BSEF v Commission (Energy - Ecodesign requirements for electronic displays - Ban on halogenated flame retardants - Judgment) [2022] EUECJ T-113/20 (16 March 2022)

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(Energy – Directive 2009/125/EC – Ecodesign requirements for electronic displays – Regulation (EU) 2019/2021 – Ban on halogenated flame retardants in the enclosure and stand of electronic displays – Competence of the author of the act – Manifest error of assessment – Legal certainty – Proportionality – Equal treatment)

Bromine Science Environnemental Forum (BSEF), established in Brussels (Belgium), represented by R. Cana, E. Mullier and H. Widemann, lawyers,

European Commission, represented by B. De Meester and L. Haasbeek, acting as Agents,

APPLICATION under Article 263 TFEU seeking annulment of Commission Regulation (EU) 2019/2021 of 1 October 2019 laying down ecodesign requirements for electronic displays pursuant to Directive 2009/125/EC of the European Parliament and of the Council, amending Commission Regulation (EC) No 1275/2008 and repealing Commission Regulation (EC) No 642/2009 (OJ 2019 L 315, p. 241), in so far as it bans the use of halogenated flame retardants in the enclosure and stand of electronic displays,

composed of J. Svenningsen, President, C. Mac Eochaidh and T. Pynnä (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 10 November 2021,

1 The applicant, Bromine Science Environnemental Forum (BSEF), is an international not-for-profit association established under Belgian law, established in Brussels (Belgium), which represents bromine producers and producers of bromine-based products and bromine-related technologies. Those products include halogenated flame retardants (‘HFRs’).

2 According to Article 1(2) of Directive 2009/125/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products (OJ 2009 L 285, p. 10; ‘the Ecodesign Directive’), with the aim of ensuring the free movement of such products within the internal market, that directive lays down the requirements which the energy-related products covered by implementing measures are to satisfy in order to be placed on the market and/or put into service by increasing energy efficiency and the level of protection of the environment, while at the same time increasing the security of the energy supply.

3 Article 15(1) of the Ecodesign Directive provides for the possibility of adopting implementing measures which are designed to amend non-essential elements of the directive by supplementing it, and which are to be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 19(3) of that directive.

4 On the basis of Article 15(1) of the Ecodesign Directive, the Commission adopted Commission Regulation (EU) 2019/2021 of 1 October 2019 laying down ecodesign requirements for electronic displays pursuant to Directive 2009/125/EC of the European Parliament and of the Council, amending Commission Regulation (EC) No 1275/2008 and repealing Commission Regulation (EC) No 642/2009 (OJ 2019 L 315, p. 241; ‘the contested regulation’).

5 The contested regulation, according to Article 1(1) thereof, establishes ecodesign requirements for the placing on the market and putting into service of electronic displays, including televisions, monitors and digital signage displays.

6 Article 3 of the contested regulation provides that the ecodesign requirements set out in Annex II are to apply from the dates indicated therein. Point 4 of section D in Annex II to the contested regulation provides that, as of 1 March 2021, the use of HFRs is not allowed in the enclosure and stand of electronic displays (‘the ban at issue’).

7 By application lodged at the Registry of the General Court on 20 February 2020, the applicant brought the present action.

8 The defence, the reply and the rejoinder were lodged on 14 May, 28 August and 21 October 2020, respectively.

9 By separate document lodged on 10 March 2021, the applicant submitted a request for a measure of inquiry, with a view to obtaining the disclosure of documentary evidence relating to the meeting of the Committee on Ecodesign and Energy Labelling of Energy-Related Products of 19 December 2018, at which it was decided that the ban on HFRs – which had not been included in the earlier version of the draft regulation – would be re-instated.

10 On 14 June 2021, in the context of a measure of organisation of procedure adopted on the basis of Article 90 of the Rules of Procedure of the General Court, the Court put a question to the parties, to be answered in writing, to which they responded within the time limit prescribed.

13 Without having formally raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure, the Commission disputes the admissibility of the action, claiming that the applicant cannot be regarded as directly concerned by the contested regulation, within the meaning of the fourth paragraph of Article 263 TFEU.

14 It should be recalled that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on its merits without first ruling on its admissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52).

15 In the circumstances of the present case, the Court considers it appropriate, in the interests of procedural economy, to begin by examining the merits of the action without first ruling on its admissibility. In the present case, it is not immediately apparent whether the action is admissible or inadmissible, and an examination thereof would require a long and complex analysis, whereas the action must, in any event, be dismissed as unfounded on the grounds set out below.

16 The applicant relies on seven pleas in law in support of its action, which should be examined in turn.

The first plea in law, alleging infringement of Article 1(4) and Article 15(2)(c)(i) of the Ecodesign Directive, in that the Commission acted ultra vires and prevented the effectiveness of other EU law measures by adopting the contested regulation

17 By its first plea, the applicant disputes, in essence, the Commission’s competence to adopt the contested regulation as, in its view, other legislative frameworks would have been more appropriate to adopting the ban at issue. Furthermore, it takes the view that, by adopting the contested regulation, the Commission went against the scope and the effectiveness of those other frameworks.

18 First of all, the applicant claims that the Ecodesign Directive expressly requires that ecodesign requirements be adopted ‘without prejudice’ to EU waste and chemicals legislation. Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (OJ 2011 L 174, p. 88; ‘the RoHS Directive’) and 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; ‘the REACH Regulation’) expressly require the Commission to restrict the use of chemicals in electrical and electronic equipment, such as electronic displays, under very specific procedural guarantees and requirements. By banning HFRs through the contested regulation, the Commission bypassed all the conditions and safeguards applicable under these EU provisions.

19 Thus, the applicant takes the view that the Ecodesign Directive is not the appropriate legal framework to restrict chemical substances in electrical and electronic equipment (‘EEE’) such as electronic displays during their use or waste phase. It is argued that recital 35 of that directive clearly states that the latter is ‘complementary to existing [EU] instruments’, while Article 15(3)(b) of that directive provides that, where it adopts requirements, the Commission ‘shall take into account … relevant [EU] legislation’. By providing, in Article 1(4) of the Ecodesign Directive, that ‘this Directive and the implementing measures adopted pursuant thereto shall be without prejudice to [EU] waste management legislation and [EU] chemicals legislation …’, the EU legislature included an express, positive obligation to ensure that the ecodesign scheme would not prejudice the relevant EU legislation on waste management and chemicals. Moreover, pursuant to Article 15(2)(c)(i) of that directive, the Commission’s competence to adopt implementing measures such as the contested regulation is limited to those cases in which there is an ‘absence of other relevant [EU] legislation or failure of market forces to address the issue properly’.

20 According to the applicant, the terms ‘without prejudice’ in Article 1(4) of the Ecodesign Directive impose a legal requirement on the Commission to ensure that any measure laying down ecodesign requirements pursuant to that directive must not prejudice and does not affect the REACH Regulation, the RoHS Directive or Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment (WEEE) (OJ 2012 L 197, p. 38; ‘the WEEE Directive’). In the present case, the adoption of the ban at issue does cause prejudice to the balance in the competences of the Commission established between the various pieces of chemical, waste and product legislation. First, the ban on HFRs is not linked to product design but to the use of chemical substances. Second, by banning all HFRs in electronic displays, the ban at issue pre-empts and prevents any assessment of the need for a ban and of these substances’ properties, as well as the procedural safeguards which are mandated under the REACH Regulation or the RoHS Directive.

21 The applicant also disputes the contention that the contested regulation was adopted for the purposes of meeting a specific objective, given that plastics from waste electronic displays are mixed together with plastics from other waste electrical and electronic equipment (‘WEEE’). The question of recycling of WEEE plastics is therefore broader than the presence of HFRs. The defence confirms that the assessment under the RoHS Directive is more appropriate, in that it covers the question of the presence of specific HFRs in all EEE and not just in electronic displays.

