Judgment of the Court of 25 February 2021, Commission v Sweden, C-389/19 P

• Date: 25 February 2021
• Year: 2021

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result that that supervision would be offset and such a federation would thus regain control over its

management.

3. CHEMICALS

Judgment of the Court (First Chamber) of 25 February 2021

Case C-389/19 P

Commission v Sweden

Appeal – Regulation (EC) No 1907/2006 – Registration, evaluation, authorisation and restriction of

chemicals – European Commission decision authorising certain uses of lead sulfochromate yellow and

lead chromate molybdate sulfate red, substances listed in Annex XIV of that regulation – Substances of

very high concern – Conditions of authorisation – Assessment of the lack of suitable alte rnatives

On 19 November 2013, DCC Maastricht BV submitted an application for authorisation to place on the

market lead sulfochromate yellow and lead chromate molybdate sulfate red, pigments included in the

list of substances of very high concern, for six identical uses of those two substances.

The Commission authorised the uses referred to in the application, attaching restrictions and

requirements to that authorisation

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(‘the decision at issue’). Authorisation was subject to the

condition, in particular, that users downstream of the authorisation holder must provide the

European Chemicals Agency (ECHA) with information on the suitability and availability of alternatives

for the uses concerned, giving detailed proof of the need to use the substances in question.

The Kingdom of Sweden brought an action before the General Court seeking annulment of the

decision at issue. The General Court annulled that decision, on the ground that the Commission had

erred in law in its examination of the lack of availability of alternative substances. That institution

brought an appeal before the Court of Justice.

Findings of the Court

As to the substance, the Court of Justice finds that the General Court was correct to hold that the

Commission had failed to fulfil its obligation to verify the lack of availability of alternative substances.

It notes that the Commission was not entitled to take the view that an alternative substance could be

allowed only if substitution did not entail any loss of performance. Such a restriction on acceptance of

the alternative substance runs counter to the very purpose of the REACH Regulation, which seeks to

promote the substitution of substances of very high concern by other appropriate substances.

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However, to decide, as a matter of principle, that replacement must not entail any reduction in

performance amounts not only to adding a condition not provided for in that regulation, but is likely

to prevent that replacement and, consequently, to deprive that regulation of much of its

effectiveness.

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Article 60(4) of Regulation (EC) No 1907/2006 of the European Parliame nt and of the Council of 18 December 2006 concerning the

Registration, Evaluation, Authorisation and Res triction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive

1999/45/EC and repealin g 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 (O J 2006 L 396, p. 1, and corrigendum OJ 2007

L 136, p. 3; ‘the REACH Regulation’). Under that provision, the Commission may grant authorisation for a chemical su bstance only if i t is

shown that socio-economic be nefits outweigh the risk to human health or the environment arising from the use of the substance and if

there are no suitable alternative substances or technologies.

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Article 55 and recitals 4, 12, 70 and 73 of the REACH Regulation.