Germany v Esso Raffinage (Environmental protection organisation - Animal protection organisation - Order) [2019] EUECJ C-471/18P

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(Appeal — Applications for leave to intervene — Representative organisation — Environmental protection organisation — Animal protection organisation — Interest in the result of the case — Admission to intervene — Applications respectively submitted before the deadline laid down in Article 190(2) of the Rules of Procedure of the Court of Justice and after the expiry of that deadline)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 July 2018,

Federal Republic of Germany, represented by T. Henze and D. Klebs, acting as Agents,

Esso Raffinage SAS, established in Courbevoie (France), represented by M. Navin-Jones, Solicitor, and H. Estreicher, Rechtsanwalt,

European Chemicals Agency (ECHA), represented by M. Heikkilä, W. Broere and C. Jacquet, acting as Agents,

French Republic, represented by D. Colas, J. Traband and A.-L. Desjonquères, acting as Agents,

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

1 By its appeal, the Federal Republic of Germany seeks to have set aside the judgment of the General Court of 8 May 2018, Esso Raffinage v ECHA (T‑283/15, ‘the judgment under appeal’, EU:T:2018:263) by which the General Court annulled the letter of the European Chemicals Agency (ECHA) of 1 April 2015, addressed to the French Ministry of Ecology, Sustainable Development, Transport and Housing entitled ‘Statement of Non-Compliance following a Dossier Evaluation Decision under Regulation (EC) No 1907/2006 [of the European Parliament and of the Council 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)]’ (‘the decision at issue’).

2 The appeal of the Federal Republic of Germany, which had the status of an intervener at first instance, was served in accordance with Article 171(1) of the Rules of Procedure of the Court of Justice on the other parties to the relevant case before the General Court, that is to say, Esso Raffinage SAS, applicant at first instance, ECHA, defendant at first instance, and the French Republic and the Kingdom of the Netherlands, interveners at first instance.

3 On 5 November 2018, a notice relating to that appeal was published in the Official Journal of the European Union (OJ 2018 C 399, p. 21), pursuant to Article 21(4) of the Rules of Procedure.

4 On 26 November 2018, Esso Raffinage lodged with the Registry of the Court of Justice a reply pursuant to Article 172 of the Rules of Procedure and a document by which it requested that certain information in that reply and in some of the documents annexed thereto be treated confidentially and, for that reason, be excluded from both the service of the pleadings on the intervening parties at first instance which had acquired the status of parties to the appeal and the communication of those documents to the parties which might subsequently be given leave to intervene in that appeal, by virtue of Article 131 of the Rules of Procedure.

5 By document lodged at the Registry of the Court of Justice on 17 November 2018 on the basis of the second paragraph of Article 40 of the Statute of the Court Justice of the European Union, Higher Olefins and Poly Alpha Olefins REACH Consortium (‘HOPA REACH’) and Higher Olefins & Poly Alpha Olefins VZW (‘HOPA’) jointly sought leave to intervene in the case in support of the form of order sought by Esso Raffinage.

6 By document lodged at the Registry of the Court of Justice on 20 December 2018 on the same basis, the European Coalition to End Animal Experiments (‘ECEAE’) also sought leave to intervene in the case in support of the form of order sought by Esso Raffinage.

7 Esso Raffinage and ECHA lodged their written observations on both those applications, respectively on 7 and 8 January 2019, and 9 and 10 January 2019. By contrast, the Federal Republic of Germany, the French Republic and the Kingdom of the Netherlands did not submit any observations in that respect within the given time limit.

8 In its written observations, Esso Raffinage renewed its application for confidential treatment of 26 November 2018 with regard to HOPA REACH, HOPA and ECEAE, before informing the Court, by documents lodged at the Court Registry on 6 February 2019, that it was withdrawing that application.

9 In support of their joint application for leave to intervene, HOPA REACH and HOPA claim, in essence, that they satisfy the conditions applicable to the right to intervene laid down in the second paragraph of Article 40 of the Statute of the Court Justice of the European Union, as applicable to representative organisations, and that they must therefore be given leave to intervene in the case in support of the form of order sought by Esso Raffinage.

10 ECHA contends that that application must be rejected on the ground that HOPA REACH and HOPA do not set out to the requisite legal standard the reasons why it should be considered that they have an interest in the result of the case and that, in any event, no such interest exists since HOPA REACH and HOPA have not demonstrated that their legal situation could be affected by the decision at issue and the judgment under appeal.

11 In contrast, Esso Raffinage considers that that application should be granted.

12 In that regard, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any natural or legal person may intervene in a case before one or other of the European Union Courts, other than a case between Member States, between EU institutions or between Member States and EU institutions, if that person establishes an interest in the result of the case.

13 According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined having regard to the precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The term ‘the result of the case’ refers to the final decision sought, as set out in the operative part of the future judgment (orders of the President of the Court of 3 April 2014, Commission v Andersen, C‑303/13 P, not published, EU:C:2014:226, paragraph 7, and of 5 July 2018, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, not published, EU:C:2018:553, paragraph 7).

