Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV (VECCO) and Others v European Commission (C-651/15 P)

Contents

Judgment of the Court (Sixth Chamber)13 July 2017^note(Appeal — Regulation (EC) No 1907/2006 (REACH) — Article 58(2) — Authorisation — Substances of very high concern — Exemption — Regulation amending Annex XIV to Regulation (EC) No 1907/2006 — Inclusion of chromium trioxide in the list of substances subject to authorisation)In Case C‑651/15 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 December 2015,Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-Verbindungen in der Oberflächentechnik eV (VECCO) and Others, represented by C. Mereu, avocat, and J. Beck, Solicitor,the other parties to the proceedings being:European Commission, represented by K. Mifsud-Bonnici and K. Talabér-Ritz, acting as Agents,supported byFrench Republic, represented by D. Colas and J. Traband, acting as Agents,European Chemicals Agency (ECHA), represented by W. Broere and M. Heikkilä, acting as Agents,Assogalvanica and Others, represented by C. Mereu, avocat, and J. Beck, solicitor,THE COURT (Sixth Chamber),composed of E. Regan, President of the Chamber, C.G. Fernlund (Rapporteur) and S. Rodin, Judges,Advocate General: E. Sharpston,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

1By their appeal, Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-Verbindungen in der Oberflächentechnik eV (VECCO) and the 185 other appellants whose names are listed in Annex I to the present judgment (collectively, ‘VECCO and Others’) seek to have set aside the judgment of the General Court of the European Union of 25 September 2015, VECCO and Others v Commission (T‑360/13, ‘the judgment under appeal’, EU:T:2015:695) by which that court dismissed their action for partial annulment of Commission Regulation (EU) No 348/2013 of 17 April 2013 amending Annex XIV to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ 2013 L 108, p. 1).

Legal context

2Paragraph 1 of Article 1 of 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, and corrigendum OJ 2007 L 136, p. 3), as amended by 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’), entitled ‘Aim and scope’, provides:‘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.’

3As set out in Article 55 of the REACH Regulation:‘The aim of this Title is to ensure the good functioning of the internal market while assuring that the risks from substances of very high concern are properly controlled and that these substances are progressively replaced by suitable alternative substances or technologies where these are economically and technically viable. To this end all manufacturers, importers and downstream users applying for authorisations shall analyse the availability of alternatives and consider their risks, and the technical and economic feasibility of substitution.’

4Article 57 of the REACH Regulation sets out the criteria for inclusion of substances in Annex XIV to that regulation.

5Article 58 of the REACH Regulation provides:1.Whenever a decision is taken to include in Annex XIV substances referred to in Article 57, such a decision shall be taken in accordance with the procedure referred to in Article 133(4). It shall specify for each substance:(a) the identity of the substance as specified in Section 2 of Annex VI;(b) the intrinsic property (properties) of the substance referred to in Article 57;...(d) review periods for certain uses, if appropriate;(e) uses or categories of uses exempted from the authorisation requirement, if any, and conditions for such exemptions, if any.2. Uses or categories of uses may be exempted from the authorisation requirement provided that, on the basis of the existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance, the risk is properly controlled. In the establishment of such exemptions, account shall be taken, in particular, of the proportionality of risk to human health and the environment related to the nature of the substance, such as where the risk is modified by the physical form.…’

6Articles 60 to 64 of the REACH Regulation concern the granting of authorisations.

Background to the dispute

7It is apparent from paragraphs 1 to 9 of the judgment under appeal that, by means of Regulation No 348/2013, chromium trioxide was included in Annex XIV to the REACH Regulation without any exemptions under Article 58(2) of that regulation being granted for certain uses or categories of uses of that substance.

The procedure before the General Court and the judgment under appeal

8On 8 July 2013, VECCO and Others brought an action for the annulment of Regulation No 348/2013. By the judgment under appeal, the General Court dismissed the action and ordered VECCO and Others to pay the costs.

Forms of order sought by the parties before the Court of Justice

9VECCO and Others are asking the Court of Justice to set aside the judgment under appeal and rule on the merits of their action or to refer the case back to the General Court for final judgment.

10The European Commission contends that the Court should dismiss the appeal and order VECCO and Others to pay the costs.

11The French Republic, which was granted leave to intervene in support of the Commission, and the European Chemicals Agency (ECHA), which intervened at first instance in support of the form of order sought by the Commission, request the Court to dismiss the appeal.

