Action brought on 3 October 2011 - Igcar Chemicals v ECHA

(Case T-526/11)

Language of the case: Spanish

Parties

Applicant: Igcar Chemicals, SL (Rubí, Spain) (represented by: L. Fernández Vaissieres, lawyer)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicant claims that the General Court should:

declare that the action is well-founded and admissible;

annul in part the contested decision, insofar as it refers to the issuing of an invoice for administrative charges, and annul that invoice;

order the ECHA to pay the costs.

Pleas in law and main arguments

This action has been brought against the Decision of the European Chemicals Agency ('ECHA') number SME (2011) 0572, dated 3 August 2011, and for the related cancellation of the invoice for administrative charges (invoice number 10028302 of 5 August 2011).

It is noted in that respect that the applicant pre-registered various substances that it intended to register. Prior to the latter registration, the applicant was incorrectly recorded as a small enterprise.

In June 2011, on the basis of Article 13(3) of 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) (the 'Charges Regulation'), the Agency requested the applicant to show that it had the right to the reduction in registration charges that had been applied. The applicant confirmed that its size corresponded to that of a medium-sized enterprise, a matter which it had voluntarily corrected in the REACH-IT system prior to receiving the abovementioned request from the ECHA.

In support of the action, the applicant relies on five pleas in law.

First plea in law, concerning the European Commission's lack of competence to delegate the imposition of an administrative charge to the ECHA and the ECHA's lack of competence to adopt Decision MB/29/2010 of its Management Board of 12 November 2010 ('on the classification of services for which charges are levied').

The applicant alleges in that regard that, by providing in Article 13(4) of the Charges Regulation that the ECHA is to levy an administrative charge distinct from the registration charge, which is the only charge that is permitted by the provisions establishing the ECHA, the Commission goes beyond that which is permitted by those provisions, and in that regard Article 114 TFEU is not a sufficient basis for the competence of the Commission or the ECHA.

Second plea in law, concerning the unlawfulness of the delegation of powers contained in Article 13(4) of the Charges Regulation.

The applicant alleges in that regard that the provision referred to leaves it to the discretion of the ECHA to establish an administrative charge without defining its objectives, content, scope or duration, which renders Article 2 of Decision MB/29/2010, and in particular Table 1 in the Annex thereto, unlawful.

Third plea in law, concerning the punitive nature of Decision MB/29/2010.

The applicant alleges in that regard that, although pursuant to Article 74(1) of the ECHA basic regulation the Agency is authorised to charge for the services it supplies, in accordance with Article 74(3) of that text the charges are to be fixed in such a way as to ensure that the revenue derived from them, when combined with other sources of the Agency's revenue, is sufficient to cover the cost of the services delivered. However, an administrative charge for the ECHA's prior checks in the fixed amount of EUR 14 500 cannot be justified and is disproportionately high in relation to the services delivered. Rather, those administrative charges are in the nature of a penalty.

Fourth plea in law, concerning infringement of the principle of legal certainty.

It is alleged in that respect that the REACH-IT system did not provide sufficient information to enterprises to enable them to know the penalties which may be incurred in respect of the obligation they are under to verify their size. Moreover, the Agency did not take into account either the applicant's lack of intention or the voluntary correction of the error made.

Fifth plea in law, concerning infringement of the principle of proportionality in the establishment of the administrative charges concerned.

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