Polyelectrolyte Producers Group and Others v Commission and Netherlands (Order of the Court) [2014] EUECJ C-199/13 (27 March 2014)

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(Appeal – Article 181 of the Rules of Procedure – Regulation (EC) No 1907/2006 (REACH regulation) – Restrictions on the placing on the market and use of acrylamide – Regulation (EU) No 366/2011 amending Annex XVII of Regulation (EC) No 1907/2006)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 April 2013,

European Commission, represented by E. Manhaeve and P. Oliver, acting as Agents, assisted by J. Stuyck and A.-M. Vandromme, advocaten, with an address for service in Luxembourg,

Kingdom of the Netherlands, represented by M. Bulterman and B. Koopman, acting as Agents,

composed of C.G. Fernlund (Rapporteur), President of the Chamber, A. Ó Caoimh and C. Toader, Judges,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court,

1 By their appeal, Polyelectrolyte Producers Group, SNF SAS and Travetanche Injection SPRL seek to have set aside the judgment of the General Court of the European Union in Polyelectrolyte Producers Group and Others v Commission (Case T‑368/11, EU:T:2013:53, ‘the judgment under appeal’), wherein the General Court dismissed as unfounded their action for annulment of Commission Regulation (EU) No 366/2011 of 14 April 2011 amending Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) as regards Annex XVII (Acrylamide) (OJ 2011 L 101, p. 12; ‘the contested regulation’).

2 Acrylamide is a substance used in the production of polyacrylamide, which is used in construction as a grouting agent.

3 Under Council Regulation (EEC) No 793/93 on the evaluation and control of the risks of existing substances (OJ 1993 L 84, p. 1), acrylamide was included in the first priority list and the United Kingdom of Great Britain and Northern Ireland was given responsibility for the evaluation of that substance by Commission Regulation (EC) No 1179/94 of 25 May 1994 concerning the first list of priority substances as foreseen under Regulation No 793/93 (OJ 1994 L 131, p. 3).

4 The principles for the assessment of risks to man and the environment of existing substances in accordance with Regulation No 793/93 were laid down by Commission Regulation (EC) No 1488/94 of 28 June 1994 (OJ 1994 L 161, p. 3).

5 The United Kingdom concluded that it was necessary to reduce the risk to the aquatic environment arising from the use of acrylamide-based grouts, the risk to workers as a consequence of exposure arising from small and largescale use of acrylamide-based grouts and the risk to humans exposed via their environment to acrylamide as a consequence of the large-scale use of those products.

6 On the basis of the evaluation carried out by the United Kingdom, the Commission – by Recommendation 2004/394/EC of 29 April 2004 on the results of the risk evaluation and the risk reduction strategies for the substances: Acetonitrile; Acrylamide; Acrylonitrile; Acrylic acid; Butadiene; Hydrogen fluoride; Hydrogen peroxide; Methacrylic acid; Methyl methacrylate; Toluene; Trichlorobenzene (OJ 2004 L 144, p. 75) – recommended that the introduction at European Union level of restrictions on the marketing and use of acrylamide in grouts for small and largescale applications, in Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ 1976 L 262, p. 201), be considered. As regards the security of workers, the European Union legislation in force at that time was regarded as providing adequate protection to limit the risks of acrylamide.

7 On 4 February 2008, the Commission produced an impact assessment accompanying a draft decision amending Directive 76/769 as regards acrylamide.

8 From 1 June 2008 and 1 June 2009 respectively, Regulation No 793/93 and Directive 76/769 were repealed by Article 139 of Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Regulation No 793/93 and Regulation No 1488/94 as well as Directive 76/769 and Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1; ‘the REACH regulation’).

9 Article 137(1)(a) of the REACH regulation contains transitional measures. It provides that, by 1 June 2010 at the latest, the Commission is, if necessary, to prepare a draft amendment to Annex XVII to that regulation in accordance with any risk evaluation and recommended strategy for limiting risks that has been adopted at Community level in accordance with Article 11 of Regulation No 793/93 as far as it includes proposals for restrictions in accordance with Title VIII of the REACH regulation but for which a decision under Directive 76/769 has not yet been taken. Thus, the Commission prepared a draft amendment to Annex XVII to the REACH regulation which contains the restrictions applicable to the manufacture, placing on the market and use of certain dangerous substances, mixtures and articles.

