ORDER OF THE GENERAL COURT (Sixth Chamber)
1 June 2015 (*)
(Actions for annulment — Environment — Criteria for the award of the EU Ecolabel — Converted paper products — Excluded or limited substances and mixtures — Concentration limits for residual monomers — Article 263, fourth paragraph, TFEU — Lack of individual concern — Inadmissibility)
In Case T‑573/14,
Polyelectrolyte Producers Group, established in Brussels (Belgium),
SNF SAS, established in Andrézieux-Bouthéon (France),
represented by R. Cana and A. Patsa, lawyers,
applicants,
v
European Commission, represented by K. Mifsud-Bonnici and G. Zavvos, acting as Agents,
defendant,
ACTION for partial annulment of Commission Decision 2014/256/EU of 2 May 2014 establishing the ecological criteria for the award of the EU Ecolabel for converted paper products (OJ 2014 L 135, p. 24),
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 The first applicant, Polyelectrolyte Producers Group, is a European Economic Interest Grouping which is established in Belgium. It represents the interests of companies which produce or import polyelectrolytes. A number of the grouping’s members produce and market polyamines.
2 The second applicant, SNF SAS, is a member company of the first applicant. It produces and markets polyamines.
3 Polyelectrolytes are synthetic organic polymers which are soluble in water and produced using monomers. Polyelectrolytes include monomer-based polyamines such as epichlorohydrin and dimethylamine. Polyamines are used in the manufacture of paper as retention aids and strengtheners.
4 The EU Ecolabel scheme is part of the EU policy on sustainable consumption and production. It is intended to promote those products which have a high level of environmental performance through the use of the EU Ecolabel. The scheme is a voluntary one under which undertakings wishing to do so may enhance the environmental performance of their products.
5 Regulation (EC) No 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel (OJ 2010 L 27, p. 1) introduced changes to the Ecolabel scheme which had been introduced by Regulation (EC) No 1980/2000 of the European Parliament and of the Council of 17 July 2000 on a revised Community eco-label award scheme (OJ 2000 L 237, p. 1).
6 Commission Decision 2014/256/EU of 2 May 2014 establishing the ecological criteria for the award of the EU Ecolabel for converted paper products (OJ 2014 L 135, p. 24) (‘the contested decision’) was adopted on the basis of Article 8(2) of Regulation No 66/2010, which provides that the European Commission is to adopt measures to establish specific EU Ecolabel criteria for each product group.
7 Article 6 of the contested decision states that the decision is addressed to the Member States.
8 The Annex to the contested decision lays down the criteria for the award of the EU Ecolabel to converted paper products, including criterion number 3, pertaining to excluded or limited substances and mixtures. Those substances and mixtures include residual monomers under the heading ‘Criterion B3(e)’. It is provided that the total quantity of residual monomers, excluding acrylamide, must not exceed a concentration of 100 particles per million (ppm), calculated on the basis of their solid content, when they are present in certain substances used in the manufacture of converted paper products.
9 Assessment and verification requirements for the criterion relating to residual monomers are also laid down in the Annex to the contested decision, including inter alia the requirement that applicants for an Ecolabel must provide from their chemical supplier(s) a declaration of compliance with that criterion, together with appropriate documentation.
Procedure and forms of order sought
10 By application lodged at the Registry of the General Court on 31 July 2014 the applicants brought the present action.
11 By separate document lodged at the Court Registry on 21 October 2014 the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure of the General Court. The applicants lodged their observations on that objection on 8 December 2014.
12 The applicants claim that the Court should:
– dismiss the objection of inadmissibility raised by the Commission;
– in the alternative, reserve its decision on that objection until the final judgment;
– annul the contested decision;
– order the Commission to pay the costs.
13 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicants to pay the costs.
Law
14 Under Article 114(1) and (4) of the Rules of Procedure, if a party submits a separate document seeking a ruling from the Court on inadmissibility, the Court may then rule on the application or reserve its decision for the final judgment.
15 In the present case, the Court has decided to rule on the plea of inadmissibility submitted by the Commission without going to the substance of the case.
16 Under the fourth paragraph of Article 263 TFEU, ‘[a]ny natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.
17 In the present case, it is common ground that the contested decision was not addressed to the applicants, who accordingly are not addressees thereof. That being the case, in accordance with the fourth paragraph of Article 263 TFEU, the applicants may institute proceedings for annulment of that act only if that act is of direct concern to them.
18 The applicants claim that the contested decision directly affects their legal situation, first, because they cannot sell their customers products containing a concentration of residual monomers above the 100 ppm limit meeting certain specified risks and, secondly, they must provide prospective EU Ecolabel applicants with declarations of compliance about the quantities of residual monomers in their products. They also consider that the Member States, who are the addressees of the contested decision, do not have any discretion with respect to the application of the criteria laid down in the contested decision.