22 Next, the applicant claims that, by banning all HFRs, irrespective of the concentration thereof, in the enclosure and stands of electronic displays, by laying down bans for which no provision is made by those instruments, or by failing to take account of certain thresholds laid down therein, the contested regulation runs counter to the provisions of the RoHS Directive, the REACH Regulation and the WEEE Directive.

23 In that connection, the applicant takes the view that the acknowledgement in the course of the present legal proceedings that a threshold is needed constitutes proof of the manifest error of law. The legal need for the presence of a threshold, which the Commission appears to recognise as necessary, cannot be dependent on whether or not the presence of the substances above that threshold will actually be verified, or how it would be verified.

24 The applicant observes, moreover, that the Commission’s Directorate-General (DG) Environment opposed the introduction of the ban at issue in the contested regulation, ‘in order to avoid legal overlapping’, given that the use of the hazardous substances concerned is already covered by the RoHS Directive. It also follows from the impact assessment resulting from the 2018 Interservices Consultation that ‘other legislative frameworks would be more appropriate, such as the RoHS [Directive] and REACH [Regulation]’.

25 The applicant argues that there are a number of legal instruments, such as the RoHS Directive or the REACH Regulation, which, in stark contrast to the Ecodesign Directive, specifically address the regulation of chemical substances and waste and regulate the Commission’s powers when it comes to doing so and, importantly, lay down the procedures for doing so.

26 Thus, the Commission’s assessment in the context of the adoption of the contested regulation does not contain considerations that would address all the points mandated by the RoHS Directive and the REACH Regulation, notably in so far as concerns the socio-economic impact of the ban, and whether the alternatives are ‘suitable’.

27 The difference in procedure between these different legal frameworks, therefore, is such as to be able to lead to a different result than the contested regulation.

28 Lastly, the applicant claims that, by restricting the use of HFRs in electronic displays through the contested regulation instead of assessing such potential restrictions under the more appropriate framework of the RoHS Directive or of the REACH Regulation, the Commission has acted against the effectiveness of these EU law provisions.

30 As a preliminary point, it should be recalled that, according to Article 1(1) of the Ecodesign Directive, that directive ‘establishes a framework for the setting of [EU] ecodesign requirements for energy-related products with the aim of ensuring the free movement of such products within the internal market’. Article 1(2) of that directive states that it ‘provides for the setting of requirements which the energy-related products covered by implementing measures must fulfil in order to be placed on the market and/or put into service’ and that ‘it contributes to sustainable development by increasing energy efficiency and the level of protection of the environment, while at the same time increasing the security of the energy supply’.

31 ‘Ecodesign’ is defined in Article 2(23) of the Ecodesign Directive as ‘the integration of environmental aspects into product design with the aim of improving the environmental performance of the product throughout its whole life cycle’. Article 2(24) of that directive defines ‘ecodesign requirement’ as ‘any requirement in relation to a product, or the design of a product, intended to improve its environmental performance, or any requirement for the supply of information with regard to the environmental aspects of a product’.

32 It is also apparent from recital 13 of the Ecodesign Directive that ecodesign requirements aim to reduce the environmental impacts of products across the whole of their life cycle, including in the selection and use of raw materials, in manufacturing, packaging, transport and distribution, installation and maintenance, use and end-of-life. Considering at the design stage a product’s environmental impact throughout its whole life cycle has a high potential to facilitate improved environmental performance in a cost-effective way, including in terms of resource and material efficiency, and thereby to contribute to achieving the objectives of the Thematic Strategy on the Sustainable Use of Natural Resources.

33 Article 15(1) and (2) of the Ecodesign Directive defines the criteria which products must fulfil in order to be covered by the implementing measures laid down in that directive. Those criteria include, under Article 15(2)(c), the condition that ‘the product shall present significant potential for improvement in terms of its environmental impact without entailing excessive costs, taking into account in particular: [first,] the absence of other relevant [EU] legislation or failure of market forces to address the issue properly; and [second,] a wide disparity in the environmental performance of products available on the market with equivalent functionality’.

34 Article 15(3) and (4) of the Ecodesign Directive specifies how the Commission is to prepare draft implementing measures. Article 15(4)(b) thus provides that the Commission is to ‘carry out an assessment, which shall consider the impact on the environment, consumers and manufacturers, including [small and medium-sized enterprises (SMEs)], in terms of competitiveness – including in relation to markets outside the [EU] – innovation, market access and costs and benefits’.

35 Furthermore, Article 15(5) to (10) of the Ecodesign Directive lays down a number of criteria with which measures adopted within the framework of that directive must comply. Article 15(6) of that directive thus provides that implementing measures adopted under paragraph 1 are to lay down ecodesign requirements in accordance with Annex I and/or Annex II to that directive. Annex I next states:

‘In preparing implementing measures laying down generic ecodesign requirements pursuant to Article 15, the Commission must identify, as appropriate to the product covered by the implementing measure, the relevant ecodesign parameters from among those listed in Part 1 …’

36 Point 1.1 of Annex I to the Ecodesign Directive determines the phases of the life cycle of the product to which ecodesign requirements can apply. It includes, in subparagraph (a), raw material selection and use, while referring, in subparagraph (b), to manufacturing. It expressly includes, in subparagraph (f), end-of-life, meaning the state of a product having reached the end of its first use until its final disposal.

37 Point 1.2(d) and (e) of Annex I to the Ecodesign Directive states that the ‘expected generation of waste material’ and the ‘possibilities for reuse, recycling and recovery of materials and/or of energy’ form part of the environmental aspects which are to be assessed.

38 Point 1.3 of Annex I determines the parameters to be used, where necessary, for evaluating the potential for improving the environmental aspects referred to in point 1.2, namely, inter alia, ‘(d) [the] use of substances classified as hazardous to health and/or the environment …; … (f) [the] ease for reuse and recycling …; … (j) [the] amounts of waste generated and amounts of hazardous waste generated; …’.

39 It is apparent from the impact assessment carried out by the Commission with a view to adopting the contested regulation that the use of flame retardants generally, and of HFRs specifically, causes issues in so far as concerns the recyclability of plastics containing such retardants. The use of a flame retardant, whichever it may be, reduces the quality of recycled plastic compared to original plastic which does not contain flame retardants. In so far as concerns electronic displays, HFRs cause specific issues from the point of view of recycling. In practice, the plastic parts of electronic displays containing HFRs are systematically incinerated, which results in a lower recycling rate.

40 Those considerations are reflected in recital 15 of the contested regulation, which states:

‘Presence of [HFRs] represents a major issue in the recycling of plastics of electronic displays. Some halogenated compounds have been restricted by [the RoHS Directive] because of their high toxicity, but may be still found in old displays and others are still allowed. Control on maximum content of non permitted compounds in recycled plastic is not cost-effective, resulting in all being incinerated. Alternative solutions would exist for the bulk of the plastic part in an electronic display, such as the enclosure and the stand, permitting higher yields of recycled plastics. Use of [HFRs] in these parts should be limited.’

41 It is therefore clear from the aforementioned provisions of the Ecodesign Directive that the Commission was competent, under that directive, to adopt the ban at issue in the contested regulation.

42 First, the use of HFRs directly concerns the design of electronic displays, in accordance with Article 2(23) and point 1.1 of Annex I to the Ecodesign Directive.

43 Second, the contested regulation does not ban all HFRs, but prohibits only the use thereof in the enclosure and stand of electronic displays, with a view to increasing the yields of recycled plastics contained in those displays, in accordance with Article 2(24) and Article 15(2)(c) of the Ecodesign Directive, as well as point 1.2(d) and (e) and point 1.3(f) of Annex I thereto.

44 Third, it is not apparent from any of the information before the Court that the Commission failed to comply with the requirements imposed by the Ecodesign Directive in adopting the contested regulation, particularly the obligation to carry out an impact assessment and conduct consultations with stakeholders.