10 On 14 April 2011, the Commission adopted the contested regulation. Article 1 of the contested regulation amended Annex XVII to the REACH regulation and the following text concerning acrylamide was inserted into that annex:

‘Shall not be placed on the market or used as a substance or constituent of mixtures in a concentration, equal to or greater than 0.1% by weight for grouting applications after 5 November 2012.’

11 By application lodged at the Registry of the Court of First Instance on 8 July 2011, the appellants brought an action for the annulment of the contested regulation. The Kingdom of the Netherlands intervened in support of the form of order sought by the Commission.

12 By document lodged at the Registry of the General Court on 30 October 2012, Travetanche Injection SPRL sought the suspension of operation of the contested regulation. By order of 5 November 2012 in Case T‑368/11 R Travetanche Injection v Commission, the President of the General Court granted that request, to the extent that the contested regulation concerns that company.

14 By their first plea in law, the appellants claimed that the Commission had made a manifest error of assessment in the evaluation of the risks on the basis of which the contested regulation was adopted. According to the appellants, the Commission had failed to take all the relevant factors into account, had made a manifest error in the evaluation of the data relating to the exposure to acrylamide and had taken into consideration a product containing a grouting agent distinct from acrylamide.

15 For the reasons set out in paragraphs 26 to 73 of the judgment under appeal, the General Court rejected the first plea in law.

16 By their second plea in law, the appellants claimed that the contested regulation infringed the principle of proportionality, since it was not appropriate to achieve its objective, namely protecting human health and the environment. According to the appellants, it was based on information that did not relate to the placing on the market of acrylamide. In addition, they submitted that the substances that may be used as substitutes for acrylamide might pose higher risks than acrylamide, and that the Commission could have taken other more appropriate and less restrictive measures.

17 The General Court rejected that plea for the reasons set out in paragraphs 75 to 98 of the judgment under appeal.

18 By their third plea in law, alleging infringement of the obligation to state reasons, the appellants claimed that the Commission had not explained why, in the contested regulation, the maximum level of concentration of acrylamide was fixed at 0.1%.

19 The General Court rejected that plea in law for the reasons set out in paragraphs 102 to 107 of the judgment under appeal.

– order the Commission to pay the costs, including those incurred at first instance.

21 The Commission and the Kingdom of the Netherlands contend that the appeal should be dismissed and that the appellants should be ordered to pay the costs.

22 Under Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part. It is appropriate to apply that provision in the present case.

24 This ground of appeal contests the General Court’s assessments in paragraphs 30, 32 to 40 and 44 to 62 of the judgment under appeal. It is composed of three branches.

The first branch of the first ground of appeal, concerning the scope of the judicial review exercised by the General Court

25 The appellants claim that the General Court erred in law, in paragraphs 29 and 30 of the judgment under appeal, in confining itself to examining whether the European Union institutions had committed a manifest error or a misuse of power or even if they had clearly exceeded the bounds of their discretion. The General Court limited the scope of its review by invoking the highly complex nature of the scientific and technical assessments necessary to determine the restrictions on the use of acrylamide, whereas the present case concerns only elementary uses of that substance. An issue of access to justice would arise if the General Court could thus systematically restrict its review provided that review concerned the application of the REACH regulation.

26 In that respect, it must be pointed out, as the General Court did in paragraph 29 of the judgment under appeal, that, in an area of evolving and complex technology such as that relating to the evaluation and monitoring of the risks posed by chemical substances, the European Union institutions have a broad discretion, in particular as to the assessment of highly complex scientific and technical facts, in order to determine the nature and scope of the measures which they adopt, and that review by the European Union judicature has to be limited to verifying whether there has been a manifest error of assessment or a misuse of powers, or whether the authorities have manifestly exceeded the limits of their discretion. In such a context, the European Union judicature cannot substitute its assessment of scientific and technical facts for that of the European Union authorities on whom alone the FEU Treaty has placed that task (Case C‑425/08 Enviro Tech (Europe), EU:C:2009:635, paragraph 47, and Case C‑15/10 Etimine, EU:C:2011:504, paragraph 60).

