Appeal brought on 25 February 2021 by PlasticsEurope against the judgment of the General Court (Eighth Chamber) delivered on 16 December 2020 in Case T-207/18, PlasticsEurope v ECHA

(Case C-119/21 P)

Language of the case: English

Parties

Appellant: PlasticsEurope (represented by: R. Cana, avocat, E. Mullier, avocate)

Other parties to the proceedings: European Chemicals Agency, Federal Republic of Germany, French Republic, ClientEarth

Form of order sought

The appellant claims that the Court should:

set aside the judgment of the General Court in Case T-207/18;

annul the contested act;

alternatively, refer the case back to the General Court to rule on the Appellant’s application for annulment;

order the Respondent to pay the costs of these proceedings, including the costs of the proceedings before the General Court, including those of the Interveners.

Pleas in law and main arguments

The margin of discretion which is granted to the European Chemicals Agency (ECHA) in assessing substances for identification as substances of very high concern under Article 57(f) of Regulation (EC) 1907/20061 (the REACH Regulation) cannot be interpreted so as to allow the ECHA complete and unchallengeable free rein to make manifest errors in the selection and assessment of “scientific evidence” under that Article 57(f). However, the General Court has accepted this by ruling that there can only be a finding of manifest error of assessment if the ECHA completely and wrongly disregarded a reliable scientific study and if the inclusion of that study would have altered the overall assessment of the evidence in such a way that the final decision would have been implausible. The General Court further accepted that the results of unreliable scientific studies could be relied upon by the ECHA and that their poor reliability does not preclude their being taken into account. The General Court has gone even further in accepting the reliance on unreliable and inconclusive scientific studies where their results support the ECHA ’s targeted hypothesis about the alleged hazardous property of the substance. In doing so, the General Court erred in law and breached the principle of scientific excellence.

The General Court erred in law and misinterpreted Article 57(f) of the the REACH Regulation as well as breached the Appellant’s right to be heard by misinterpreting the Appellant’s submissions as regards the requirement to establish that the substance is of equivalent level of concern to the effects of substances identified on the basis of Article 57(a) to (e) of the the REACH Regulation .

The General Court erred in law in the assessment of the evidence related to the Appellant’s submissions as regards the reliability of scientific studies and distorted the evidence before it.

By considering that the ECHA’s assessment of scientific evidence would be supported by the precautionary principle, the General Court misinterpreted that principle and thus erred in law.

The General Court erred in law by ruling that intermediates are not exempt from identification pursuant to Articles 57 and 59 of the REACH Regulation on the ground that these provisions only target the intrinsic properties of a substance and not its use (which would include whether or not the substance is an intermediate) and that it was not disproportionate for the ECHA to do so.

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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).