45 Admittedly, as the applicant claims, Article 1(4) of the Ecodesign Directive provides that that directive and the implementing measures adopted pursuant thereto are ‘without prejudice’ to EU waste management legislation and chemicals legislation. Furthermore, recital 35 of that directive states that the latter is ‘complementary’ to existing legal instruments.

46 However, it cannot be inferred from that wording that the EU legislature intended to exclude the Commission’s competence to act under the Ecodesign Directive in cases where it appears that a similar measure could be adopted under another EU legal instrument, whilst having a different scope and being adopted further to a different procedure. As the Commission argues, the mere possibility of restricting the use of HFRs under the RoHS Directive or the REACH Regulation cannot restrict the Commission’s competence to adopt requirements concerning the use of those substances under the Ecodesign Directive. The separate question of determining whether that competence was exercised by the Commission in accordance with the principle of proportionality will be examined below, in the context of the fifth plea in law.

47 The terms ‘without prejudice’ aim instead to ensure a parallel application of the various applicable instruments, without one having priority over another, in line with their respective scopes. In other words, they aim to ensure that ecodesign requirements under the Ecodesign Directive do not infringe EU legislation applicable to waste management and chemicals (see, to that effect, judgments of 7 September 2006, Jehle, Weinhaus Kiderlen, C‑489/04, EU:C:2006:527, paragraphs 29 to 31, and of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraph 25).

48 It is therefore necessary to examine whether, as the applicant claims, the ban at issue laid down in the contested regulation was adopted in disregard of the scope and effectiveness of other EU legal instruments, such as the REACH Regulation, the RoHS Directive or the WEEE Directive.

49 First, while it is true that the ban at issue covers a wider range of HFRs than those subject to restriction under the REACH Regulation or the RoHS Directive, neither the REACH Regulation nor the RoHS Directive provides that substances not banned by the rules contained therein must be authorised in all products placed on the EU market. Moreover, the applicant has failed to identify any specific rule which has been infringed in either the REACH Regulation, the WEEE Directive or the RoHS Directive.

50 Furthermore, neither the RoHS Directive, the WEEE Directive nor the REACH Regulation contains specific provisions authorising the use of specific HFRs in electronic displays.

51 In that connection, the situation in the present case must be distinguished from that concerning the rules on the use of cadmium in electronic displays or of mercury in light sources under the RoHS Directive, inasmuch as the use of those substances is fully regulated by that directive.

52 As regards the presence of mercury in EEE, Article 4(1) of and Annex II to the RoHS Directive prohibit the use of mercury at a concentration higher than 0.1% in all EEE, with exemptions expressly provided for in points 1 to 4 of Annex III to that directive. Similarly, the use of cadmium is banned pursuant to Annex II to the RoHS Directive, with a temporary exemption applicable pursuant to point 39 of Annex III to that directive.

53 In the present case, by contrast, the REACH Regulation and the RoHS Directive contain restrictions on the use of certain HFRs without, however, containing specific provisions which expressly allow the use of specific HFRs in electronic displays.

54 Consequently, banning the use of additional HFRs relative to those subject to restrictions under the RoHS Directive and the REACH Regulation, for a very specific application, is not contrary to the provisions of those instruments.

55 Second, the applicant claims that the ban at issue is not consistent with the maximum values of 0.1% by weight defined in respect of polybrominated biphenyls (‘PBB’) and polybrominated diphenyl ethers (‘PBDE’) in Annex II to the RoHS Directive, and in respect of decabromodiphenyl ethers (‘DecaBDE’) in Annex XVII to the REACH Regulation.

56 In that connection, it should be borne in mind that the ban at issue imposes ecodesign requirements in respect of electronic displays on account of recycling issues arising as a result of the presence of HFRs in certain parts of those displays. The aim of the ban at issue is not, therefore, to ban HFRs in electronic displays on account of the hazardousness of those substances, but rather on account of their disadvantages in terms of the recycling capacity of the plastics into which they are incorporated.

57 Accordingly, as the Commission contends, it was not necessary to set a tolerance threshold for HFRs in the contested regulation, as the RoHS Directive and the REACH Regulation do in respect of certain substances. The fact that the RoHS Directive and the REACH Regulation provide for tolerance thresholds for certain HFRs, having regard to the fact that those substances are not hazardous below those thresholds, cannot affect the Commission’s competence to adopt the ban at issue. That ban aims to remedy a specific issue associated with the use of HFRs in electronic displays, and not in respect of all products placed on the EU market – as is the case for the REACH Regulation – or in respect of all WEEE, as for the RoHS Directive.

58 In any event, as regards the restriction imposed on DecaBDE, laid down in point 67a of Annex XVII to the REACH Regulation, the Commission confirmed during the hearing – without being challenged by the applicant – that that restriction did not apply to EEE which fall within the scope of the RoHS Directive, such as electronic displays.

59 As regards the tolerance thresholds laid down in respect of PBB and PBDE in Annex II to the RoHS Directive, the Commission stated, without being challenged by the applicant on that point, that the question of tolerance thresholds arose only at the physical verification stage whereas, in the present case, compliance with the requirements laid down by the contested regulation is generally verified through documentary checks. Nevertheless, where physical tests are to be conducted, the tolerance thresholds of 0.1%, laid down by the RoHS Directive and the REACH Regulation, are to be applied, as the Commission stated in its written pleadings.

60 That is also already clear from point 1.8 of Annex IV to the contested regulation, as amended by Commission Regulation (EU) 2021/341 of 23 February 2021 amending Regulations (EU) 2019/424, (EU) 2019/1781, (EU) 2019/2019, (EU) 2019/2020, (EU) 2019/2021, (EU) 2019/2022, (EU) 2019/2023 and (EU) 2019/2024 with regard to ecodesign requirements for servers and data storage products, electric motors and variable speed drives, refrigerating appliances, light sources and separate control gears, electronic displays, household dishwashers, household washing machines and household washer-dryers and refrigerating appliances with a direct sales function (OJ 2021 L 68, p. 108). Even though the adoption of that amending regulation came after the present action was brought, it should be observed that it is not apparent that, prior to the adoption of that amendment, introduced for clarification purposes, the ban at issue has, in its implementation, necessarily been incompatible with the tolerance thresholds laid down by the RoHS Directive and the REACH Regulation. In that regard, it should be recalled that, according to the settled case-law of the Court of Justice, where a provision of EU law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (see judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 41 and the case-law cited).

61 Accordingly, contrary to the applicant’s claim, the ban at issue does not infringe any provision of the RoHS Directive or the REACH Regulation fixing maximum values (or tolerance thresholds) in respect of certain HFRs such as PBB, PBDE or DecaBDE.

62 Third, as regards the argument that the ban at issue pre-empts the effectiveness of the ongoing assessment of TBBP-A HFRs for possible restriction under the RoHS Directive, it should be observed, as the Commission rightly does, that that assessment concerns the presence of that type of HFR in all EEE. Consequently, if TBBP-A HFRs were already banned from being used in the enclosure and base of electronic displays pursuant to the ban at issue, the ongoing assessment under the RoHS Directive would still be effective to determine whether those HFRs should also be banned in other EEE.

63 Fourth, in so far as the applicant claims that the ban at issue disregards the scope and effectiveness of the WEEE Directive, it should be observed, as the Commission does, that this directive, in particular recitals 4 and 11 and Article 4 thereof, clearly provides for the possibility of solving a problem upstream, during the production phase – as in the present case – where that problem cannot be resolved, or can only be so by incurring disproportionate costs, downstream, during the product end-of-life phase.