The appeal

12VECCO and Others rely on three grounds in support of their appeal. The first and second grounds allege infringement of Article 58(2) of the REACH Regulation. The third ground alleges an error of assessment. The second and third grounds of appeal are submitted as subsidiary grounds in the event that the first ground of appeal is upheld.

First ground of appeal, alleging infringement of Article 58(2) of the REACH Regulation

Arguments of the parties

13The first ground of appeal is directed against paragraphs 28 to 53 of the judgment under appeal, in which the General Court held that neither Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work (fourteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1998 L 131, p. 11) nor Directive 2004/37/EC of the European Parliament and of the Council of 29 April 2004 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (sixth individual Directive within the meaning of Article 16(1) of Council Directive 89/391/EEC) (OJ 2004 L 158, p. 50) constitutes ‘specific Community legislation imposing minimum requirements’ within the meaning of Article 58(2) of the REACH Regulation. VECCO and Others claim that the General Court misinterpreted that provision.

14The appellants claim that, in paragraphs 40 to 44 and 50 to 53 of the judgment under appeal, the General Court erred in law by restricting the scope of the exemption laid down in Article 58(2) of the REACH Regulation solely to secondary legislation which relates to particular substances explicitly named.

15According to VECCO and Others, the exemption set out in Article 58(2) of the REACH Regulation does not apply to substances per se, but rather to their uses or categories of uses. Accordingly, it is not necessary for the legislation in question to specifically name the relevant substances. In that regard, VECCO and Others note that ECHA has acknowledged, in a document entitled ‘Preparation of draft Annex XIV entries for the third recommendation of substances to be included in Annex XIV — General Approach’ that uses falling within the exemption include, inter alia, the hazard classification category of a substance (as a carcinogen, mutagen or reproductive toxicant). Contrary to what was held by the General Court in paragraph 41 of the judgment under appeal, the appellants claim that that interpretation would not be liable seriously to jeopardise the purpose and functioning of the REACH Regulation.

16VECCO and Others maintain that the purpose of Article 58(2) of the REACH Regulation requires a preliminary consideration as to whether existing EU legislation is sufficient to ensure the risks are properly controlled. The three criteria laid down in that provision, requiring ‘specific Community legislation’ imposing ‘minimum requirements’ to ensure ‘the risk is properly controlled’, should therefore be assessed together, in the light of that objective, rather than being assessed in isolation, as done by the General Court.

17According to VECCO and Others, on a proper construction of Article 58(2) of the REACH Regulation, the General Court should have, first, examined whether Directives 98/24 and 2004/37 were ‘specific’ to the use of chromium trioxide in the surface treatment and electropolishing industry, secondly, if that had been found to be the case, have determined whether that existing legislation imposed ‘minimum requirements’ and, thirdly, have verified whether those minimum requirements were sufficient to properly control the risks involved.

18As regards the first criterion under Article 58(2) of the REACH Regulation, relating to the existence of ‘specific’ EU legislation, VECCO and Others consider it satisfied, given that the uses or categories of uses for which an exemption has been requested, namely, surface coating and electropolishing processes using chromium trioxide, fall within the uses contemplated by Directive 98/24 and, on account of that substance being classified as a carcinogen, by Directive 2004/37.

19As regards the second criterion of Article 58(2) of the REACH Regulation, VECCO and Others consider that the General Court appropriately outlined, in paragraphs 37 and 43 of the judgment under appeal, the ‘minimum requirements’ laid down by Directives 98/24 and 2004/37. However, they maintain that that court failed to assess in concreto whether those requirements ensured proper control of the risk to workers in the surface treatment and electropolishing industry.

20The appellants claim that the General Court was wrong to find, in paragraph 40 of the judgment under appeal, that Directive 98/24 lays down only a general framework of the duties imposed on employers who expose their employees to chemical risks. They assert that the General Court also held, in paragraph 44 of the judgment under appeal, that since Directive 98/24 does not lay down a maximum occupational exposure limit for the substance at issue, that directive cannot be considered to impose ‘minimum requirements’, within the meaning of Article 58(2) of the REACH Regulation.

21VECCO and Others maintain that the setting of maximum occupational exposure limits is neither the best nor the only method of managing chemical risks. The lack of such maximum limits for chromium trioxide is not sufficient for it to be concluded that those directives do not impose ‘minimum requirements’, within the meaning of Article 58(2) of the REACH Regulation.

