Case T‑360/13
Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-Verbindungen in der Oberflächentechnik eV (VECCO) and Others
v
European Commission
(REACH — Inclusion of chromium trioxide in the list of substances subject to authorisation — Uses or categories of uses exempted from the authorisation requirement — Concept of ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ — Manifest error of assessment — Proportionality — Rights of the defence — Principle of sound administration)
Summary — Judgment of the General Court (Fifth Chamber), 25 September 2015
1. Judicial proceedings — Intervention — Application not designed to support the form of order sought by one of the parties — Inadmissibility
(Statute of the Court of Justice, Arts 40, fourth para., and 53, first para.; Rules of Procedure of the General Court (2015), Art. 142(1))
2. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Uses or categories of use exempted from the authorisation requirement — Conditions — Existence of specific Community legislation imposing minimum requirements as to the protection of human health or the environment in the case of use of the substance concerned — Concept
(European Parliament and Council Regulation No 1907/2006, Arts 57 and 58(2), and Annex XIV; European Parliament and Council Directives 2004/37, 2010/75 and 2012/18; Council Directive 98/24)
3. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility
(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court (2015), Art. 76(d))
4. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Uses or categories of use exempted from the authorisation requirement — Conditions — Cumulative nature
(European Parliament and Council Regulation No 1907/2006, Art. 58(2))
5. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Uses or categories of use exempted from the authorisation requirement — Conditions — Dismissal of the exemption request where one of the conditions not met — No breach of principle of proportionality
(European Parliament and Council Regulation No 1907/2006, Art. 58(2))
6. Judicial proceedings — Intervention — Application designed to support or reject the pleas of one of the parties — Application containing additional arguments altering the subject-matter of the dispute — Inadmissibility of those arguments
(Statute of the Court of Justice, Arts 40, fourth para., and 53, first para; Rules of Procedure of the General Court (2015), Art. 142(1))
7. Judicial proceedings — Burden of proof — Evidence not produced by the parties — No obligation on the EU judicature to obtain it
(Rules of Procedure of the General Court (2015), Arts 76(f), and 81(e))
8. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — REACH Regulation — Substances of very high concern — Procedure for inclusion in Annex XIV — Public consultation — Right of access of the parties concerned to documents submitted to the European Chemicals Agency or to the Commission —None
(European Parliament and Council Regulations No 1049/2001 and No 1907/2006, Art. 58(4), and Annex XIV)
9. Judicial proceedings — Oral part of the procedure — Reopening — Conditions
(Rules of Procedure of the General Court (2015), Art. 113(2)(c))
1. See the text of the decision.
(see para. 21)
2. In the context of the first condition laid down in Article 58(2) of Regulation No 1907/2006, on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) for the granting of an exemption of a use or category of uses from the authorisation requirement, namely the existence of specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance concerned, ‘Community legislation’ within the meaning of that provision is a rule of law adopted by a European Union entity intended to produce binding effects. It follows that rules belonging to several national legal systems and also to voluntary practices cannot meet the first condition laid down in that provision. Thus, as regards a Commission communication containing information relating to risk evaluation and risk reduction strategies for a substance, since it has no binding content and is not legislative in character, that communication cannot be regarded as Community legislation.
Moreover, the concept of minimum requirement must be understood, first, as constituting a minimum standard in the interest of workers or other persons concerned and, secondly, allowing the adoption or imposition of even stricter measures at national level in the context of legislation that is more stringent than the EU legislation imposing the minimum requirement. Thus, the mere fact of requiring occupational exposure limit values does not imply the application of a maximum requirement, but constitutes a minimum requirement possible within the meaning of Article 58(2) of Regulation No 1907/2006.
In those circumstances, in so far as Directive 98/24 on the protection of the health and safety of workers from the risks related to chemical agents at work does not refer to a particular substance, as is the case of the substances mentioned included in Annex I to that directive, it cannot be considered specific, since it is applicable generally to all chemical substances, nor can it be considered to impose minimum requirements, because it lays down only a general framework for the duties imposed on employers who expose their employees to risks from the uses of chemical substances. Similarly, in so far as In so far as Directive 2004/37 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work does not refer to any substance other than benzene, vinyl chloride monomer or hardwood dusts, it cannot be considered either ‘specific’ or as imposing minimum requirements as regards chromium trioxide.
The same applies to Directive 2012/18 on the control of major-accident hazards involving dangerous substances, which is directed neither at the specific uses of dangerous substances in the context of normal industrial activities of an undertaking as such, nor the protection of humans against too high an exposure to dangerous substances at their workplace. Similarly, as regards Directive 2010/75 on industrial emissions, whilst it may undoubtedly apply in a general way to industrial emissions arising from uses of chromium trioxide, that directive does not contain any specific provision relating to that substance.
(see paras 31, 33, 34, 40, 44, 45, 47, 59, 62, 63)
3. See the text of the decision.
(see para. 55)
4. With regard to the second condition for exemption laid down by Article 58(2) of Regulation No 1907/2006, namely that the risk that is properly controlled on the basis of the existing specific Community legislation, since an exemption may be granted only if all the conditions laid down in that provision are met, where the first condition, concerning the existence of specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance concerned is not met, there is no need to examine that second condition. In addition, as regards the expression ‘compte tenu’ in the French-language version of that provision and the expressions used in other language versions of that provision, the control of the risk must be based on that existing specific Community legislation. If no such legislation exists, it is impossible for any control of the risk, even if proved, to stem from such legislation, which in itself constitutes sufficient grounds for finding that the second condition has not been met.
(see para. 64)
5. Since the Commission does not enjoy any discretion as regards the granting of an exemption under Article 58(2) of Regulation No 1907/2006, because not all of the conditions laid down in that article were met, it also could not have infringed the principle of proportionality in applying that article in the manner required by it. Since the Commission was therefore obliged to take the decision not to grant an exemption, it could not, by dint of that fact, have infringed the principle of proportionality.
(see para. 73)
6. See the text of the decision.
(see para. 75)
7. It is not for the General Court to obtain evidence which has not been furnished by the parties themselves.
(see para. 75)
8. The public consultation provided for by Article 58(4) of Regulation No 1907/2006 does not grant the interested parties specific procedural rights, such as the right of access to documents made available to ECHA or the Commission in the context of the procedure for including substances in Annex XIV to that regulation. Article 58(4) provides only for the right to submit comments. That conclusion is not called into question by the principle of compliance with defence rights in any procedure opened against a person, since the procedure relating to the inclusion of chromium trioxide in Annex XIV to Regulation No 1907/2006 cannot be regarded as ‘proceedings initiated against’ the parties concerned. In addition, the fact that Article 58 of that regulation provides for a public consultation does not call into question the fact that neither ECHA nor the Commission is required, under that article, to hear an individual who might be concerned by a regulation amending Annex XIV. Lastly, concerning Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, that regulation cannot alter the scope of Article 58(4) of Regulation No 1907/2006 and cannot therefore create procedural rights not provided for by that regulation.
(see para. 81, 82)
9. See the text of the decision.
(see para. 88)