64 In the present case, it is clear, inter alia, from the impact assessment that downstream solutions were insufficient, inasmuch as recyclers opt for incineration of all plastics containing HFRs, because it is not economically viable to separate the plastics containing authorised substances from those containing substances that are restricted by the RoHS Directive. Moreover, recital 11 of the WEEE Directive expressly envisages the use of ecodesign to solve problems relating to re-use upstream. Accordingly, as the Commission rightly contends, the ban at issue laid down by the contested regulation contributes to the objectives of the WEEE Directive and is thus complementary thereto. If, as the applicant claims, the issue of recycling plastics from WEEE is in fact broader than that of the presence of HFRs in electronic displays, that takes nothing away from the fact that the Commission could validly take the view that the ban at issue would contribute to increasing the recyclability of those devices by reducing the total quantity of contaminated plastic.

65 Fifth, while it is true that the ban at issue was not adopted by following the procedures laid down by the RoHS Directive or the REACH Regulation, it should however be noted that that ban was adopted by following the relevant procedures laid down by the Ecodesign Directive, which the applicant does not dispute. As has been observed in paragraphs 41 to 47 above, that directive clearly grants the Commission competence to adopt the contested regulation in the present case, with the result that the applicable procedural framework was that laid down in that directive and not those provided for by other instruments, such as the RoHS Directive or the REACH Regulation.

66 Sixth, as regards the applicant’s argument that DG Environment expressed doubts as to the draft ban at issue, it should be observed that such a statement of position by a Commission service during an inter-service consultation cannot suffice to establish the unlawfulness of the contested regulation. In any event, those doubts reveal, above all, the need to ensure consistency with other legal instruments, such as the RoHS Directive. The Commission does not dispute that the RoHS Directive could also have been a relevant instrument for adopting the ban at issue, but contends that such a ban would have been broader in scope under that directive, as it would then have been applicable to all EEE and not solely to electronic displays. The ban at issue in fact excludes only the use of HFRs in two specific components of electronic displays, in order to address a specific problem linked to the low recycling rate for those products.

67 In the light of the foregoing, it must be found that the Commission was competent to adopt the ban at issue contained in the contested regulation and that, in doing so, it did not infringe any provisions of the RoHS Directive, the REACH Regulation or the WEEE Directive.

69 By its second plea, the applicant claims that by banning the HFRs for use in electronic displays through the contested regulation, the Commission infringed the applicant’s rights of defence.

70 The RoHS Directive and the REACH Regulation, in stark contrast to the Ecodesign Directive, specifically address the regulation of chemical substances and waste and regulate the Commission’s powers when it comes to doing so and lay down the procedures to do so.

71 The applicant claims that, had it been able to submit comments under these frameworks and in relation to, in particular, a scientific assessment of effects on human health or the environment, a socio-economic assessment or an assessment of the impact on entities such as the applicant, the Commission’s assessment could have led to a different measure. In particular, if the need to ban HFRs had been addressed under the REACH Regulation or the RoHS Directive, the assessment and public consultation would have been mandatorily carried out on an individual substance basis, rather than a ban of the entire group without any assessment of the need to ban individual HFRs.

72 In any event, the applicant takes the view that, if the assessment had been carried out by virtue of the different legal frameworks established by the REACH Regulation or the RoHS Directive, it would have been ‘better able to defend itself’, which is sufficient for it to be found that its rights of defence have been breached.

74 In that connection, it should be borne in mind that the rights of the defence, as defined by the case-law and Article 41 of the Charter of Fundamental Rights of the European Union (in so far as it refers to the right to be heard), apply only during the procedure for the adoption of an act adversely affecting the person concerned and of individual scope. As regards acts of general application, neither the process of drafting them nor those acts themselves require, in accordance with the general principles of EU law, such as the right to be heard, consulted or informed, the participation of the persons affected, unless an express provision of the legal context governing the adoption of that act confers a procedural right on a person affected (see, to that effect, judgment of 19 December 2019, Probelte v Commission, T‑67/18, EU:T:2019:873, paragraphs 86 and 87 and the case-law cited).

75 It is common ground that the contested regulation is not an act of individual scope, but is instead an act of general application. The applicant cannot, therefore, rely either on the rights of the defence in the context of the procedure for the adoption of the contested regulation or on the right to be heard, beyond the procedural rights expressly conferred on the applicant by the legislation applicable.

76 Furthermore, it should be recalled, as has been found in paragraphs 41 to 47 above, that the Ecodesign Directive clearly granted the Commission competence to adopt the ban at issue. As a consequence, the applicable procedural framework in the present case was that laid down by that directive and not those provided for by other instruments, such as the RoHS Directive or the REACH Regulation. Moreover, the applicant does not claim that there has been any infringement of the procedural rules laid down by the Ecodesign Directive when the contested regulation was adopted.

77 Consequently, the circumstance that the members of the applicant were not consulted pursuant to procedures which were not applicable in the present case, or that they could not expect that they needed to have been involved with the Consultation Forum, provided for in Article 18 of the Ecodesign Directive, as parties concerned by the product or product group in question, cannot constitute an infringement of the applicant’s procedural rights under that directive.

78 In the light of the foregoing, the second plea in law must be rejected as unfounded.

The third plea in law, alleging that the Commission manifestly erred in its assessment and failed to take all information into account, breached Article 15(1) of the Ecodesign Directive and failed in its duty to undertake an appropriate impact assessment

79 By the third plea, the applicant takes the view that, in introducing a blanket ban on all HFRs without an appropriate substantive assessment to support it, the Commission manifestly erred in its assessment and failed to take all information into account.

80 First of all, the applicant claims that the assessment of whether or not the Commission could and should include a ban on all HFRs in the contested regulation goes to the Commission’s assessment of its own competence and is not a matter of technical or scientific facts or complex assessments, with the result that the case-law according to which the Court’s review should be confined to verifying whether a manifest error of assessment has been committed does not apply in the present case. In any event, the lack of assessment in support of introducing the ban on HFRs in the contested regulation is so blatant that it does constitute a manifest error of assessment.

81 In the present case, the Commission’s obligation to assess all relevant facts is further supplemented by the obligations laid down in the Ecodesign Directive.

82 Thus, that directive requires the Commission – when adopting implementing measures, such as the contested regulation – to assess, inter alia, (i) whether ecodesign standards are based on a technical, economic and environmental analysis, balancing the various environmental aspects, and (ii) the impact on the environment, consumers and manufacturers, including SMEs, in terms of competitiveness, innovation, market access and costs and benefits. The Commission is also under the obligation that its implementing measures do not have, on the one hand, a significant negative impact on the functionality of the product and, on the other hand, a significant negative impact on industry’s competitiveness. Commission Working Document SWD(2017) 350 of 7 July 2017, entitled ‘Better Regulation Guidelines’, lays down detailed provisions as to how the Commission has to conduct such an impact assessment.

83 The applicant takes the view that the assessment carried out by the Commission did not meet those obligations.

84 It argues, first, that the Commission failed to take into consideration existing relevant legislation, which includes the REACH Regulation, the RoHS Directive and the WEEE Directive. According to the applicant, the fact that some legacy HFRs may still be found in old displays or that not all HFRs are restricted under the RoHS Directive does not make it necessary to ban these substances under the Ecodesign Directive. This fact is also expressly acknowledged by the WEEE Directive. Moreover, the Commission, as per the Better Regulation Guidelines, has to examine the coherence of an intended EU measure internally and with other EU actions and in particular if different legislation is intended to address the same policy fields which, in the applicant’s view, it manifestly failed to do.

85 Second, the Commission further failed to consider the impact of the contested regulation on consumers, as required under the Ecodesign Directive. The use of flame retardants in display casings is driven by fire safety considerations. HFRs – compared to other flame retardants – have the primary benefits of reducing the likelihood of ignition and slower fire growth. The Commission further recognised, in its final impact assessment, that flame retardants will always be necessary. Consequently, according to the applicant, HFRs will be extensively substituted with other flame-retardant chemistries which may in themselves create issues for recycling in particular. Thus, if the Commission had assessed phosphorous flame retardants, for instance, it would have seen that it is a less attractive alternative from a carbon footprint and circular economy perspective. The final impact assessment did not assess this substitution scenario, which would have been assessed under the appropriate chemicals framework.

