Chemours Netherlands BV v European Chemicals Agency.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:847
• Date: 09 November 2023
• Docket Number: C-293/22
• Celex Number: 62022CJ0293
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Fourth Chamber)

9 November 2023 (*)

(Appeal – Regulation (EC) No 1907/2006 (REACH Regulation) – Article 57(f) – Substances of very high concern – Identification – Conditions – Serious effects on health or the environment – Equivalent level of concern – 2,3,3,3-tetrafluoro-2-(heptafluoropropoxy)propionic acid, its salts and its acyl halides – Identification as a substance fulfilling the criteria for inclusion in Annex XIV to that regulation)

In Case C‑293/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 May 2022,

Chemours Netherlands BV, established in Dordrecht (Netherlands), represented initially by R. Cana, Z. Romata and H. Widemann, avocates, and subsequently by R. Cana and Z. Romata, avocates,

appellant,

the other parties to the proceedings being:

European Chemicals Agency (ECHA), represented by W. Broere and N. Herbatschek, acting as Agents, and by S. Raes, advocaat,

defendant at first instance,

Kingdom of the Netherlands, represented by M.K. Bulterman and C.S. Schillemans, acting as Agents,

ClientEarth, established in London (United Kingdom),

ClientEarth AISBL, established in Brussels (Belgium),

CHEM Trust Europe eV, established in Hamburg (Germany), represented by N. Angelet, avocat,

interveners at first instance,

THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, O. Spineanu-Matei (Rapporteur), J.-C. Bonichot, S. Rodin and L.S. Rossi, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, Chemours Netherlands BV seeks to have set aside the judgment of the General Court of the European Union of 23 February 2022, Chemours Netherlands v ECHA (T‑636/19, ‘the judgment under appeal, EU:T:2022:86), by which the General Court dismissed its action for annulment of Decision ED/71/2019 of the European Chemicals Agency (ECHA) of 4 July 2019, which came into force on 16 July 2019, in so far as it includes 2,3,3,3‑tetrafluoro‑2‑(heptafluoropropoxy)propionic acid, its salts and its acyl halides (and their isomers and combinations thereof) in the list of substances identified for eventual inclusion in Annex XIV to 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, corrigendum OJ 2007 L 136, p. 3), as amended by, inter alia, Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 (OJ 2008 L 353, p. 1) (‘the REACH Regulation’).

Legal context

2 Article 1 of the REACH Regulation, entitled ‘Aim and scope’, provides:

‘1. The purpose of this Regulation is to ensure a high level of protection of human health and the environment, including the promotion of alternative methods for assessment of hazards of substances, as well as the free circulation of substances on the internal market while enhancing competitiveness and innovation.

…

3. This Regulation is based on the principle that it is for manufacturers, importers and downstream users to ensure that they manufacture, place on the market or use such substances that do not adversely affect human health or the environment. Its provisions are underpinned by the precautionary principle.’

3 Article 57 of that regulation, entitled ‘Substances to be included in Annex XIV’, is worded as follows:

‘The following substances may be included in Annex XIV in accordance with the procedure laid down in Article 58:

(a) substances meeting the criteria for classification in the hazard class carcinogenicity category 1A or 1B in accordance with Section 3.6 of Annex I to Regulation (EC) No 1272/2008;

(b) substances meeting the criteria for classification in the hazard class germ cell mutagenicity category 1A or 1B in accordance with Section 3.5 of Annex I to Regulation (EC) No 1272/2008;

(c) substances meeting the criteria for classification in the hazard class reproductive toxicity category 1A or 1B, adverse effects on sexual function and fertility or on development in accordance with Section 3.7 of Annex I to Regulation (EC) No 1272/2008;

(d) substances which are persistent, bioaccumulative and toxic in accordance with the criteria set out in Annex XIII [to] this Regulation;

(e) substances which are very persistent and very bioaccumulative in accordance with the criteria set out in Annex XIII [to] this Regulation;

(f) substances – such as those having endocrine disrupting properties or those having persistent, bioaccumulative and toxic properties or very persistent and very bioaccumulative properties, which do not fulfil the criteria of points (d) or (e) – for which there is scientific evidence of probable serious effects to human health or the environment which give rise to an equivalent level of concern to those of other substances listed in points (a) to (e) and which are identified on a case-by-case basis in accordance with the procedure set out in Article 59.’

