuenta propia’), which distinguishes him from lawyers practising on an employed basis (‘por cuenta ajena’); secondly, the applicant’s lawyer has his own address, and telephone and fax numbers; thirdly, the applicant’s lawyer declares that he has, in his own name, an employee in the category ‘Administrative assistant’; fourthly, income tax and VAT returns show that the applicant’s lawyer declared other activity as a lawyer that was not connected with the applicant. In addition, the applicant expressly stated in the reply that no employer-employee relationship existed between it and its lawyer.
32 In the light of those factors, the present action must therefore be declared admissible.
Substance
33 The present action is based on a single plea, alleging in essence an error with regard to the classification of the applicant as a ‘medium-sized’ enterprise.
34 More precisely, referring to Article 2(2) of the Annex to Recommendation 2003/361, the applicant maintains that, although the group to which it belongs does employ more than 50 persons, the other conditions concerning the annual turnover or the annual balance sheet total are not met. The applicant should therefore be classified as a ‘small’ and not a ‘medium-sized’ enterprise.
35 The ECHA challenges that interpretation. Article 2(2) of the Annex to Recommendation 2003/361 leaves no doubt that an enterprise can be considered to be a small enterprise only if it fulfils two cumulative conditions, which are that it employs fewer than 50 persons and its annual turnover and/or annual balance sheet total does not exceed EUR 10 million. That is clear from the wording of that article and from EU case-law.
36 As a preliminary point, it should be noted that the applicant challenges only the interpretation of Article 2(2) of the Annex to Recommendation 2003/361, according to which the condition relating to the staffing of the enterprise is a cumulative condition in order for it to be classified as ‘small’.
37 In that regard, both Regulation No 1907/2006 (Article 3) and Regulation No 340/2008 (recital 9 and Article 2) refer to Recommendation 2003/361 for a definition of micro, small and medium-sized enterprises. More particularly, Article 2 of Regulation No 340/2008 provides that a small enterprise is ‘a small enterprise for the purposes of Recommendation 2003/361’.
38 Recommendation 2003/361 contains an annex, Title 1 of which concerns the ‘[d]efinition of micro, small and medium-sized enterprises adopted by the Commission’. Article 2 thereof, is entitled ‘Staff headcount and financial ceilings determining enterprise categories’.
39 Article 2(2) of the Annex to Recommendation 2003/361 provides that ‘a small enterprise is defined as an enterprise which employs fewer than 50 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 10 million’.
40 It is clear from a literal reading of that provision that the criteria relating to the staff headcount of the enterprise (‘the staff headcount criterion’) and to the financial ceilings (‘the financial criterion’) are cumulative criteria within the context of Article 2(2) of the Annex to Recommendation 2003/361. That is clear from the use of the coordinating conjunction ‘and’, which indicates the cumulative nature of the criteria, unlike the use of the conjunction ‘or’, which indicates an alternative nature (see, to that effect, judgments of 17 July 1997 in Ferriere Nord v Commission, C‑219/95 P, ECR, EU:C:1997:375, paragraphs 13 to 15, and of 24 May 2012 in MasterCard and Others v Commission, T‑111/08, ECR, EU:T:2012:260, paragraph 139).
41 Furthermore, it should be pointed out that the staff headcount criterion is a decisive criterion for purposes of determining whether an enterprise is micro, small or medium-sized for the purposes of Recommendation 2003/361. Thus, as the ECHA rightly states in its pleadings, according to recital 4 in the preamble to Recommendation 2003/361, ‘[t]he staff headcount criterion remains undoubtedly one of the most important, and must be observed as the main criterion; introducing a financial criterion is nonetheless a necessary adjunct in order to grasp the real scale and performance of an enterprise and its position compared to its competitors’. It should also be noted that, although Member States, the European Investment Bank (EIB) and the European Investment Fund (EIF) are free, under Article 2 of Recommendation 2003/361, to fix lower ceilings or indeed not to adopt the financial criterion in order to implement certain of their policies, the staff headcount criterion must always be adopted.
42 Lastly, it should be noted that, when interpreting Commission Recommendation 96/280/EC of 3 April 1996 concerning the definition of small and medium-sized enterprises (OJ 1996 L 107, p. 4), which was replaced by Recommendation 2003/361 and which contains, in essence, a similar description of the staff headcount criterion and the financial criterion, case-law has established that those criteria are cumulative (see, to that effect, judgment of 8 July 2004 in Dalmine v Commission, T‑50/00, ECR, EU:T:2004:220, paragraphs 285 and 286).
43 Therefore, the applicant’s interpretation, according to which, in essence, an enterprise which employs more than 50 persons, as in the present case, may be classified as a small enterprise for the purposes of Recommendation 2003/361 is manifestly incorrect.
44 In the light of the above, the single plea put forward by the applicant and, accordingly, the action in its entirety must be dismissed as being manifestly lacking any foundation in law.
Costs
45 Under Article 134(1) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those incurred in the proceedings for interim measures, in accordance with the form of order sought by the ECHA.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The action is dismissed.
2. Calestep, SL is ordered to pay, in addition its own costs, the costs incurred by the European Chemicals Agency (ECHA), including those incurred in the proceedings for interim measures.
Luxembourg, 16 September 2015.
E. Coulon | | S. Frimodt Nielsen |