86 Third, the applicant takes the view that the Commission’s assessment under Article 15(5) of the Ecodesign Directive, amounts to ‘a box-ticking exercise’, without an actual assessment of the impact of the ban at issue on HFRs. In fact, the only consideration in support of the ban on HFRs which was suggested at the launch of the 2018 inter-service consultation is that ‘a complete ban of all HFRs in the display-casings is believed to be timely, safe, simpler and more effective’, which does not meet the requisite standard. The Commission also failed to assess the recyclability of plastics containing HFRs taking into consideration the different types of recycling method.

87 Next, the applicant claims that the Commission also failed to assess whether, for those substances already restricted under the RoHS Directive and the REACH Regulation, there was a specific need to go beyond the existing restrictions for electronic displays. There was no assessment or justification why the concentration thresholds laid down in those instruments would not be appropriate for electronic displays, when they are deemed appropriate for all other articles including all other EEE. The Commission also failed to assess whether a concentration threshold would be appropriate for any of the banned HFRs, which creates significant enforceability and legal certainty issues.

88 Lastly, the applicant argues that the Commission did not assess the individual properties of the substances or their individual recyclability, but adopted a blanket ban on the entire group of HFRs, covering approximately 70 individual substances for brominated flame retardants only, without any case-by-case assessment of the need to ban any specific substance. What is more, the Commission did not even assess the properties of HFRs as a group. There was no assessment of whether the risk posed by all the substances was the same and justified the same, undifferentiated approach, or whether there might be other considerations that would warrant not restricting them all or restricting them only subject to certain conditions.

89 It is argued that such a practice is contrary not only to the Commission’s duty to take all relevant information into account, but also to recital 17 of the Ecodesign Directive, which requires that ‘the level of ecodesign requirements should be established on the basis of technical, economic and environmental analysis’.

91 The Court notes that, by its third plea in law, the applicant takes the view, in essence, that the Commission failed to conduct an appropriate and sufficient impact assessment prior to adopting the ban at issue, and that it failed to take all relevant information into consideration.

92 As a preliminary point, it should be recalled that, when engaging in complex assessments, particularly of a scientific, technical and economic nature, the EU institutions enjoy a broad discretion to determine the nature and extent of the measures which they adopt, with the result that the review by the EU judicature of those assessments must be limited to verifying whether the exercise of such powers has been vitiated by a manifest error of appraisal or a misuse of powers, or whether those authorities have manifestly exceeded the limits of their discretion (see, to that effect, judgments of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 97; of 22 November 2017, Commission v Bilbaína de Alquitranes and Others, C‑691/15 P, EU:C:2017:882, paragraph 34; and of 10 December 2020, Comune di Milano v Commission, C‑160/19 P, EU:C:2020:1012, paragraphs 100 and 101).

93 In the light of the complex scientific and technical assessments which the Commission must carry out, and having regard to the number of parameters which it must take into account when adopting an implementing measure under Article 15 of the Ecodesign Directive, the institution’s involvement in that context is part of a complex assessment in respect of which it must be recognised as enjoying a broad discretion.

94 First, as regards the alleged lack of consistency between the contested regulation and the different legislative instruments, such as the RoHS Directive or the REACH Regulation, in so far as the applicant reiterates arguments that it submitted in the context of the first plea in law, it is necessary to refer to the examination conducted in that context, in particular in paragraphs 49 to 67 above.

95 Second, in so far as concerns the applicant’s argument that the Commission failed to take into account the impact of the contested regulation on consumers, it should be recalled that, according to Article 15(4)(b) of the Ecodesign Directive, ‘in preparing a draft implementing measure the Commission shall … carry out an assessment, which shall consider the impact on the environment, consumers and manufacturers, including SMEs, in terms of competitiveness – including in relation to markets outside the Community – innovation, market access and costs and benefits’. Furthermore, pursuant to Article 15(5)(a) of the Ecodesign Directive, implementing measures are to meet the criterion that ‘there shall be no significant negative impact on the functionality of the product, from the perspective of the user’.

96 It should be observed, as the Commission does, that that assessment of the impact of the contested regulation on consumers was carried out in points 2.5.4 and 6.4 of the impact assessment. Thus, it is apparent from those points that there are alternative solutions and that these are already widely used in electronic displays, with the result that the applicant cannot validly claim that the Commission failed to take sufficient account of product safety having regard to the risk of fire.

97 Furthermore, the applicant’s argument that the HFRs present in enclosures and stands would probably be replaced by other flame retardants, such as phosphorous flame retardants, which could in turn create recycling issues, is not such as to cast doubt over the accuracy of the assessment, also set out in the impact assessment, that the use of HFRs in the enclosure and stand of electronic displays hinders the recyclability of those plastic parts which are incinerated rather than being dismantled and recycled. Moreover, the applicant has in no way established that phosphorus-based flame retardants create the same issues as HFRs in terms of recycling, whereas it is apparent from the impact assessment that plastics containing HFRs are not recycled at all. On the contrary, it is clear from the passage quoted by the applicant in its reply that plastics containing phosphorus-based flame retardants are recycled, although the quality of the recycling is slightly inferior to that obtained with plastics which do not contain any flame retardant.

98 Third, in so far as concerns the alleged absence or insufficiency of the impact assessment carried out under Article 15(5) of the Ecodesign Directive, which, according to the applicant, amounts to a ‘box-ticking exercise’, it should be observed, as the Commission does, that the table to which the applicant refers in the application, which is set out at pages 49 and 50 of the impact assessment, only contains the conclusions as regards the fulfilment of the different criteria set out in Article 15(5) of the Ecodesign Directive, and refers to the sections in the impact assessment where these criteria are addressed in detail. Furthermore, supposing certain parts of the impact assessment were too brief, the applicant has failed to demonstrate how the findings of that assessment are vitiated by a manifest error of assessment.

99 Moreover, the applicant cannot usefully rely on that fact that, in an earlier impact assessment from 2016, the Commission found that ‘restrictions or a ban on the use of flame retardants, however, appear of modest impact if limited to the electronic display sector and more appropriate regulatory instruments should be envisaged’. That sentence does not, in fact, call into question the preceding assertion that the sole obstacle to a significant rate of recycling of EEE is the presence of flame retardants. As the Commission contends, the fact that that issue has only partly been resolved by the adoption of the contested regulation does not mean that that regulation and the ban on HFRs pursuant to the ban at issue are not an appropriate means for achieving the specific objective of attaining a high rate of recycling of electronic displays. In that sense, the assertion made in the impact assessment that ‘a complete ban of all HFRs in the display-casings is believed to be timely, safe, simpler and more effective [than mere marking and information requirements]’ does not contradict the preceding analysis and is not vitiated by any manifest error of assessment.

100 Fourth, as regards the applicant’s argument that the Commission also failed to assess whether, for those substances already restricted under the RoHS Directive and the REACH Regulation, there was a specific need to go beyond the existing restrictions for electronic displays, it should be noted that the impact assessment clearly states the reasons why the ban solely on HFRs subject to restrictions under the RoHS Directive and the REACH Regulation would not be sufficient to achieve the objective pursued, which is to increase the rate of recycling of the enclosure and stand of electronic displays. In so far as concerns compliance with the maximum values laid down in those instruments, it is necessary to refer to paragraphs 55 to 61 above in the context of the first plea in law.

101 Similarly, inasmuch as the applicant takes the view that the Commission should have separately assessed the individual properties of each of the 70 substances belonging to the group of HFRs, it is clear from the impact assessment that the specific issue identified concerned the fact that it was not economically viable for recyclers to determine which specific HFRs were present in plastics, with the result that all plastics containing such substances were incinerated rather than recycled. Consequently, the Commission did not commit a manifest error of assessment by finding that that issue could be resolved only by banning the use of all HFRs without conducting an individual assessment of the 70 different substances belonging to the group of HFRs.

