Sygn. akt C-150/06
ORDER OF THE COURT (Eighth Chamber)
March 2007 (*)
(Appeal – Directive 67/548/EEC – Refusal to declassify rosin as a dangerous substance – Action for annulment – Act not open to challenge – Breach of the right to an effective legal remedy – Action for damages – Appeal clearly unfounded)
In Case C-150/06 P,
APPEAL under Article 56 of the Statute of the Court of Justice, brought on 10 March 2006,
Arizona Chemical BV, established in Huizen (Netherlands),
Eastman Belgium BVBA, established in Kallo (Belgium),
Cray Valley Iberica SA, established in Madrid (Spain),
represented by C. Mereu and K. van Maldegem, avocats,
appellants,
the other parties to the proceedings being:
Commission of the European Communities, represented by X. Lewis and F. Simonetti, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
Republic of Finland,
intervener at first instance,
THE COURT (Eighth Chamber),
composed of E. Juhász, President of the Chamber, J. Malenovský (Rapporteur) and T. von Danwitz, Judges,
Advocate General: J. Mazák,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
By their appeal, Arizona Chemical BV, Eastman Belgium BVBA and Cray Valley Iberica SA seek to have set aside the order of the Court of First Instance of the European Communities of 14 December 2005 in Case T‑369/03 Arizona Chemical and Others v Commission [2005] ECR II‑5839, ‘the order under appeal’), by which that Court dismissed as inadmissible their action for annulment of an act of 20 August 2003 (‘the contested act’) by which the Commission of the European Communities refused their request for the withdrawal of the chemical substance called rosin from the list of dangerous substances set out in Annex I to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967(I), p. 234), as amended in particular by Council Directive 92/32/EEC of 30 April 1992 (OJ 1992 L 154, p. 1) (‘Directive 67/548’), and for compensation for the damage purportedly suffered.
Legal context
Directive 67/548 classifies certain chemical substances on the basis of their intrinsic properties. The classification of a substance as ‘dangerous’, and its inclusion in Annex I to that directive, requires appropriate labelling to be affixed to the packaging as a pre-condition for the placing of that substance on the market, showing in particular danger symbols, standard phrases indicating the special risks arising from the dangers involved in using the substance and standard phrases relating to the safe use of the substance.
Article 28 of Directive 67/548 provides that the amendments necessary for adapting the Annexes to that directive to technical progress are to be adopted in accordance with the procedure laid down in Article 29 of that directive. Before launching that procedure, the Commission is to consult a working group.
Under that procedure, the Commission submits a draft of the measures to be taken to the committee established under Article 29 of Directive 67/548, which is composed of representatives of the Member States (‘the Regulatory Committee’). If the measures envisaged are in accordance with the opinion of the Regulatory Committee, the Commission is to adopt them. If those measures are not in accordance with the opinion of the Committee, or if no opinion is delivered, the matter is to be referred to the Council of the European Union.
Facts
The appellants manufacture and market rosin and rosin derivatives. Rosin is a naturally occurring substance derived from the pine tree and used in a variety of products such as paper, adhesives, paints and cosmetics. Pursuant to Commission Directive 93/72/EEC of 1 September 1993, which adapted Directive 67/548 to technical progress for the 19th time (OJ 1993 L 258, p. 29), rosin was classified in Annex I to Directive 67/548 as a sensitising – hence dangerous – substance.
Following that amendment, the appellants brought certain scientific data and arguments to the attention of the Commission’s working group in order to demonstrate that rosin had been incorrectly classified. However, the working group concluded that rosin should not be declassified.
The appellants requested the Commission to take such measures as were necessary to withdraw rosin from the list of dangerous substances in Annex I to Directive 67/548. By letter of 20 August 2003, the Commission told the appellants that they had not provided appropriate reasons to declassify rosin.
By application lodged at the Registry of the Court of First Instance on 29 October 2003, the appellants brought an action for annulment of the contested act. In support of their application, they submitted that the contested act was unlawful because the classification of rosin had been decided on the basis of incorrect information.