27 Therefore, the General Court rightly held, in paragraph 30 of the judgment under appeal, that the case-law cited above is applicable to the present case, on the ground that, ‘[e]ven if acrylamide grouts have been used in the same way for decades, the determination of the nature and the extent of the restrictions in issue required an assessment of highly complex scientific and technical facts’.

28 Nor did the General Court err in law in stating, in paragraph 31 of the judgment under appeal, that ‘the [European Union institutions’] broad discretion, which implies limited judicial review of their exercise of that discretion, applies not only to the nature and scope of the measures to be taken but also applies, to some extent, to the finding of the basic facts’.

29 In so ruling in accordance with the settled case-law of the Court of Justice, the General Court did not manifestly infringe the appellants’ right to access to justice, since they were clearly able to challenge the contested regulation in order to ensure the defence of their interests.

30 The first branch of the first ground of appeal is therefore manifestly unfounded.

The second branch of the first ground of appeal, concerning the failure to take into account all of the relevant factors and circumstances

31 The appellants claim that the General Court erred in law in holding, in paragraphs 32 to 40 of the judgment under appeal, that the Commission had taken into consideration all the relevant factors necessary to evaluate the risks relating to the use of acrylamide. According to the appellants, the Commission failed to take into account certain factors contained in a letter sent to it by Polyelectrolyte Producers Group on 17 January 2006 concerning the use of acrylamide in small-scale grouting applications in Belgium and the Netherlands.

32 However, it must be noted that, for the reasons stated in paragraphs 32 to 40 of the judgment under appeal, the General Court rejected the complaint that the Commission had not taken into account two documents, namely a report of 14 March 2000 entitled ‘Risk Reduction Strategy and Analysis of Advantages and Drawbacks for Acrylamide’, prepared by a consultancy for the UK authorities, and the aforementioned letter of 17 January 2006, in order to evaluate the risks relating to the use of acrylamide.

33 The General Court held, for the reasons set out in paragraphs 34 and 35 of the judgment under appeal, that the first of those documents ‘was in fact taken into account by the Commission in the course of the administrative procedure leading up to adoption of the contested regulation’. As regards the second document, the General Court essentially held, in paragraphs 38 and 39 of the judgment under appeal, that it was not relevant for the evaluation of the risks relating to exposure to acrylamide. It is therefore apparent that the grounds of the judgment under appeal which are challenged by the appellants concern exclusively factual assessments.

34 It is clear from Article 256 TFUE and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, secondly, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (Case C‑584/11 P Dow AgroSciences and Others v Commission, EU:C:2013:281, paragraph 72 and the case-law cited).

35 The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it. Save where the evidence adduced before the General Court has been distorted, the appraisal therefore does not constitute a point of law which is subject to review by the Court of Justice (Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, EU:C:2006:592, paragraph 70, and Joined Cases C‑239/11 P, C‑489/11 P and C‑498/11 P Siemens and Others v Commission, EU:C:2013:866, paragraph 38 and the case-law cited).

36 Since the appellants have not invoked any distortion of the evidence adduced before the General Court, the second branch of the first ground of appeal, contesting assessments of a factual nature, is therefore manifestly inadmissible.

The third branch of the first ground of appeal, concerning infringement of Regulation No 1488/94

37 The appellants claim that the General Court erred in its interpretation of Regulation No 1488/94 in two respects. First, it accepted the exclusive use of exposure data from a non-Member State relating to small-scale applications of grouting products. Secondly, it relied on data used for the risk assessment relating to large-scale applications of grouting products which gave rise to accidents in Sweden and Norway.

38 The appellants complain that the General Court, in paragraphs 44 to 49 of the judgment under appeal, accepted the Commission’s use of data from the United States concerning exposure to acrylamide through small-scale applications of that substance. In their view, it was for the Commission to prove that the data in question concerned conditions relating to exposure which was ‘known or reasonably foreseeable in the light of available information on the substance’ pursuant to Article 3(3) of Regulation No 1488/94. The data from the United States concerns different situations than those known in the European Union. Furthermore, the General Court contradicted itself in accepting the use of that data, whereas, in paragraph 96 of that judgment, it stated that ‘[r]isk management is not, however, subject to the same principles and rules in the United States as it is in the EU since the legal and political frameworks are different’.