Background to the dispute

4 The background to the dispute was set out by the General Court in paragraphs 11 to 17 of the judgment under appeal as follows:

‘11 [Chemours Netherlands], a company established in the Netherlands, is an importer and supplier in the European Union of ammonium 2,3,3,3-tetrafluoro-2-(heptafluoropropoxy)propanoate (“FRD‑902”), a substance that it has registered with [ECHA].

12 In March 2019, the competent authority of the Kingdom of the Netherlands submitted a dossier under Annex XV to [the REACH Regulation], supporting identification of 2,3,3,3-tetrafluoro-2-(heptafluoropropoxy)propionic acid, its salts and its acyl halides (and their isomers and combinations of isomers) (“HFPO-DA” …) as a substance of very high concern, in that that group of substances allegedly met the criteria set out in Article 57(f) of [the REACH Regulation] (“the Annex XV dossier”). When released into the environment, substances belonging to that group, which includes FRD-902, dissociate to form the substance 2,3,3,3-tetrafluoro-2-(heptafluoropropoxy)propanoate, also known as HFPO-DA.

13 On 13 March 2019, in accordance with Article 59(4) of [the REACH Regulation], ECHA invited all the interested parties to submit their observations on the Annex XV dossier by 29 April 2019. The applicant submitted its observations on 29 April 2019.

14 As it had received observations on the identification of HFPO-DA, ECHA forwarded the dossier to the Member State Committee (“MSC”) in accordance with Article 59(7) of [the REACH Regulation].

15 At its 65th meeting, held between 24 and 27 June 2019, the MSC unanimously agreed to identify HFPO-DA as a substance of very high concern. The grounds of the agreement were set out in the support document relating to HFPO-DA (“the support document”).

16 On 4 July 2019, in accordance with Article 59(8) of [the REACH Regulation], the executive director of ECHA adopted decision ED/71/2019, which provides for the inclusion of HFPO-DA in the candidate list for eventual inclusion in Annex XIV to [the REACH Regulation], as envisaged in Article 59(1) of that regulation (“the candidate list”), on the grounds that it is of an equivalent level of concern to those of other substances listed in Article 57(a) to (e) of [the REACH Regulation] having probable serious effects to human health and the environment, within the meaning of Article 57(f) of [the REACH Regulation] [“the decision at issue”].

17 The [decision at issue] came into force and was published on ECHA’s website on 16 July 2019. On the same date, under Article 59(10) of [the REACH Regulation], ECHA updated the candidate list published on its website in order to include HFPO-DA in that list as a substance of very high concern.’

The action before the General Court and the judgment under appeal

5 By application lodged at the Registry of the General Court on 24 September 2019, Chemours Netherlands brought an action for annulment of the decision at issue.

6 In the proceedings before the General Court, the Kingdom of the Netherlands, as well as ClientEarth AISBL, ClientEarth and CHEM Trust Europe eV (together ‘ClientEarth and CHEM Trust Europe’) intervened in support of the form of order sought by ECHA.

7 In support of its action, the appellant relied on two pleas in law. By the first plea it alleged that ECHA breached Article 57(f) of the REACH Regulation, exceeded its competence under that provision and manifestly erred in its assessment. By its second plea, the appellant alleged that ECHA breached the principle of proportionality.

8 By the judgment under appeal, the General Court dismissed that action.

Forms of order sought by the parties to the appeal

9 By its appeal, the appellant claims that the Court of Justice should:

– set aside the judgment under appeal;

– annul the decision at issue;

– in the alternative, refer the case back to the General Court to rule on its application for annulment; and

– order ECHA to pay the costs of these proceedings, including the costs of the proceedings before the General Court, and those of the interveners.

10 ECHA contends that the Court should:

– dismiss the appeal as inadmissible in part and unfounded in its entirety; and

– order the appellant to pay all the costs and expenses of these proceedings.

11 The Kingdom of the Netherlands contends that the Court should:

– dismiss the appeal; and

– order the appellant to pay the costs of the proceedings.

12 ClientEarth and CHEM Trust Europe contend that the Court should:

– dismiss the appeal as a...