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Action brought on 18 August 2010 - Etimine and Etiproducts v ECHA

(Case T-343/10)

Language of the case: English

Parties

Applicants: Etimine SA (Bettembourg, Luxembourg) and Ab Etiproducts Oy (Espoo, Finland), (represented by: K. Van Maldegem and C. Mereu, lawyers)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

-     Declare the application admissible and well-founded;

Annul the contested act as it relates to Boric Acid and Disodium Tetraborates;

Declare the illegality of Commission Regulation (EC) No 790/2009¹ of 10 August 2009 insofar as it relates to Boric Acid and Disodium Tetraborates; and

Order ECHA to pay all the costs and the expenses of these proceedings.

Pleas in law and main arguments

The applicants seek, pursuant to Article 263 TFEU, the annulment of the decision of European Chemicals Agency to include Boric Acid and Disodium Tetraborates in the candidate list of substances established under Article 59 of Regulation (EC) No 1907/2006². In addition, the applicants seek, pursuant to Article 277 TFEU, a declaration as to the illegality of Commission Regulation (EC) No 790/2009 of 10 August 2009 insofar as it relates to Boric Acid and Disodium Tetraborates.

In support of their application, the applicants put forward the following pleas in law:

Firstly, the contested act was adopted in breach of essential procedural requirements and as an error of law because it failed to fulfil the requirements of Article 59 and Annex XV of Regulation (EC) No 1907/2006.

Secondly, the contested act is based on a manifest error of assessment and is in breach of Regulation (EC) No 1907/2006 because ECHA failed to produce evidence and demonstrate that the Borate Substances "meet the criteria" for classification as toxic to reproduction category 2 under Directive 67/548³.

In addition, by adopting the contested act, ECHA infringed the EU law principle of proportionality.

Finally, the contested act is based on Commission Regulation (EC) No 790/2009 which is in itself unlawful.

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¹ - Commission Regulation (EC) No 790/2009 of 10 August 2009 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2009 L 235, p. 1).

² - 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).

³ - Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 1967 196, p. 1)