Judgment_paragraph 89 · Federal Republic of Germany v European Chemicals Agency (T-755/17)

89However, Article 93(3) of Regulation No 1907/2006 confers discretionary power on the Board of Appeal (judgment delivered today, BASF Grenzach v ECHA, T‑125/17, paragraph 119). In the exercise of that discretionary power, that board must not only examine whether, following the examination of the action, it has at its disposal evidence allowing it to adopt its own decision, but it must also take into account the rules governing the procedure provided for the adoption of the ECHA decision where that agency rules at first instance. Therefore, if that procedure confers an important role on certain actors, such as the role provided for the Member States and the Member State Committee by the procedure for the adoption of decisions as part of the evaluation of dossiers and substances (see paragraphs 68 to 74 above), the Board of Appeal must raise the question whether the adoption of such a final decision at its level is compatible with the objectives pursued by Regulation No 1907/2006 or whether compliance with the rules governing the procedure before the ECHA where that agency rules at first instance and with the objectives pursued by them requires the case to be referred to the competent body of that agency. In that context, it must also take into account recital 67 of that regulation, from which it follows that the procedure provided for the evaluation of substances and dossiers is based on the principle that a collective agreement between Member States or within the Member State Committee concerning draft decisions should provide the basis for an efficient system that respects the principle of subsidiarity (see, to that effect, judgment delivered today, BASF Grenzach v ECHA, T‑125/17, paragraph 115 to 120).

Federal Republic of Germany v European Chemicals Agency (T-755/17)

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