102 Fifth and lastly, contrary to the applicant’s claims, the impact assessment carried out with a view to adopting the contested regulation clearly determines the reasons why the ban at issue concerns HFRs only, on account of the specific issue that they create in terms of recycling, and not all flame retardants.

103 In the light of all of the foregoing, the Commission took sufficient account of all of the relevant information and carried out the requisite impact assessment, in accordance with the requirements under Article 15 of the Ecodesign Directive, with the result that it did not commit any manifest error of assessment.

The fourth plea in law, alleging infringement of the principle of legal certainty

105 By its fourth plea in law, the applicant claims that the contested regulation breaches the principle of legal certainty, which requires that the application of the law to a specific situation must be predictable.

106 It argues, first, that the ban at issue places it in an unacceptable situation of legal uncertainty, which stems, in particular, from the lack of clear identification of the substances actually covered by the ban. In Annex I to the contested regulation, the concept of ‘HFR’ is defined as ‘a flame retardant that contains any halogen’, and a ‘flame retardant’ is defined as ‘a substance that markedly retards the propagation of a flame’. These definitions relate to a class of substances, defined generically by reference to specific characteristics, namely the presence of a halogen element, with no substance identified individually.

107 The applicant also states that there may be HFRs which do not necessarily exist yet, and that these substances may, in the future, come to meet the definition of an HFR under the contested regulation and become automatically subject to the ban, without any assessment of the risks related to each substance. As such, the blanket ban on unidentified HFRs does not comply with the principle of legal certainty, in that it does not enable the applicant and its members to assess with full legal certainty whether their products fall within the scope of the contested regulation.

108 It is argued, second, that the legal uncertainty stems from the absence of any minimum concentration threshold for the ban to apply. It is entirely possible, given the state of analytical techniques in use today, that trace quantities of halogens are detected in electronic displays, which would then be subject to the restriction under the contested regulation. Furthermore, economic operators have no way of knowing, at the time of production, whether Member State authorities will use physical testing, and hence whether the thresholds would be able to be relied upon. This is in sharp contrast to the existing restrictions of HFRs under the RoHS Directive and the REACH Regulation, which both set minimum concentration thresholds.

110 It should be recalled that, according to the case-law, the principle of legal certainty requires, inter alia, that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals and undertakings, so that that those individuals and undertakings may know unambiguously their rights and obligations and take measures accordingly (see, to that effect, judgments of 17 July 2008, ASM Brescia, C‑347/06, EU:C:2008:416, paragraph 69; of 18 November 2008, Förster, C‑158/07, EU:C:2008:630, paragraph 67; and of 29 April 2010, M and Others, C‑340/08, EU:C:2010:232, paragraph 65).

111 In the present case, the ban at issue clearly precludes the use of existing or future HFRs in the enclosure or base of electronic displays. Furthermore, the contested regulation defines the terms ‘electronic display’ as ‘display screen and associated electronics that, as its primary function, displays visual information from wired or wireless sources’ and ‘[HFR]’ as ‘a flame retardant that contains any halogen’.

112 Having regard to those definitions, it is clear that the ban at issue is sufficiently clear, precise and predictable to allow undertakings to understand the scope thereof and the obligations which follow therefrom.

113 The applicant’s arguments that the ban at issue does not refer to individually identified substances and refers to HFRs as a group, including existing and future HFRs, are not such as to call that finding into question. In particular, the fact that the ban at issue refers to a class of substances defined in general terms is not, in itself, contrary to the principle of legal certainty, provided that the contours of that class are sufficiently clear. The applicant has failed to explain how it would be unable to identify which substances are flame retardants ‘that [contain] any halogen’, including any hypothetical new HFRs as may be developed in future.

114 As regards the absence of thresholds for the ban to apply, this is not at all an issue of legal certainty, but rather one of consistency with other instruments such as the REACH Regulation or the RoHS Directive, which issue has been examined in the context of the first plea in law. It is in fact clear from the contested regulation that no provision is made for tolerance thresholds for HFRs in the enclosure or base of electronic displays since, according to recital 15 of the contested regulation, the aim of the ban at issue is not to prohibit HFRs on account of their hazardousness, but rather to increase the recycling yield for those components of electronic displays made of plastic.

115 In the light of the foregoing, the fourth plea in law must be rejected as unfounded.

116 The applicant claims that the ban at issue does not comply with any of the different aspects of the principle of proportionality. It argues that the case-law of the Court of Justice on that principle dictates that decisions which the EU institutions take must (i) not exceed the limits of what is appropriate, (ii) be necessary in order to attain the objectives legitimately pursued by the legislative framework in question and (iii) be the least onerous measure; the disadvantages caused must not be disproportionate to the aims pursued.

117 In the first place, according to the applicant, the Commission exceeded the limits of what is appropriate: first, using the contested regulation instead of relying on the restrictions under the REACH Regulation and the RoHS Directive; second, by choosing a complete ban on HFRs in electronic displays instead of other, less onerous measures such as marking; third, by banning all existing and future HFRs, even those not subject to restrictions under the REACH Regulation or the RoHS Directive; and, fourth, by failing to set a minimum content threshold. Moreover, the ban at issue is not appropriate to tackle the broader issue of EEE plastic recycling and the circular economy.

118 In the second place, the applicant argues, first, that the ban at issue is not necessary as the stated objectives of the ban can and should be achieved under other relevant legislative instruments, in particular the REACH Regulation, the RoHS Directive and the WEEE Directive. The Commission has also not justified why it would be necessary to ban HFRs in electronic displays specifically, when the issue of hazardous substances in plastics is a broader issue and the proportion of plastics coming from electronic displays is more limited than the proportion of plastics coming from all EEE.

119 Second, the applicant submits that the ban at issue is not necessary in so far as (i) it extends to all substances possibly falling, now or in the future, into the category of HFRs as defined by the contested regulation, and (ii) there is no minimum concentration threshold for the ban to apply. Furthermore, the Commission has not provided any assessment justifying why it would have been necessary under the contested regulation to ban other substances than the substances already restricted under the REACH Regulation and the RoHS Directive, or to extend the ban on substances already restricted beyond the thresholds provided under the REACH Regulation and the RoHS Directive.

120 The applicant claims, third, that the ban on HFRs is not necessary since it will not achieve the stated objective in terms of the recycling of plastics.

121 In the third place, the applicant claims that the ban on HFRs is not the least onerous measure to which the Commission could have had recourse, inasmuch as it could have referred to the restrictions laid down by other legal instruments, such as the REACH Regulation, the RoHS Directive and the WEEE Directive, taken additional measures under those instruments, or taken initiatives to improve enforcement of the existing measures under those instruments.

122 Even if the Court was to consider that the contested regulation was the appropriate instrument for adopting the ban at issue, there were less onerous measures, taken together or individually, to which the Commission could have had recourse under the contested regulation, such as:

– banning only specific substances identified based on an assessment demonstrating a need to ban that substance specifically;

– including a threshold allowing for a ‘minimum’ content of HFRs (as done for the restrictions under the REACH Regulation and the RoHS Directive);

– imposing marking of plastics components and provision of detailed information requirements regarding type and quantity of the flame retardants going beyond the marking of flame-retardant content already required under point 2 of section D in Annex II to the contested regulation, if that existing requirement was deemed insufficient;

– imposing product design requirements that facilitate the separate collection of WEEE plastics containing HFRs, as identified in the impact assessment;

– imposing product design requirements that limit the need for the use of HFRs, such as, for example, requiring the use of standardised external power supplies;

– requiring the use of complementary recycling techniques such as chemical dissolution technologies designed to recover the polymer, remove additives and destroy legacy substances where present.

124 It should be recalled that, according to the settled case-law of the Court, the principle of proportionality is one of the general principles of EU law. In accordance with that principle, acts of the institutions of the European Union must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the measure in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgments of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 13; of 5 May 1998, United Kingdom v Commission, C‑180/96, EU:C:1998:192, paragraph 96; and of 23 September 2020, BASF v Commission, T‑472/19, not published, EU:T:2020:432, paragraph 108).

