Symphony Environmental Technologies plc and Symphony Environmental Ltd v European Parliament and Others.

• Jurisdiction: European Union
• Date: 31 January 2024
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (First Chamber, Extended Composition)

31 January 2024 (*)

(Non-contractual liability – Environment – Directive (EU) 2019/904 – Prohibition on the placing on the market of products made from oxo-degradable plastic – Sufficiently serious breach of a rule of law intended to confer rights on individuals – No distinction between products made from oxo-degradable plastic and products made from oxo-biodegradable plastic – Impact assessment – Equal treatment – Proportionality)

In Case T‑745/20,

Symphony Environmental Technologies plc, established in Borehamwood (United Kingdom),

Symphony Environmental Ltd, established in Borehamwood,

represented by P. Selley, Solicitor, J. Holmes King’s Counsel, and J. Williams, Barrister-at-law,

applicants,

v

European Parliament, represented by L. Visaggio, C. Ionescu Dima and W. Kuzmienko, acting as Agents,

Council of the European Union, represented by A. Maceroni and M. Moore, acting as Agents,

and

European Commission, represented by R. Lindenthal and L. Haasbeek, acting as Agents,

defendants,

THE GENERAL COURT (First Chamber, Extended Composition),

composed of M. Van der Woude, President, D. Spielmann, V. Valančius, I. Gâlea (Rapporteur) and T. Tóth, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure,

further to the hearing on 20 March 2023,

having regard, following the departure from office of Judge Valančius on 26 September 2023, to Article 22 and Article 24(1) of the Rules of Procedure of the General Court,

gives the following

Judgment

1 By their action based on Article 268 TFEU, the applicants, Symphony Environmental Technologies plc and Symphony Environmental Ltd, seek compensation for the damage that they claim to have suffered as a result of the adoption of Article 5 and recital 15 of Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (OJ 2019 L 155, p. 1), in so far as the prohibition on the placing on the market of products made from oxo-degradable plastic laid down in Article 5 and recital 15 applies to oxo-biodegradable plastic.

I. Background to the dispute

2 The applicants are companies established in the United Kingdom, whose business involves the development, production and marketing of certain specialised plastic products together with the additives and masterbatches used for making such products.

3 A masterbatch is a compound of several chemicals in a polymer carrier which is supplied in pellet form to the manufacturers of plastic products for them to incorporate into the polymer used by them to make their plastic products.

4 One of the masterbatches produced by the applicants, which they market under the trade mark d2w (‘the d2w masterbatch’), contains an additive which they maintain promotes abiotic degradation of the plastic into which it has been incorporated and then its biodegradation once its useful life has come to an end.

5 Oxo-degradable plastic is, according to the definition set out in point 3 of Article 3 of Directive 2019/904, plastic to which one or more additives have been added which, through oxidation, lead to its fragmentation into micro-fragments or to it undergoing chemical decomposition.

6 Biodegradable plastic is, according to point 16 of Article 3 of that directive, plastic capable of undergoing physical, biological decomposition, such that it ultimately decomposes into carbon dioxide, biomass and water.

7 According to the applicants, the additive contained in the d2w masterbatch causes the plastic into which it has been incorporated to fragment as a result of oxidation into very small pieces (oxo-degradation), the molecular weight of which is reduced to the point where it can be consumed by micro-organisms (biodegradation). In the opinion of the applicants, that additive therefore makes it possible for the plastic into which it has been incorporated to be converted into biodegradable materials.

8 On 5 June 2019, Directive 2019/904 was adopted.

9 In accordance with recital 15 of that directive:

‘… The restrictions on placing on the market introduced in this Directive should also cover products made from oxo-degradable plastic, as that type of plastic does not properly biodegrade and thus contributes to microplastic pollution in the environment, is not compostable, negatively affects the recycling of conventional plastic and fails to deliver a proven environmental benefit. …’

10 Article 5 of Directive 2019/904, entitled ‘Restrictions on placing on the market’, provides:

‘Member States shall prohibit the placing on the market of the single-use plastic products listed in Part B of the Annex and of products made from oxo-degradable plastic.’