By separate document lodged at the Registry of the Court of First Instance on 4 February 2004, the Commission entered a plea of inadmissibility, in accordance with Article 114 of the Rules of Procedure of the Court of First Instance, which was upheld in the order under appeal.
The order under appeal
The Court of First Instance dismissed at the outset the argument put forward by the appellants that the preliminary phase of the examination of the intrinsic properties of the substances is ‘administrative’.
Referring to the case-law of the Court of Justice, the Court of First Instance also held that an act of the Commission which amounts to a rejection must be appraised in the light of the nature of the request to which it constitutes a reply. Accordingly, in the case before it, the contested act rejecting the appellants’ request could not be assessed independently of the act expressly referred to in that request, namely, the proposal for the amendment of Directive 67/548 – and that proposal is not an act open to challenge.
With regard to the argument that the action was admissible by virtue of the appellants’ participation in the procedure for adapting Directive 67/548 to technical progress, the Court of First Instance referred to the case-law in terms of which the fact that a person is involved in some way or other in the procedure leading to the adoption of a Community measure is capable of distinguishing that person individually in relation to the measure in question only if the applicable Community legislation grants him certain procedural guarantees. As it was, the Court of First Instance found that there were no express or implied procedural rights protecting the appellants and, in consequence, that the contested act did not constitute an act open to challenge under the fourth paragraph of Article 230 EC.
The Court of First Instance also rejected the argument alleging breach of the appellants’ right to an effective legal remedy.
With regard to the claim for compensation, the Court of First Instance held at paragraph 118 of the order under appeal that the claim was partially time-barred. Moreover, with regard to the claim for compensation in so far as it was not time-barred, the Court of First Instance ruled, at paragraph 124 of the order, that – contrary to the requirements laid down in Article 44(1)(c) of the Rules of Procedure of the Court of First Instance – the application did not unequivocally, coherently and fully set out the evidence for the alleged damage. The Court of First Instance therefore dismissed the claim for compensation as inadmissible.
Forms of order sought
The appellants claim that the Court should:
– declare the appeal admissible and well founded;
– set aside the order under appeal;
– declare admissible the claims submitted in Case T‑369/03;
– give a ruling on the merits or, in the alternative, refer the case back to the Court of First Instance for a decision on the merits; and
– order the Commission to pay the costs of the present proceedings in their entirety.
The Commission contends that the Court should:
– dismiss the appeal;
– order the appellants to pay the costs.
The appeal
In support of their claim that the order under appeal should be set aside, the appellants put forward five pleas in law, each of which shall be examined in turn.
By way of a preliminary point, it should be noted that, under Article 119 of the Rules of Procedure, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned order.
The first plea in law
Arguments of the parties
The appellants submit that the Court of First Instance erred in law in so far as it held that the contested act was not of direct and individual concern to them for the purposes of the fourth paragraph of Article 230 EC, without addressing the question whether that act was addressed to them for the purposes of that provision.
The Commission contends that the Court of First Instance did not err in law in its construction of the fourth paragraph of Article 230 EC, or in its interpretation of the case-law referred to in the order under appeal in support of that construction.
Findings of the Court
As the Court of First Instance noted at paragraph 53 of the order under appeal, it is common ground that the contested act is a refusal on the part of the Commission, addressed to the appellants, to propose to the Regulatory Committee, for the 29th adaptation of Directive 67/548, a draft amendment along the lines sought by the appellants.
It is established case-law that an act of the Commission which amounts to a rejection must be appraised in the light of the nature of the request to which it constitutes a reply (see, in particular, Case 42/71 Nordgetreide v Commission [1972] ECR 105, paragraph 5, and Joined Cases C‑15/91 and C‑108/91 Buckl and Others v Commission [1992] ECR I‑6061, paragraph 22).