125 In so far as concerns judicial review of the conditions for implementing the principle of proportionality, having regard to the broad discretion which the Commission enjoys when it adopts implementing measures under Article 15 of the Ecodesign Directive (see paragraphs 92 and 93 above), only the manifestly inappropriate nature of such a measure, having regard to the objective which the Commission intends to pursue, can affect the lawfulness of that measure.

126 First of all, as regards the appropriate and necessary nature of the ban at issue, it should be observed that the circumstance that that ban could have been adopted under a different legal framework, or that different measures could have been taken, in response to a different concern, cannot call into question the appropriate and necessary nature of that measure, in the light of the objectives that it pursues.

127 As the Commission contends, the specific objective pursued by the ban at issue is, according to recital 15 of the contested regulation, to increase the recycling yield of certain plastic components of electronic displays and not, as the applicant claims, to deal more broadly with the issues of recycling plastics from all EEE, even though those objectives do partly overlap.

128 In the light of that specific objective and of the discretion which the Commission enjoys in that respect, the adoption of the ban at issue by the contested regulation, which establishes certain ecodesign requirements for electronic displays, in accordance with the Ecodesign Directive, rather than by means of other instruments such as the REACH Regulation or the RoHS Directive, does not appear to be manifestly inappropriate or unnecessary.

129 Contrary to the applicant’s claims in that respect, both the contested regulation and the impact assessment contain sufficient explanation of the need to ban the use of all HFRs in the enclosure and base of electronic displays, and not only those which are already subject to restrictions pursuant to the REACH Regulation or the RoHS Directive.

130 As regards the applicant’s argument that the Commission should have provided an assessment as to why it would have been necessary to ban all HFRs beyond the thresholds laid down by the REACH Regulation or the RoHS Directive, it is necessary to refer to paragraphs 55 to 61 above.

131 In so far as concerns the applicant’s argument that the ban at issue is not necessary inasmuch as it does not allow the stated objective of plastic recycling to be achieved, it should be pointed out that, as is clear from the impact assessment, the ban on HFRs in the enclosure and base of electronic displays is necessary in order to ensure that these plastic parts are recycled rather than incinerated. It is also clear from the impact assessment that, in the absence of those HFRs, the recycling of those parts is cost-effective, even in the presence of other substances that make such recycling more difficult. As regards marking requirements, such requirements would not be sufficient inasmuch as most electronic displays are shredded and incinerated rather than dismantled. Lastly, the identification of plastics containing HFRs would not be economically viable. The applicant has failed to demonstrate how these assessments set out in the impact assessment, carried out with a view to adopting the contested regulation, are manifestly incorrect.

132 Consequently, the applicant has failed to establish that the ban at issue is manifestly neither appropriate nor necessary to achieve the specific objective pursued by that ban.

133 Furthermore, contrary to the applicant’s claim, it is not obvious that other, less onerous measures were available for the purposes of achieving the objective pursued.

134 First, it is not apparent that measures adopted under the REACH Regulation, the RoHS Directive or the WEEE Directive would have been more appropriate and less onerous for achieving the objective pursued.

135 As regards the restrictions adopted under the REACH Regulation, these may be adopted with regard to substances which present certain hazards or an unacceptable risk to human health or the environment, but the objective of those restrictions is not to ensure that plastic recycling is cost-effective or that the recycling rate for certain categories of product, such as electronic displays, is attained.

136 In so far as concerns the RoHS Directive, its objective is to restrict the use of certain hazardous substances in EEE. Although the Commission acknowledges that it would have been possible, in principle, to use that directive to restrict the use of HFRs on account of the negative impact on the recyclability of EEE, such a rule would then apply to all EEE, except for those benefiting from a specific exemption. Such a ban would therefore be broader in scope than that provided for by the contested regulation, which applies solely to HFRs used in the enclosure or stand of electronic displays. The ban on HFRs in all EEE pursuant to the RoHS Directive would therefore not be a less onerous measure and would go beyond that which is necessary to achieve the objective pursued.

137 Moreover, the applicant has failed either to demonstrate or even explain how improving enforcement of the existing measures under those instruments would allow the objective pursued by the ban at issue to be attained.

138 As to the alternative measures enumerated by the applicant (see paragraph 122 above), it should be observed, as the Commission does, that either these would be far more onerous for manufacturers than the ban at issue, or they would not allow the legitimate objective to be attained.

139 First, as regards the measure consisting in banning only specific substances belonging to the group of HFRs, identified on the basis of an assessment demonstrating a need to ban that substance specifically, aside from the fact that such a measure would be more difficult to implement, it would not allow the objective pursued by the ban at issue to be attained, since the need to ban all HFRs has been clearly justified in the contested regulation and in the impact assessment on the grounds that its objective is to improve the recycling rate of certain plastic components in electronic displays.

140 Second, in so far as concerns the measure which consists in including a threshold allowing for a maximum content of HFRs, as is the case for the restrictions laid down by the REACH Regulation and the RoHS Directive, it is necessary to refer to paragraphs 55 to 61 above.

141 Third, the applicant claims that a measure consisting in imposing marking of plastic components and provision of detailed information requirements regarding type and quantity of the flame retardants going beyond the marking of flame-retardant content already required under point 2 of section D in Annex II to the contested regulation, if that existing requirement was deemed insufficient, would have been less onerous. However, it should be observed that such a marking measure would not allow the objective pursued – namely the recycling of certain components of electronic displays – to be attained, since most of those plastic components are shredded and incinerated rather than dismantled.

142 Fourth, as regards the measure which consists in imposing product design requirements that facilitate the separate collection of WEEE plastics containing HFRs, it should be observed, as the Commission does, that this is also more onerous than the ban at issue, because separation would still be necessary and recycling would be made more difficult than in the absence of HFRs. Moreover, that measure would not allow the objective pursued by the ban at issue to be attained, having regard to the Commission’s finding in the impact assessment that, currently, there exists no economically viable technique on account of the low value of the recycled plastic which may result therefrom.

143 Fifth, in so far as concerns the measure which consists in imposing product design requirements that limit the need for the use of HFRs, such as, for example, requiring the use of standardised external power supplies, such a measure would also be more onerous inasmuch as it would apply to all manufacturers, including those who have already ceased using HFRs in the enclosure or stand of electronic displays and for whom the issue to be addressed therefore no longer arises.

144 Sixth, as regards the measure which consists in requiring the use of complementary recycling techniques such as chemical dissolution technologies designed to recover the polymer, remove additives and destroy legacy substances where present, the applicant has failed to demonstrate how such a measure would allow the objective pursued to be attained, or how it would be economically viable for recyclers, bearing in mind the recyclability issues identified in the impact assessment.

145 Consequently, it must be held that the applicant has failed to demonstrate that there are manifestly less onerous measures which allow the objective pursued by the ban at issue to be achieved, with the result that no breach of the principle of proportionality can be established in the present case.

The sixth plea in law, alleging infringement of the principle of equal treatment

147 By its sixth plea, the applicant claims that the ban at issue breaches the principle of equal treatment or non-discrimination, on two grounds.

148 First, it discriminates against electronic displays vis-à-vis other categories of products. The ban on HFRs in the contested regulation is, to the applicant’s knowledge, the first regulation on ecodesign requirements which introduces a ban on the presence of certain substances. As such, electronic display manufacturers and their raw materials suppliers are treated less favourably than manufacturers and suppliers of other categories of products who only have to comply with any restrictions adopted under the REACH Regulation and the RoHS Directive.

