Action brought on 16 December 2013 – K Chimica v ECHA

(Case T-675/13)

Language of the case: Italian

Parties

Applicant: K Chimica Srl (Mirano (VE), Italy) (represented by: R. Buizza and M. Rota, lawyers)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicant claims that the Court should:

annul ECHA Decision No (2013) 3665 of 15 October 2013 and grant K Chimica SME status;

apply the preferential fees provided for SMEs;

annul invoice No 10029302 in the amount of EUR 9 300 representing the difference due in respect of the full fee tariff applied to K Chimica;

annul the administrative charge in the amount of EUR 19 900 imposed by ECHA by way of invoice No 10043954.

Pleas in law and main arguments

In support of its action, the applicant puts forward two pleas.

First plea, concerning the interpretation of Commission Recommendation No 2003/361 with respect to the criteria for classifying SMEs.

The applicant claim in this regard that, for purposes of classification as an SME, it is necessary to verify whether the target enterprise is an autonomous enterprise or rather forms part of a group of companies. Depending on the role performed by the target enterprise, it will be necessary to evaluate the financial data of the enterprises in the group and, in particular, the financial data of the ‘partner’ enterprises and those of the ‘linked’ enterprises.

On this point, the applicant submits that the basic rule for assessing the size of the target enterprise is the rule according to which, in addition to data relating to its size, the following data are to be added:

the data of any partner enterprise of the target enterprise situated immediately upstream or downstream of the target enterprise, to an extent equivalent to the interest in the capital or percentage of voting rights. 100% of the data of any enterprise ‘linked’ to those ‘partner’ undertakings must be aggregated with the data relating to the target enterprise thus calculated,

100% of the data relating to the enterprises directly or indirectly ‘linked’ to the target enterprise. The data of any partner enterprise of the enterprises linked to the target undertaking immediately upstream or downstream of the target enterprise, to an extent equivalent to the interest in the capital or percentage of voting rights, must be aggregated with 100% of the data relating to the enterprises linked to the target enterprise.

Second plea, concerning the failure to recognise K. Chimica as an SME.

The applicant claims in this regard that, on the basis of Article 6 of the annex to Commission Recommendation No 2003/361, the data relating to K. Chimica’s possible classification as an SME are:

100% of the data relating to K. Chimica;

100% of the data relating to I.C.B. S.r.l;

40% of the data relating to Medini Ltd;

36.66% of the data relating to ALO Inmobilien GmbH.