14 In that context, it is also settled case-law that a representative organisation whose objective is to protect the interests of its members may be granted leave to intervene where the case raises questions of principle that are liable to affect those members (orders of the President of the Court of 28 September 1998, Pharos v Commission, C‑151/98 P, EU:C:1998:440, paragraph 6, and of 12 January 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C‑84/17 P, C‑85/17 P and C‑95/17 P, not published, EU:C:2018:16, paragraph 6).

15 However, the application for leave to intervene submitted by such a representative organisation must contain a statement of the circumstances establishing the right to intervene in the case, in accordance with Article 130(2) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 190(1) of those rules.

16 In the present case, it should be pointed out first of all that, in their joint application for leave to intervene, HOPA REACH and HOPA present themselves, respectively, as a consortium which brings together an appreciable number of operators active in the petrochemical industry and as an association created to support HOPA REACH in all of its external activities. That application also lists the members of HOPA REACH, which include an appreciable number of leading companies in the sector concerned, such as Shell Chemicals Europe BV, Chevron Phillips Chemicals International NV and ExxonMobil Petroleum & Chemical BVBA.

17 In doing so, HOPA REACH and HOPA have established to the requisite legal standard that they must be regarded as representative organisations for the purposes of the case-law cited in paragraph 14 above.

18 Next, it is apparent both from the joint application for leave to intervene and from Article 2 of the Consortium Agreement annexed to the application that HOPA REACH’s objective is to promote, in a variety of ways, the common interests of its members in the context of the procedures introduced by Regulation No 1907/2006 and to carry out various connected operations, including, in particular, handling legal issues arising from its objective and exercising certain rights on behalf of its members. With regard to HOPA, Article 3 of the Articles of Association, which are also annexed to the joint application for leave to intervene, states that its objective is to provide administrative, technical and legal support to the members of HOPA REACH and to manage some of their rights in connection with Regulation No 1907/2006.

19 That information establishes to the requisite legal standard that the objective of HOPA REACH and HOPA is to protect the interests of the undertakings which are, directly or indirectly, members for the purposes of the case-law referred to in paragraph 14 above.

20 Finally, HOPA REACH and HOPA rightly state in their joint application for leave to intervene that the case raises questions of principle that are liable to affect those members for the purposes of that case-law, especially the question whether or not a decision such as the decision at issue constitutes an act which is capable of forming the subject matter of an application for annulment brought by an entity such as Esso Raffinage or a member of HOPA REACH which finds itself in the same situation, the question of the legal scope of a such a decision and the question of the delineation of the respective powers of ECHA and the national authorities in that context.

21 It follows from the foregoing that HOPA REACH and HOPA are to be regarded as having demonstrated an interest in the result of the case and that they must, therefore, be granted leave to intervene in the case in support of the form of order sought by Esso Raffinage.

22 In support of its application for leave to intervene, ECEAE claims, in essence, that it must be regarded as having an interest in the result of the case, given that it is the largest animal protection organisation in Europe, it is heavily involved in the areas covered by Regulation No 1907/2006 and it is a regular, accredited interlocutor with ECHA, in particular in the context of the procedures conducted under that regulation. ECEAE also states that, if the judgment under appeal were set aside by the Court of Justice, its capacity to defend the interests which it has the objective of protecting, in particular its capacity to campaign against animal testing and to act or intervene to that end before ECHA and its Board of Appeal, would be affected.

23 ECHA argues that ECEAE’s application for leave to intervene must be rejected on the ground that neither its position as an organisation actively involved in animal protection, nor the fact that it is capable of participating, as an interested third party or as an observer, in certain procedures or in certain meetings organised under Regulation No 1907/2006 do not lead to the conclusion that it has an interest in the result of the case.

24 By contrast, Esso Raffinage submits that ECEAE has demonstrated an interest in the result of the case as an environmental protection organisation involved in the procedures conducted under Regulation No 1907/2006 and whose efforts to promote the mainstreaming of animal welfare in that context could be affected by the result of the case.

25 In that regard, it follows from the case-law of the Court of Justice that, with regard to applications for leave to intervene submitted by environmental protection organisations, the condition that there must be an ‘interest in the result of the case’, recalled in paragraph 13 above, assumes, first, that the remit of those organisations, as derived from their objective laid down, as the case may be, in their articles of association, has a direct link with the subject matter of that case and, secondly, that that case raises questions of principle which are liable to affect the interests defended by the organisations in question (order of the President of the Court of 7 February 2019, Bayer CropScience and Bayer v Commission, C‑499/18 P, not published, EU:C:2019:107, paragraph 6).