The Court of First Instance was thus entitled to hold that, in order for the Commission’s refusal to take steps for the withdrawal or amendment of an act to constitute in itself an act the lawfulness of which is open to challenge under the fourth paragraph of Article 230 EC, the act that the Commission has refused to withdraw or to amend must itself have been open to challenge under that provision. By the same token, the Court of First Instance acted quite correctly in examining whether the acts expressly referred to in the appellants’ request – that is to say, the draft amendment of Directive 67/548 and the act amending that Directive – constitute actionable measures for the purposes of the fourth paragraph of Article 230 EC.
In that regard, it is common ground that the draft amendment does not constitute an actionable measure because it is merely provisional and preparatory in nature, and the appellants have not sought to demonstrate that they were individually and directly concerned by an amendment of Directive 67/548.
Consequently, contrary to the assertions of the appellants, the Court of First Instance did not err in law in finding – after placing the contested act in its general context – that it is not an act open to challenge.
The first plea in law must accordingly be rejected as clearly unfounded.
The second plea in law
By the second plea in law, the appellants claim that the Court of First Instance erred in law in finding that neither the Commission’s assessment of the scientific data on rosin that they had provided, nor its ‘final decision’ that those data were irrelevant for the purposes of the declassification of that substance, constituted steps in an administrative procedure open to review. The correct view, according to the appellants, is that the process for adapting Directive 67/548 to technical progress separates into two distinct phases: an administrative phase followed by a legislative phase. In the present case, the contested act marks the conclusion of the first phase. Thus the Court of First Instance failed to take proper account of the nature of the procedure in the course of which the contested act was adopted.
The Commission contends that the distinction drawn between the administrative and the legislative aspects of the decision-making procedure has no bearing in the present case; it serves only to deflect from the main issue, namely the admissibility of the action for annulment brought by the appellants.
The appellants’ argument that the procedure leading to the adoption of the draft amendment of Directive 67/548 separates into two phases must be rejected. There is no provision in the directive for a preliminary ‘administrative’ procedure consisting in the assessment of chemical substances, such as rosin, which concludes with an ‘act’ like the contested act, and which may be followed by a second phase which concludes with a draft amendment of the directive. The amendments necessary for the adaptation to technical progress of the annexes to Directive 67/548 are adopted in accordance with the procedure laid down in Article 29 of that directive. That provision provides simply that the procedure is to be launched by the Commission’s submission of draft measures to the Regulatory Committee, and makes no mention of a preliminary procedure along the lines suggested by the appellants.
Furthermore, the Court has not been provided with any evidence to support a finding that, notwithstanding the wording of Article 29, such a preliminary procedure exists.
It must therefore be held that the contested act cannot be regarded as an act by which an ‘administrative’ procedure is brought to a close. In actual fact, it constitutes an act adopted upon the Commission’s examination of the data on rosin, and that examination cannot be dissociated from the procedure leading to the draft amendment of Directive 67/548. As it is, the appellants have not produced any evidence to show that the nature of the procedure, taken as a whole, had a bearing on the admissibility of the action before the Court of First Instance.
The second plea in law must therefore be rejected as clearly unfounded.
The third plea in law
By their third plea in law, the appellants maintain that the Court of First Instance erred in holding that the contested act was not a definitive administrative act; that the fact that the appellants were the addressees of that act was not enough to justify the admissibility of their action for annulment; and that, in the absence of procedural guarantees in their favour, they were not – so far as the contested act was concerned – individually concerned for the purposes of the fourth paragraph of Article 230 EC. The appellants complain, in particular, that the Court of First Instance found that the condition relating to individual concern was not satisfied despite the appellants’ participation in the procedure at issue and the breach of the ‘implied’ procedural guarantees that they enjoyed.
In the Commission’s submission, the appellants have not shown the existence of particular circumstances by virtue of which they possess certain attributes capable of distinguishing them individually in relation to the contested act. Moreover, the Commission regards this third plea in law as no more than a reformulation of the first and second pleas.
As regards the ground of appeal relating to the existence of procedural guarantees, suffice it to note that the appellants merely contest the grounds of the order under appeal in so far as those grounds are based on the assertion – regarded by the appellants as incorrect – that the Commission’s assessment of the scientific data in question did not constitute a step in an administrative procedure. In the light of the considerations set forth in paragraphs 30 to 32 of the present order, that ground of appeal must be rejected.
