Action brought on 28 February 2013 - Hitachi Chemical Europe and Others v ECHA
(Case T-135/13)
Language of the case: English
Parties
Applicants: Hitachi Chemical Europe GmbH (Düsseldorf, Germany); Polynt SpA (Scanzorosciate, Italy); and Sitre Srl (Milan, Italy) (represented by: K. Van Maldegem and C. Mereu, lawyers)
Defendant: European Chemicals Agency (ECHA)
Form of order sought
The applicants claim that the Court should:
Declare the application admissible and well-founded;
Partially annul Decision ED/169/2012 of the ECHA concerning the inclusion of Hexahydromethylphthalic anhydride, Hexahydro-4-methylphthalic anhydride, Hexahydro-1-methylphthalic anhydride and Hexahydro-3-methylphthalic anhydride (collectively referred to as "MHHPA") as Substances meeting the criteria set out in Article 57(f) of Regulation (EC) No 1907/2006 ("REACH"), in accordance with Article 59 of REACH, as it relates to MHHPA and its monomers; and
Order the defendant to pay the costs of these proceedings.
Pleas in law and main arguments
In support of the action, the applicants rely on three pleas in law.
First plea in law, alleging manifest error of assessment/law: (i) respiratory sensitisers are not covered by Article 57(f) of REACH and (ii) the ECHA did not provide sufficient justification and evidence in order to demonstrate that MHHPA was of "equivalent concern" to a carcinogen, mutagen or toxicant for reproduction ("CMR"), category 1, since:
CMR substances trigger irreversible effects whereas, in the case of MHHPA, the effects of respiratory sensitisation are not irreversible;
there is no consumer or worker exposure to MHHPA;
the assessment of MHHPA is based on data which is old and outdated;
the assessment did not take into account all relevant data; and
the assessment is mainly based on read across with another substance which is scientifically questionable and which demonstrates the poor and limited data used for the assessment of MHHPA.
Second plea in law, alleging breach of the rights of defence, as the applicants did not have the opportunity to fully defend their case because of the lack of objective criteria for considering whether a substance is of equivalent concern according to Article 57(f) REACH, especially in the case of a respiratory sensitiser such as MHHPA, and because ECHA did not take into account all information available or provided by the industry during the commenting period.
Third plea in law, alleging infringement of the principle of proportionality, as the ECHA had a choice of measures with respect to MHHPA and by identifying MHHPA as Substance of Very High Concern ("SVHC") caused the applicants disadvantages which are disproportionate in relation to the aims pursued.
____________1 - 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)