26 In the present case, it should be noted, first of all, that ECEAE is an environmental protection organisation for the purposes of that case-law, in as much as its main objective is to combat animal testing and to act as a coordinating body, at European level, for 25 national or international organisations which make up its membership and which pursue the same objective, as is apparent from Article 1 of its Memorandum of Association and from Annexes A and B to its Articles of Association, attached to its application for leave to intervene.

27 Next it is clear from ECEAE’s arguments in support of its application that the remit of that organisation has a direct link with the subject matter of the case, in that it campaigns, in particular, against animal testing in the specific context of procedures conducted on the basis of Regulation No 1907/2006. In essence, the present case concerns, for the applicant undertaking and for the relevant national authorities, the conditions for adopting and the legal scope of a decision by which ECHA declares that a registration dossier for a substance coming under that regulation does not comply with the necessary requirements, in particular with regard to pre-natal developmental toxicity studies on animal species.

28 Finally, as is apparent from the considerations set out in the previous paragraph, that question of principle is capable of affecting ECEAE’s interests.

29 In those circumstances, the view must be taken that ECEAE has demonstrated an interest in the result of the case and therefore its application for leave to intervene in support of the form of order sought by Esso Raffinage should be admitted.

30 With regard to the interveners’ procedural rights, it must be recalled, in the first place, that the deadline for submitting an application for leave to intervene in an appeal is not the 6-week deadline from publication in the Official Journal of the European Union of the notice referred to in Article 21(4) of the Rules of Procedure, as provided for in Article 130(1) of those rules, but, by derogation from that provision, the deadline of 1 month from that publication laid down in Article 190(2) of those rules, extended on account of distance by a single period of 10 days as provided for in Article 51.

31 In the second place, where the application for leave to intervene is submitted before that deadline, the party given leave to intervene is entitled to receive every procedural document served on the parties, save, where applicable, for the secret or confidential items or documents excluded from such communication pursuant to Article 131(3) and (4) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 190(1) of those rules. In addition, that party may submit a statement in intervention within one month after that communication, in accordance with Article 132(1) of those rules, which also applies to the procedure on appeal by virtue of Article 190(1) of those rules.

32 However, where the application for leave to intervene is submitted after the deadline of 1 month and 10 days referred to in paragraph 30 above, but before any decision to open the oral phase of the procedure is taken, as provided for in Article 60(4) of the Rules of Procedure, it follows from Article 129(4) of those rules, applicable to the procedure on appeal by virtue of Article 190(1), that, where that application is considered, the party concerned may only make oral submissions at the hearing, if it takes place.

33 In the present case, it should be noted first of all that, since the notice referred to in Article 21(4) of the Rules of Procedure was published on 5 November 2018, as was stated in paragraph 3 above, the deadline of 1 month and 10 days referred to in paragraph 30 above expired on Monday 17 December 2018, in accordance with Article 49(2) of those rules.

34 Next, the application for leave to intervene of HOPA REACH and HOPA was submitted on 17 December 2018, while ECEAE’s application was submitted on 20 December 2018, as is apparent from paragraphs 5 and 6 above.

35 Finally, Esso Raffinage withdrew its applications to have certain information excluded from the communication of the procedural documents to HOPA REACH, HOPA and ECEAE in the event that they are granted leave to intervene in the case, as was stated in paragraph 8 above.

36 It follows, therefore, that HOPA REACH and HOPA are entitled to receive every procedural document served on the parties and to submit subsequently a statement in intervention.

37 With regard to ECEAE, it must receive every procedural document served on the parties, and it is permitted to make oral submissions at the hearing, if it takes place.

38 Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.

39 In the present case, since the application to intervene of HOPA REACH and HOPA and that of ECEAE are granted, the costs relating to those interventions must be reserved.

1. Higher Olefins and Poly Alpha Olefins REACH Consortium and Higher Olefins & Poly Alpha Olefins VZW are granted leave to intervene in Case C‑471/18 P in support of the form of order sought by Esso Raffinage SAS.

2. The European Coalition to End Animal Experiments is granted leave to intervene in Case C‑471/18 P in support of the form of order sought by Esso Raffinage SAS.

3. The Registrar shall serve a copy of every procedural document on Higher Olefins and Poly Alpha Olefins REACH Consortium and Higher Olefins & Poly Alpha Olefins VZW, on the one hand, and on the European Coalition to End Animal Experiments, on the other.

4. A period shall be prescribed within which Higher Olefins and Poly Alpha Olefins REACH Consortium and Higher Olefins & Poly Alpha Olefins VZW may submit a statement in intervention.

5. The European Coalition to End Animal Experiments shall have the opportunity to make oral submissions at the hearing, if it takes place.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Germany v Esso Raffinage (Environmental protection organisation - Animal protection organisation - Order) [2019] EUECJ C-471/18P_CO (12 March 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C47118P_CO.html Cite as: [2019] EUECJ C-471/18P_CO, EU:C:2019:198, ECLI:EU:C:2019:198

Court of Justice of the European Communities (including Court of First Instance Decisions)