149 Second, it discriminates against HFRs vis-à-vis other chemical substances, since HFRs are the only substances banned under the contested regulation. Although cadmium is ‘an additional obstacle to efficient management of the waste stream’, the restriction of cadmium under the RoHS Directive, unlike the restrictions of flame retardants under that directive, is subject to an exemption for the use thereof in electronic displays. Unlike HFRs, the contested regulation does not ban the use of cadmium, not even after the expiry of the exemption under the RoHS Directive, but introduces a specific marking for electronic displays containing cadmium. The ban on HFRs is, furthermore, discriminatory as regards other chemical substances used in electronic displays, which are not subject to bans and are not even assessed for their potential participation in issues with EEE plastic recycling.

151 According to the case-law, the general principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 23 and the case-law cited).

152 A breach of the principle of equal treatment as a result of different treatment presumes that the situations concerned are comparable, having regard to all the elements which characterise them. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (see judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraphs 25 and 26 and the case-law cited).

153 In the present case, as the Commission contends, the applicant has failed to explain in any way how the situation of other categories of products is comparable to that of electronic displays, having regard, in particular, to the objective of increasing the recycling rate for certain plastic components of those products, recycling issues arising from the presence of HFRs in those components, or the fact that the presence of HFRs is no longer necessary from a safety perspective, as there are alternative solutions which are already widely used.

154 Similarly, as regards the alleged inequality of treatment between HFRs and other substances, such as cadmium or other flame retardants, the applicant has failed to demonstrate in any way how those products are in a comparable situation in the light of the parameters set out in paragraph 152 above. As regards, in particular, the rules relating to cadmium, it is necessary to refer to the examination set out in paragraph 51 et seq. above. As regards the difference in treatment between HFRs and other flame retardants, such as phosphorous flame retardants, it is necessary to refer to paragraph 97 above.

155 Lastly, as regards the alleged inequality of treatment inherent in the ban at issue, in that it treats HFRs which are already subject to restrictions and those which are not in the same way, it should be observed that the ban on all HFRs is justified by the objective pursued by the ban at issue, which is to increase the recycling rate for certain plastic components of electronic displays. It is in fact clear from the impact assessment that the specific issue which the ban at issue is intended to remedy relates to the fact that it is not economically viable for recyclers to determine which specific HFRs are present in plastics, with the result that all plastics containing such substances are incinerated rather than recycled.

156 Consequently, in the light of the foregoing considerations, the applicant has failed to demonstrate that the Commission breached the principle of equal treatment by adopting the ban at issue in the contested regulation.

The seventh plea in law, alleging infringement of Article 15(1) of the Ecodesign Directive and Article 5a(1) to (4) and Articles 7 and 8 of Decision 1999/468/EC, and that the Commission acted ultra vires by adopting the contested regulation

158 By its seventh and last plea in law, the applicant claims that the adoption of implementing measures under the Ecodesign Directive follows the regulatory procedure with scrutiny, which requires the Commission to submit a draft measure to the Ecodesign Regulatory Committee for it to deliver its opinion on the draft. In the present case, significant amendments to the draft version of the contested regulation – including the re-instatement of the ban on HFRs – were made at the meeting of the Ecodesign Regulatory Committee on 19 December 2018. At that meeting, the Ecodesign Regulatory Committee delivered a positive opinion on the draft version of the contested regulation, which it had amended.

159 The applicant argues that Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), as amended by Council Decision 2006/512/EC of 17 July 2006 (OJ 2006 L 200, p. 11), exhaustively provides the instances where the Commission can ‘submit a proposal relating to the measure’, that is to say, make changes to the proposed draft measure. The Commission has that competence in instances where such a draft measure is ‘not in accordance with the opinion of the Committee, or if no opinion is delivered’. In the present case, the Ecodesign Regulatory Committee only delivered its positive opinion by a vote after having amended the draft contested regulation. This is also confirmed, according to the applicant, by the minutes of the respective Ecodesign Regulatory Committee meeting.

160 The applicant therefore takes the view that that the Commission breached Article 15(1) of the Ecodesign Directive and Article 5a(1) to (4) and Articles 7 and 8 of Decision 1999/468 and acted ultra vires. In doing so, the Commission also effectively circumvented the relevant Commission Directorates-General and external stakeholders which had previously expressed concerns with the blanket ban on HFRs.

162 Article 15(1) of the Ecodesign Directive provides that implementing measures adopted pursuant to that directive are to be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 19(3) of that directive.

163 Article 19(3) of the Ecodesign Directive provides that ‘where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof’.

164 Decision 1999/468 was repealed and replaced by Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13).

165 Article 13(1)(e) of Regulation No 182/2011 thus provides that where the basic act adopted prior to the entry into force of that regulation makes reference to Articles 7 and 8 of Decision 1999/468, Articles 10 and 11 of that regulation are to apply.

166 The Commission cannot, therefore, have infringed Article 7 and 8 of Decision 1999/468, since they were no longer in force when the procedure before the Ecodesign Regulatory Committee took place in the present case.

167 Furthermore, it should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, and Article 76(d) of the Rules of Procedure of the General Court, each application must indicate the subject matter of the dispute, the pleas and arguments relied on as well as a summary presentation of those pleas. That presentation must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its power of review (see judgment of 13 May 2020, Germanwings v Commission, T‑716/17, EU:T:2020:181, paragraph 145 and the case-law cited). Consequently, in so far as the applicant has failed clearly to explain how Articles 10 and 11 of Regulation No 182/2011 have been infringed in the present case, such an argument must be rejected as inadmissible.

168 As regards Article 5a of Decision 1999/468 – which remains applicable by virtue of the second paragraph of Article 12 of Regulation No 182/2011 – this provides, in paragraph 3 thereof:

‘If the measures envisaged by the Commission are in accordance with the opinion of the Committee, the following procedure shall apply:

(c) if, within three months from the date of referral to them, the European Parliament or the Council opposes the draft measures, the latter shall not be adopted by the Commission. In that event, the Commission may submit to the Committee an amended draft of the measures or present a legislative proposal on the basis of the Treaty;

169 However, it is clear that the applicant’s argument that the Ecodesign Regulatory Committee itself amended the draft regulation prior to delivering its positive opinion thereon, is based on an incorrect factual premiss.

170 In its defence, the Commission explained that, in order to obtain a positive opinion from the committee, the Commission had made modifications to its draft regulation, in accordance with Article 5a of Decision 1999/468. Thus, it is not the Ecodesign Regulatory Committee which modified the draft regulation, but the Commission, which had the necessary competence to do so. Following the meeting of the Committee, a measure was envisaged by the Commission in accordance with the Committee’s opinion, as provided by Article 5a(3) of Decision 1999/468.

171 It should therefore be held that the applicant has failed to provide any evidence that can cast doubt on the truth of those facts, as described by the Commission.

172 Moreover, the applicant’s claims that the Ecodesign Regulatory Committee could only give a positive or negative opinion on a draft, which could not be modified, must be rejected. There is no provision of EU law which provides that the committee cannot discuss a draft submitted by the Commission, propose modifications and see those modifications taken up by that institution. On the contrary, Article 4(5) of the Rules of Procedure of the Committee on the Ecodesign and Energy Labelling of Energy-Related Products provides ‘… before the vote, the chair shall inform the committee of the manner in which the discussions and suggestions for amendments have been taken into account, in particular as regards those suggestions which have been largely supported within the committee’.

173 Consequently, the seventh plea in law must be rejected as unfounded and the action dismissed in its entirety, without it being necessary to order the measures of inquiry sought by the applicant, referred to in paragraph 9 above. Suffice it to observe that the Commission did not rely in any way on those documents in order to support its position concerning the lawfulness of the contested regulation and that they do not appear to be necessary in order to give a ruling in the present case.

174 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

175 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> BSEF v Commission (Energy - Ecodesign requirements for electronic displays - Ban on halogenated flame retardants - Judgment) [2022] EUECJ T-113/20 (16 March 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T11320.html Cite as: ECLI:EU:T:2022:142, [2022] EUECJ T-113/20, EU:T:2022:142

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