22As regards the criterion concerning the proper control of risks, VECCO and Others take issue with paragraph 64 of the judgment under appeal, by which the General Court held that it was impossible to assess whether that criterion had been satisfied, because of the lack of specific Community legislation imposing minimum requirements. The appellants claim that that ‘superficial’ interpretation misconstrued, in law, the overall objective of Article 58(2) of the REACH Regulation and failed to have regard, in fact, to the evidence adduced as a whole, which sought to demonstrate that the risk to workers in the surface treatment and electropolishing industry stemming from the use of chromium trioxide is properly controlled by existing EU legislation.

23The Commission disputes the interpretation proposed by VECCO and Others to the effect that Article 58(2) of the REACH Regulation applies to uses and not to substances. It agrees with the reasoning of the General Court in finding that it was not necessary to examine the uses covered by Directives 98/24 and 2004/37, since those directives are not specific to chromium trioxide.

24ECHA supports the arguments of the Commission. It maintains that the legislature has not provided for an automatic exemption from authorisation for all uses covered by Directives 98/24 and 2004/37.

25The French Republic takes the same point of view and considers that Directives 98/24 and 2004/37 are not specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance within the meaning of Article 58(2) of the REACH Regulation.

Findings of the Court

26In order to address the first ground of appeal, it is necessary to bear in mind the context in which the exemption laid down in Article 58(2) of the REACH Regulation applies.

27In that regard, Article 1(1) of the REACH Regulation states that the purpose of the 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. To that end, that regulation introduces an integrated system for monitoring chemical substances, including registration, evaluation and authorisation, together with possible restrictions on their use (see, inter alia, judgment of 15 March 2017, Polynt v ECHA, C‑323/15 P, EU:C:2017:207, paragraph 20).

28As made clear, inter alia, in recitals 69 and 70 of the REACH Regulation, that regulation makes substances ‘of very high concern’ subject to careful attention. Those substances are thus subject to the authorisation scheme laid down in Title VII of that regulation. Article 55 of that regulation states that the objective of the authorisation scheme is ‘to ensure the good functioning of the internal market while assuring that the risks from substances of very high concern are properly controlled and that these substances are progressively replaced by suitable alternative substances or technologies where these are economically and technically viable’ (see, inter alia, judgment of 15 March 2017, Polynt v ECHA, C‑323/15 P, EU:C:2017:207, paragraph 21).

29The first stage under that authorisation scheme is the procedure for identifying substances of very high concern on the basis of the criteria set out in Article 57 of the REACH Regulation. The second stage is the inclusion of those substances on the list of substances subject to authorisation set out in Annex XIV to that regulation, and the third and final stage concerns the procedure that leads, if appropriate, to the authorisation of a substance of very high concern (see, inter alia, judgment of 15 March 2017, Polynt v ECHA, C‑323/15 P, EU:C:2017:207, paragraph 22).

30In order to ensure coherence between the authorisation scheme laid down in Title VII of the REACH Regulation and other EU legal provisions aimed at protecting human health and the environment from risks arising from the use of chemical substances, Article 58(2) of that regulation allows for the exemption of certain uses or categories of uses from the authorisation requirement ‘provided that, on the basis of the existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance, the risk is properly controlled’.

31It is clear from that provision that certain uses or categories of uses of a substance of very high concern may be exempted from the authorisation requirement if two conditions are satisfied. Those conditions require, first, that there be ‘existing specific Community legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance’ and, secondly, that, on the basis of that legislation, ‘the risk [be] properly controlled’. It is also apparent from the clear wording of that provision that those conditions are cumulative, which means that, as the General Court essentially held in paragraphs 32 and 64 of the judgment under appeal, it is sufficient that only one of those conditions is not satisfied for the exemption to have to be refused.

32Moreover, a restrictive interpretation of that provision is necessary precisely because it constitutes an exception.

33As regards the question whether Directives 98/24 and 2004/37 satisfy the first of those conditions, it is necessary to determine whether those directives can be regarded as specific legislation imposing minimum requirements relating to the protection of human health or the environment for the use of the substance.

34In accordance with settled case-law, the meaning and scope of the term ‘specific legislation’, for which the REACH Regulation provides no definition, must be determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part (see, by analogy, judgment of 24 June 2015, Hotel Sava Rogaška, C‑207/14, EU:C:2015:414, paragraph 25 and the case-law cited).

35In everyday language, the usual meaning of the adjective ‘specific’ denotes that which is distinctive of a particular subset and distinguishes it from other subsets, thus it can be regarded as the opposite of ‘general’. In accordance with its usual meaning, the term ‘specific legislation’ used in Article 58(2) of the REACH Regulation must be interpreted as referring, at the very least, to any directive or regulation laying down rules particular to the substance concerned. That term is to be understood as contrasting with legislation governing either a group of substances or categories of uses, which are defined generally and abstractly.

