Action brought on 20 April 2012 - Spraylat v ECHA
(Case T-177/12)
Language of the case: German
Parties
Applicant: Spraylat GmbH (Aachen, Germany) (represented by: K. Fischer, lawyer)
Defendant: European Chemicals Agency (ECHA)
Form of order sought
The applicant claims that the Court should:
annul the administrative charge made known to it by the defendant on 21 February 2012 (invoice No 10030371);
order the defendant to pay the costs of the proceedings.
As a precautionary claim, the applicant seeks the annulment of Decision SME(2012)1445 of 15 February 2012.
Pleas in law and main arguments
In support of the action, the applicant relies on five pleas in law.
First plea in law: infringement of Regulation (EC) No 1907/2006
2 and of Regulation (EC) No 340/2008
The applicant submits that, as evidenced by both of the regulations, the sole permissible ground for the levying of an administrative charge under Article 13(4) of Regulation No 340/2008 is to cover the costs incurred by the ECHA in verifying a registration in relationship to the size of an undertaking, and that this was not taken into account when determining the administrative charge in accordance with the decision of the ECHA administrative council (MB/29/2010). It further submits that it is not permissible to determine the administrative charge payable on the basis of the size of an undertaking, since this leads to a situation whereby larger undertakings bear the brunt of the costs involved in the evaluation of smaller undertakings.
Second plea in law: infringement of the principle of proportionality
Pursuant to this principle, the levying of an administrative charge by the defendant has to be proportionate to the work involved for the defendant. According to the applicant, a comparison of the fee (EUR 20 700) with the administrative work involved for the defendant, shows that this is not the case.
Third plea in law: infringement of the general principle of equality
In this regard, the applicant submits that the varying administrative charges levied in accordance with the size of an undertaking also constitutes unequal treatment, which is unlawful. Moreover, with the adjustment of its administrative practice, the defendant infringed the principle of equal treatment, in that it treated the applicant differently from other registered undertakings which the defendant permitted, after receiving a registration number, to make adjustments to the size of the undertaking registered so as to avoid the imposition of an administrative charge.
4. Fourth plea in law: infringement of the principle of legal certainty and the right to good administration
Although the defendant realised that, in practice, it is difficult to communicate the correct size of an undertaking for the purposes of registration, it did not provide the applicant with the opportunity - contrary to the right to good administration - to adjust its figures to avoid payment of the administrative charge.
5. Fifth plea in law: unlawful delegation of legislative competencies to the defendant
Article 13(4) of Regulation No 340/2008 empowers the defendant to levy an administrative charge, without specifying the details of how a charge is to be levied or, in particular, any details regarding the charge itself. In the applicant's view, this constitutes an unlawful delegation of legislative competencies to the defendant.
____________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).2 - 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 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ 2008 L 107, p. 6).