Case T-539/08

Etimine SA and AB Etiproducts Oy

v

European Commission

(Action for annulment – Environment and protection of human health – Classification, packaging and labelling of certain borates as dangerous substances – Directive 2008/58/EC – Directive 67/548/EEC – Regulation (EC) No 790/2009 – Regulation (EC) No 1272/2008 – Amendment of form of order sought – Temporal application of the fourth paragraph of Article 263 TFEU – No individual concern – Inadmissibility)

Summary of the Order

1.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Possibility of basing an action brought before the entry into force of the Treaty of Lisbon on the fourth paragraph of Article 263 TFEU – None

(Arts 230, fourth and fifth paras, EC and 263, fourth para., TFEU)

2.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Possibility of being directly and individually concerned by a general measure – Conditions – Measures concerning procedures for the evaluation of risks and classification of dangerous substances

(Art. 230 EC)

3.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Possibility of being directly and individually concerned by a general measure – Conditions – Measures concerning procedures for the evaluation of risks and classification of dangerous substances

(Art. 230, fourth para., EC)

1.      The FEU Treaty does not lay down any specific transitional provisions on whether the fourth paragraph of Article 263 TFEU is to apply to judicial proceedings pending on 1 December 2009. As regards specifically the question of the temporal application of the rules determining the conditions of admissibility of an action for annulment brought by an individual before the European Union judicature, first, in accordance with the maxim tempus regit actum the question of the admissibility of an application must be resolved on the basis of the rules in force at the date on which it was submitted and, second, the conditions of admissibility of an action are judged at the time of bringing the action, that is, the lodging of the application, a defect in which can be rectified only before the expiry of the period for bringing proceedings. Consequently, where, at the time of bringing an action for annulment, namely both the lodging of the original application and the lodging of the application for leave to amend the form of order and pleas in law, the conditions of its admissibility were governed by Article 230 EC, the question of the applicants’ standing to bring proceedings for the annulment of the contested acts must be resolved on the basis of that article.

(see paras 75-76, 78)

2.      Where a decision affects a group of persons who were identified or identifiable when a general measure as referred to in Article 230 EC was adopted by reason of criteria specific to the members of the group, those persons may be individually concerned by that act inasmuch as they form part of a limited class of economic operators. However, the fact that it is possible to determine more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that that measure must be regarded as being of individual concern to those persons where it is established that that application takes effect by virtue of an objective legal or factual situation defined by the act in question. Thus the existence of exclusive rights to import or market borates from a non-member country in the European Union is not as such capable of distinguishing the rightholder individually, in particular where other operators may enjoy similar rights.

Since the applicants, who are operators holding borate mining rights affected by the act classifying that product as a dangerous substance, have neither identified other operators holding similar rights, nor specified the reasons why, having regard to the attributes peculiar to them, those operators could form a limited class, nor shown that the classifications in question had the purpose or consequence of affecting the scope of the exclusive rights relied on or even of preventing them from being exercised, they cannot be regarded as individually concerned within the meaning of Article 230 EC by the act in question.

The classifications in question do not interfere with the applicants’ exclusive rights to import and market the borate substances in the European Union. The mere fact that the classifications may make the exercise of those exclusive rights more difficult is not sufficient to distinguish the applicants individually within the meaning of the fourth paragraph of Article 230 EC, since a priori they affect in the same way all operators who carry on or may carry on activities involving the import and/or marketing of borate substances in the European Union, whether or not they enjoy exclusive rights to do so. In that respect, the possibility that the applicants will suffer an economic disadvantage – even a serious one – as a result of the contested classifications is not enough to show that those classifications distinguish them individually from all other operators who might be exposed to similar consequences. Finally, the circumstance that an applicant is the largest importer of borates in the European Union cannot distinguish it individually from other importers either. A smaller operator with similar distribution rights will be exposed to comparable economic difficulties, since the classifications affect all operators in that capacity and in proportion to their size and the extent of their commercial activities in connection with borates.

(see paras 100-101, 104-107)

3.      The fact that a person participates in the process by which a European Union measure is adopted does not distinguish him individually with regard to the measure in question unless provision has been made under the European Union rules for procedural guarantees in his favour. As regards Directive 2008/58 amending, for the purpose of its adaptation to technical progress, for the 30th time, Directive 67/548 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, the relevant procedural rules defining the process of its adoption do not lay down such procedural guarantees for the benefit of operators who might be affected by the outcome of a procedure for adapting Directive 67/548 to technical progress. Moreover, Articles 6 to 10 of Regulation No 793/93 on the evaluation and control of the risks of existing substances, which relate to the risk evaluation procedure, a separate procedure from that for the classification of a substance, do not apply to the procedure for the classification of a substance as a dangerous substance and cannot therefore be relied on with respect to the applicants’ active participation in the procedure. Those provisions do not lay down any procedural guarantees applicable for the purposes of the classification of a substance as a dangerous substance under Directive 67/548 or Regulation No 1272/2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548 and 1999/45, and amending Regulation No 1907/2006. Consequently, those provisions cannot distinguish the applicants individually with respect to the classifications against which an action for annulment is directed under Article 230 EC, since those classifications are the result not of the risk evaluation procedure under Regulation No 793/93 but of the separate procedures for adapting Directive 67/548 and Regulation No 1272/2008 respectively to technical progress, in the context of which the applicants have no such guarantees.

(see paras 109, 112, 114-116)