36VECCO and Others nonetheless maintain that the exemption laid down in Article 58(2) of the REACH Regulation applies to uses or categories of uses and not to substances. Consequently, they claim that in order to determine whether that exemption is applicable, rather than assessing whether the substance in question is expressly mentioned in the legislation at issue, it is necessary to assess whether that legislation makes it possible, in practice, properly to control the risks associated with the uses or categories of uses considered for that substance. Thus the appellants submit that the General Court erred in law by holding that Directives 98/24 and 2004/37 do not constitute specific legislation imposing minimum requirements on the ground that those directives do not expressly mention chromium trioxide.

37In that regard, although the first sentence of Article 58(2) of the REACH Regulation refers not to the notion of ‘substance’ but only to the notion of ‘uses or categories of uses’, the fact remains that the exemption mechanism implies an inextricable link between a substance and its uses or categories of uses.

38The objective of the REACH Regulation is to regulate substances, as is apparent from its title and its general scheme. The authorisation scheme referred to in Title VII more specifically covers substances which, on account of their intrinsic properties, are considered to be of very high concern and, accordingly, must ultimately be replaced.

39As is apparent from Article 55 of that regulation, those substances may be placed on the market only on the basis of an authorisation which ensures that the risks posed by their use are properly controlled. It is for that reason that the grant of an authorisation under Article 60 of the REACH Regulation is preceded by a risk assessment carried out under the conditions laid down in Article 64 of that regulation.

40Furthermore, the decision to include a substance in Annex XIV of the REACH Regulation must, in accordance with Article 58(1)(e) of that regulation, state in particular the uses or categories of uses exempted from the authorisation requirement, if any, and the conditions for such exemptions, if any.

41Moreover, as the General Court correctly stated, in essence, in paragraphs 41 and 44 of the judgment under appeal, the interpretation of Article 58(2) of the REACH Regulation put forward by VECCO and Others would mean, in particular, that any substance in carcinogenicity category 1 or 2 would be exempted from the obligation to obtain authorisation for occupational uses, on the ground that Directive 2004/37 governs such use for all carcinogenic substances. Such an interpretation is incompatible with both the wording and purpose of the authorisation scheme under Title VII of the REACH Regulation with regard to substances of very high concern, such as substances in carcinogenicity category 1 or 2.

42Therefore, in the present case, having correctly held that Directives 98/24 and 2004/37 contain no provisions specific to chromium trioxide imposing minimum requirements relating to the protection of human health or the environment for the use of the substance, the General Court did not err in law in finding, on the grounds set out in paragraphs 37 to 45 of the judgment under appeal, that those directives do not constitute ‘specific legislation’ within the meaning of Article 58(2) of the REACH Regulation. Consequently, the General Court was fully entitled to conclude, at paragraph 63 of the judgment under appeal, that the first of the two conditions laid down by that provision was not satisfied and, accordingly, that Court was justified in rejecting, in paragraph 66 of the judgment under appeal, the plea alleging infringement of Article 58(2) of the REACH Regulation.

43It follows that the first ground of appeal must, for that reason alone, be rejected as unfounded.

44The second and third grounds of appeal were submitted as subsidiary grounds in the event that the first ground of appeal was upheld. Since the first ground has been rejected, the second and third grounds of appeal must be dismissed as ineffective.

Costs

45Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded the Court is to make a decision as to costs. Under Article 138(1) of those Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

46Article 140(1) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 184(1) thereof, provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs.

47Under Article 184(4) of those Rules of Procedure, the Court of Justice may decide that an intervener at first instance who has taken part in the written or oral part of the proceedings before the Court is to bear his own costs.

48Since the Commission has applied for costs to be awarded against VECCO and Others and the latter have been unsuccessful, VECCO and Others must be ordered to bear their own costs and to pay those incurred by the Commission.

49The French Republic, as intervener in the appeal, shall bear its own costs.

50ECHA, as an intervener at first instance, shall bear its own costs.

Operative part

On those grounds, the Court (Sixth Chamber) hereby:

1.Dismisses the appeal;

2.Orders Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-Verbindungen in der Oberflächentechnik eV (VECCO) and the other applicants whose names are listed in Annex I to the present judgment to bear their own costs and to pay those incurred by the European Commission;

3.Orders the French Republic and the European Chemicals Agency (ECHA) to bear their own costs.

Delivered in open court in Luxembourg on 13 July 2017.