39 In that respect, it must be noted that, in paragraph 42 of the judgment under appeal, the General Court held as follows:

‘Under Article 3(1) of Regulation No 1488/94, “the risk assessment shall entail hazard identification and, as appropriate, dose (concentration) - response (effect) assessment, exposure assessment and risk characterisation”. It must be based on “the information on the substance submitted in accordance with Articles 3, 4, 7(1) and (2), 9(1) and (2) and 10(2) of Regulation … No 793/93 and on other available information and shall normally be conducted in accordance with the procedures set out in Articles 4 and 5 of [Regulation No 1488/94]”. Under Article 3(3) of Regulation No 1488/94, “in conducting an exposure assessment, the rapporteur shall take into account those human populations or environmental spheres for which exposure to the substance is known or reasonably foreseeable in the light of available information on the substance, with particular regard to manufacture, transport, storage, formulation into a preparation or other processing, use and disposal or recovery.”’

40 In paragraph 46 of the judgment under appeal, the General Court inferred from the wording of those provisions and from that of the relevant provisions of Regulation No 793/93 that ‘the risk assessment could, in principle, also be founded on data other than those submitted pursuant to Regulation No 793/93 and that there was no requirement for those data to come from the EU’. The General Court did not err in law, in paragraph 47 of the judgment under appeal, in considering that the provisions in question ‘make no reference to exposure data from the EU and [that] there is thus no requirement that such data should be available in order for a risk assessment to be undertaken’. The interpretation of Article 3(1) and (3) of Regulation No 1488/94 recommended by the appellants – besides the fact that it is not based on the wording of the provisions at issue – would lead to available information being ignored merely because it is from a non-Member State. Such an interpretation would be clearly contrary to the letter and the spirit of Article 3(1) and (3).

41 Contrary to what is claimed by the appellants, the General Court did not contradict itself in stating, in paragraph 96 of the judgment under appeal, that the ‘[r]isk management is not, however, subject to the same principles and rules in the United States as it is in the EU since the legal and political frameworks are different’. Although, in paragraphs 46 and 47 of the judgment under appeal, the General Court ruled that the Commission’s use of certain exposure data for the purposes of the risk assessment was lawful, in paragraph 96 it answered the appellants’ complaints concerning the lawfulness, in light of the principle of proportionality, of the risk management measures adopted by the Commission, complaints which were based on the fact that the United States authorities had not deemed it necessary to prohibit the use of acrylamide-based grouting products in order to protect the health of workers which handled them.

42 As regards the issue of whether the data collected in the United States corresponded to conditions of acrylamide exposure comparable to those in the European Union, the General Court concluded, in paragraph 49 of the judgment under appeal, that ‘the Commission took into account data relating to an exposure to acrylamide that was reasonably foreseeable, in accordance with Article 3(3) of Regulation No 1488/94, and thus did not make a manifest error of assessment’. That conclusion is based on factual grounds set out in paragraph 48 of the judgment under appeal. It follows that the appellants’ criticisms, directed against those factual assessments, are manifestly inadmissible.

43 The appellants complain that, in paragraphs 50 to 62 of the judgment under appeal, the General Court rejected their arguments seeking to demonstrate that the Commission made a manifest error of assessment in relying on data relating to exposure scenarios in the context of the large-scale use of the grouting products. The Commission relied on data relating to accidents linked to the use of such products during the construction of tunnels in Sweden and Norway. However, those products were used, as the General Court pointed out in paragraph 57 of the judgment under appeal, in incorrect conditions. Therefore, according to the appellants, that data could not be regarded as representative of normal usage since it related to exposure which was not ‘known or reasonably foreseeable’ within the meaning of Article 3(3) of Regulation No 1488/94. The General Court therefore infringed that provision in ignoring the existence of a manifest error of assessment by the Commission.

44 The appellants’ line of argument raises the question whether Article 3(3) of Regulation No 1488/94 precludes the Commission from taking into account, for the purpose of evaluating the risks linked to the use of a substance, data relating to an exposure to such a substance resulting from an incorrect usage of the product in which it is present.