For the rest, the arguments put forward by the appellants amount to no more than a repetition of those adduced in support of the first and second pleas in law.
In the light of the foregoing, the third plea in law must be rejected as clearly unfounded.
The fourth plea in law
By their fourth plea in law, the appellants allege breach of their right to an effective legal remedy, which is a recognised principle of Community law forming an integral part of the system of legal remedies provided for in the EC Treaty. In the absence of a legal remedy before the national courts in respect of the contested act, that principle requires that the appellants have access to the Community Courts in order to have the legality of that act assessed, even if the conditions laid down in the fourth paragraph of Article 230 EC are not satisfied.
In the Commission’s submission, the Court of First Instance did not err in law in rejecting the appellants’ arguments.
It should be recalled that, although the condition relating to individual concern within the meaning of the fourth paragraph of Article 230 EC must be interpreted in the light of the principle of effective judicial protection by taking account of the various circumstances that may distinguish an applicant individually, such an interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts (see Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 44).
It follows from that case-law that the appellants’ argument that, solely by virtue of the right to an effective legal remedy, they must be allowed to bring an action for annulment, falls to be rejected. Their interpretation of that right cannot have the effect of setting aside the conditions laid down in the fourth paragraph of Article 230 EC. Thus those conditions must be satisfied even if – as the appellants maintain in the present case – they have no possibility of bringing an action before the national courts. However, it is clear from the analysis of the reasons rehearsed in relation to the first three pleas in law that the appellants have failed to show that they had the requisite standing to bring an action or that the contested act was open to challenge.
The fourth plea in law must therefore be rejected as clearly unfounded.
The fifth plea in law
By their fifth plea in law, the appellants maintain that the Court of First Instance erred in law in finding that their action was time-barred. The Court of First Instance was also mistaken on the question whether there was a causal link between the contested act and the alleged damage, as well as on the question of its justification.
The Commission contends that this plea in law is ineffective, because the appellants have not challenged the part of the order under appeal in which the claim for compensation is dismissed as inadmissible on grounds of failure to comply with Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, under which the application must set out a summary of the pleas in law relied on.
The Court has already ruled that the Court of First Instance is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself (Case C‑214/05 P Rossi v OHIM [2006] ECR I‑7057, paragraph 37).
Accordingly, the Court of First Instance was fully entitled – after pointing out that, under Article 44(1)(c) of its Rules of Procedure, each application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based – to dismiss the claim for compensation submitted to it on the ground that that claim did not satisfy those conditions. Indeed, the application lodged with the Court of First Instance did not indicate, clearly and unequivocally, coherently and fully, the evidence for the alleged damage or the causal link between that damage and the allegedly unlawful conduct. The appellants have not placed any concrete evidence before the Court to show that the application to the Court of First Instance satisfied those conditions.
Furthermore, according to the case-law of the Court, where one of the grounds adopted by the Court of First Instance is sufficient to sustain the operative part of its order, any defects that might vitiate other grounds given in the order concerned have, in any event, no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, to that effect, Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraph 68 and the case-law cited).
In the present case, the grounds of the order under appeal concerned by the plea alleging that the Court of First Instance erred in law in its deliberations concerning the time-barred status of the claim for compensation are supernumerary. Accordingly, that plea cannot lead to the annulment of the order under appeal and, in consequence, it is ineffective.
The fifth plea in law must therefore be rejected as clearly unfounded.
In the light of all the foregoing, the appeal must, pursuant to Article 119 of the Rules of Procedure, be dismissed in its entirety.
Costs
Under Article 69(2) of the Rules of Procedure, which applies to appeals by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs against the appellants and the latter have been unsuccessful in their pleas, they must be ordered to pay the costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1. The appeal is dismissed.
2. Arizona Chemical BV, Eastman Belgium BVBA and Cray Valley Iberica SA shall bear the costs.
[Signatures]
* Language of the case: English.