II. Forms of order sought

11 The applicants claim that the Court should:

– find the European Parliament, the Council of the European Union and the European Commission to be non-contractually liable in accordance with the second paragraph of Article 340 TFEU and/or Article 41(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’), by adopting Article 5 and recital 15 of Directive 2019/904, in so far as they apply to oxo-biodegradable plastic;

– order the Parliament, Council and Commission to compensate them for damage suffered (including any additional damage suffered during the course of the proceedings) and/or likely foreseeable damage, together with interest payable, at an amount and rate to be determined in the course of the proceedings;

– in the alternative, order the Parliament, Council and Commission to submit to the Court, within a reasonable period of time after the date of delivery of the judgment in the present case, the detailed calculation of the amount of the compensation agreed by the parties or, in the absence of agreement, order them to submit their quantified proposals to the Court within the same period;

– in any event, order the Parliament, Council and Commission to pay the costs.

12 The Parliament and the Council contend that the Court should:

– dismiss the action;

– order the applicants to pay the costs.

13 The Commission contends that the Court should:

– dismiss the action as inadmissible in so far as it concerns it and, in any event, as unfounded;

– order the applicants to pay the costs.

III. Law

14 By the present action, the applicants seek compensation for damage they claim to have suffered on account of the prohibition on the placing on the market of products made from oxo-degradable plastic, laid down in Article 5 of Directive 2019/904, in so far as the prohibition applies to products made from plastic which they classify as oxo-biodegradable. Oxo-biodegradable plastic is a type of plastic, to which a pro-oxidant additive is added, such as that contained in their d2w masterbatch, so that it biodegrades more quickly than oxo-degradable plastic. By failing to distinguish between oxo-degradable plastic and oxo-biodegradable plastic, and by extending, as the case may be, the prohibition on products made from oxo-degradable plastic to products made from oxo-biodegradable plastic, the three institutions concerned have committed a sufficiently serious breach of a number of rules of law intended to confer rights on individuals. In so doing, they have caused damage to the applicants. In the applicants’ view, there is a sufficiently direct causal link between that damage and the unlawful conduct of the institutions.

15 The three institutions concerned submit that none of the three conditions for the non-contractual liability of the European Union to be incurred have been satisfied and they contend that the action should be dismissed. They submit, in particular, that no distinction should be made between oxo-degradable plastic and oxo-biodegradable plastic. In their view, those two terms refer to one and the same type of plastic, namely conventional plastic incorporating an additive which accelerates its fragmentation or chemical decomposition into very small pieces through oxidation. That type of plastic does not biodegrade properly within a reasonable time frame.

A. The application for omission of certain information vis-à-vis the public

16 By separate document lodged at the Registry of the General Court on 21 December 2020, the applicants requested the omission of certain information vis-à-vis the public, in accordance with Article 66 of the Rules of Procedure of the General Court, in order to ensure the protection of business secrets as regards their own data and data belonging to third parties.

17 By separate document lodged at the Court Registry on 23 June 2021, the applicants submitted a second application for omission of certain information vis-à-vis the public, in accordance with Article 66 of the Rules of Procedure. That application concerns data mentioned in their replies and also seeks to ensure the protection of business secrets as regards their own data and data belonging to third parties.

18 By those applications, the applicants seek, in essence, to have the following types of information omitted:

– the consequences for their customers of the prohibition on the placing on the market of products made from oxo-degradable plastic, as evidenced, in particular, by statements from staff members;

– the assessment of the amount of damage alleged to have been suffered as a result of that prohibition, as well as the data on which that assessment is based, that is to say, in particular, how their profits and losses, their market shares and the value of their shares have evolved;

– the text of European, United States, British and international standards on biodegradation, oxo-degradation and composting of plastic, as well as a glossary relating to the degradation and biodegradation of plastic.

19 Contrary to the application for omission of the first two categories of data referred to in paragraph 18 above, which, according to the applicants, is...