19 The Commission contends that the contested decision produces effects only on the situation of those operators which have applied for the EU Ecolabel and that the operators on the relevant market as a whole cannot be directly concerned, especially since the EU Ecolabel scheme is voluntary. The applicants’ factual situation as suppliers of monomer-based polyamines to producers of converted paper products is not relevant to the determination of whether they are directly affected.
20 It is apparent from settled case-law that, for a person to be directly concerned by a contested measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see judgment of 5 May 1998 in Dreyfus v Commission, C‑386/96 P, ECR, EU:C:1998:193, paragraph 43 and the case-law cited).
21 It is also well settled case-law that the act in question must directly affect the legal situation of the individual by producing binding legal effects for that individual (see, to that effect, judgment of 3 October 2013 in Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, ECR, EU:C:2013:625, paragraph 56 and the case-law cited).
22 It must therefore be considered whether the contested decision, in so far as it fixes at 100 ppm the maximum concentration of residual monomers present in certain substances used in the manufacture of converted paper products and requires the submission of an appurtenant declaration of compliance in order for the EU Ecolabel to be awarded, is liable to directly affect the legal situation of the applicants by producing binding legal effects for them.
23 It is clear from recital 5 in the preamble to Regulation No 66/2010 that the EU Ecolabel scheme forms part of the European Union’s policy on sustainable consumption and production, which aims at reducing the negative impact of consumption and production on the environment, health, climate and natural resources. That scheme is intended to promote those products which have a high level of environmental performance through the use of the EU Ecolabel (order of 24 June 2014 in PPG and SNF v ECHA, T‑1/10 RENV, EU:T:2014:616, paragraph 44).
24 Thus, under Article 9 of that regulation, any operator who wishes to use the EU Ecolabel must submit an application to the competent national authorities.
25 Moreover, Article 3 of the contested decision states that, in order to be awarded the EU Ecolabel, an item of converted paper product must inter alia comply with the criteria and the related assessment and verification requirements set out in the Annex thereto.
26 The Annex to the contested decision sets out inter alia the criterion relating to the maximum levels of residual monomers and the related assessment and verification requirements, as described in paragraphs 8 and 9 above.
27 It is, moreover, common ground, as stated in paragraphs 1 and 2 above, that neither the member companies of the first applicant nor the second applicant are active operators in the manufacture, import or marketing of converted paper products who may apply for an Ecolabel for those products under the contested decision. Therefore, the contested decision is not liable to directly affect the legal situation of the applicants by producing binding legal effects for them.
28 It is only if producers or marketers of converted paper products wish to apply for an Ecolabel for those products that the criteria and requirements laid down in the contested decision apply. It is for them, and not their suppliers, to submit the Ecolabel application to a competent body and to prove that the products in question fulfil the criteria laid down in the contested decision by providing the necessary documentation. Then it will be for the competent body to verify that the documentation submitted is complete and that the products in question satisfy the criteria laid down in the contested decision, requesting additional information if necessary.
29 Although the contested decision refers to a declaration issued by the supplier(s) of chemical substances to the effect that the substances comply with the criterion in question, it does not impose any obligation on them. It specifies that it is the applicant wishing to obtain an Ecolabel for its products who must provide that declaration and the appropriate documentation.
30 The EU Ecolabel scheme is, moreover, voluntary. Accordingly, no binding legal effect can result directly from the contested decision for companies which, like the applicants, are situated upstream from companies which are active in the production and marketing of converted paper products, which may avail themselves of such a scheme.
31 Under the contested decision, compliance with the ecological criteria and assessment and verification requirements is required only in the event that the operators manufacturing converted paper products wish to obtain the EU Ecolabel for those products. Thus, the contested decision cannot be regarded as establishing a specific scheme for converted paper products or the substances used in their manufacture, with the result that all those products or substances are subject to specific mandatory provisions (see, to that effect, order of 21 September 2011 in Borax Europe v ECHA, T‑346/10, ECR, EU:T:2011:510, paragraph 44). Therefore, the contested decision does not affect the marketing or use of the converted paper products or the substances used in their manufacture.
32 In so far as the applicants’ arguments are to be construed as aimed at establishing that the contested decision is of direct concern to them because it could have economic repercussions on their activities as suppliers of substances used in the manufacture of converted paper products, it should be noted that the mere fact that an act may have economic repercussions on an applicant’s activities is not sufficient to establish that that applicant is directly concerned by that act (see, to that effect, order of 6 September 2011 in Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, ECR, EU:T:2011:419, paragraph 75).
33 In the light of the foregoing, the conclusion is that the contested decision does not produce direct binding legal effects on the legal situation of the applicants. Since the first criterion for being directly affected is not fulfilled, the contested decision is not of direct concern to the applicants.
34 Consequently, the applicants do not have locus standi to bring an action for annulment of the contested decision and the action must be dismissed as inadmissible.
Costs
35 Under Article 87(2) 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 applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. Polyelectrolyte Producers Group and SNF SAS shall bear their own costs and pay those incurred by the European Commission.
Luxembourg, 1 June 2015.
E. Coulon | | S. Frimodt Nielsen |