45 Under Article 3(3) of Regulation No 1488/94, account must be taken of data relating to exposure which was ‘known or reasonably foreseeable in the light of available information on the substance … with particular regard to … use’. That provision does not make a distinction between whether or not the use which brought about an exposure to a substance was in accordance with the applicable usage and security standards and it is sufficient that the exposure be ‘known or reasonably foreseeable’.

46 Therefore, the General Court neither contradicted itself nor erred in law in holding, in paragraph 61 of the judgment under appeal, referring to paragraph 71 of Etimine (EU:C:2011:504), that ‘the Commission must take into account all handling and uses occurring in normal circumstances, which encompasses, in particular, the need to take account of realistic and foreseeable accidents’.

47 Since the appellants’ line of argument is therefore manifestly unfounded, the third branch of the first ground of appeal must be rejected.

48 In those circumstances, the first ground of appeal must be rejected as manifestly inadmissible in part and manifestly unfounded in part.

49 By their second ground of appeal, contesting the reasons set out in paragraphs 65 to 69 of the judgment under appeal, the appellants claim that the General Court erred in the assessment of the facts in refusing, in paragraph 66, to take into consideration the fact that acrylamide is only present in N-methylolacrylamide (NMA) as an impurity.

50 According to the appellants, the restriction procedure laid down in Articles 68 and 69 of the REACH regulation is applicable to substances ‘on their own, in preparations or in articles’, but not to impurities. Consequently, the risks arising from the use of NMA-based grouting products cannot serve as a basis for the evaluation of the risks posed by acrylamide as a substance ‘on their own, in preparations or in articles’. In concluding that the Commission did not make an error of assessment in examining the data relating to the use of NMA-based grouting products in order to justify the restrictions concerning acrylamide, the General Court erred in its interpretation of Articles 68 and 69.

51 In addition, since acrylamide is an impurity and not a component of NMA-based grouting products, the appellants claim that:

– the contested regulation does not achieve its objective of protecting human health or the environment and, contrary to what the General Court held in paragraphs 74 to 80 of the judgment under appeal, it therefore infringes the principle of proportionality. (third ground of appeal);

– recital 4 in the preamble to the contested regulation does not state reasons in such a way as to enable the persons concerned to understand the full significance of and the reasons for the measures laid down by that regulation, contrary to what the General Court held in paragraph 102 of that judgment (fourth ground of appeal), and

– the General Court misinterpreted the contested regulation in holding, in paragraphs 100 to 106 of that judgment, that it covers NMA-based grouting products which contain acrylamide (fifth ground of appeal).

52 In that respect, it must be noted that, by their second ground of appeal, the appellants contest the assessment carried out by the General Court in paragraphs 66 to 69 of the judgment under appeal as regards the issue whether acrylamide is only present as an impurity in NMA-based grouting products. As noted in paragraph 34 of the present order, the Court has no jurisdiction to review such a factual assessment in the context of an appeal. The second ground of appeal relied on by the appellants is therefore manifestly inadmissible.

53 As regards the third to fifth grounds of appeal, they are based on the premise that the General Court erred in its assessment of the facts. Since the Court does not have jurisdiction, in the context of an appeal, to review the accuracy of such a factual premise, those grounds of appeal, even if they were well-founded, could not bring about the annulment of the judgment under appeal. Those grounds of appeal must therefore be rejected as ineffective.

54 Since none of the five grounds of appeal relied on by the appellants can be upheld, the appeal must be dismissed in its entirety as manifestly inadmissible in part and manifestly unfounded in part.

55 In accordance with the second paragraph of Article 184 of its Rules of Procedure, where the appeal is unfounded, the Court shall make a decision as to costs. Under Article 138(1) of those Rules, which applies to the procedure on appeal by virtue of Article 184 of those Rules, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the appellants have been unsuccessful, they must be ordered to pay the costs.

56 Pursuant to Article 140(1) of the Rules of Procedure, which is also applicable to the procedure on appeal, according to which the Member States which have intervened in the proceedings are to bear their own costs, the Kingdom of the Netherlands must be ordered to bear its own costs.

2. Polyelectrolyte Producers Group, SNF SAS and Travetanche Injection SPRL shall pay the costs;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Polyelectrolyte Producers Group and Others v Commission and Netherlands (Order of the Court) [2014] EUECJ C-199/13 (27 March 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/C19913_CO.html Cite as: [2014] EUECJ C-199/13

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