CJEU decides that letter from ECHA to the French government is a legal act capable of judicial review

The General Court has annulled a decision which took the form of a letter from the European Chemicals Agency (ECHA) addressed to the French Ministry of Ecology regarding Esso Raffinage’s (Esso) non-compliance with the EU chemicals regulation (REACH) registration obligations.

In its judgment, the Court decided that the letter was a legal act which could be reviewed by the Court, and granted the oil company standing to bring the case.

This judgment confirms that, when it comes to deciding which acts are reviewable, the Court of Justice of the European Union (CJEU) looks beyond the form of the decision to examine the legally binding effects it produces. By contrast, the Court takes a disappointingly formalistic approach to the standing criteria applicable to individuals (including NGOs and companies).

Regulation 1907/2006/EC (REACH) lays down detailed rules for the registration of chemicals by manufacturers and importers. Under Article 41(5) REACH, the European Chemicals Agency has the duty to carry out a compliance check in respect of a minimum percentage of registration dossiers to verify that they include all of the required documentation and evidence.

ECHA carried out such a compliance check in respect of the registration dossier submitted by Esso Raffinage (Esso). On this basis, on 6 November 2012 ECHA issued a decision under Article 41(3) REACH that the registration dossier did not comply with REACH and gave the applicant until 6 November 2013 to submit additional information concerning ten separate matters.
Esso failed to provide the requested information in respect of two of those matters, instead sending alternative information. This prompted ECHA to send a letter to the French Ministry of Ecology on 1 April 2015, which was also notified to Esso, stating that the registration was still not in compliance with REACH. A document was attached to the letter which set out ECHA’s conclusions as to why the alternative information was not acceptable.

Following that, Esso applied to the General Court under Article 263 TFEU for annulment of the letter.

The case is admissible because the letter sent by ECHA to France is considered legally binding

ECHA, supported by the governments of France, Germany and the Netherlands, argued that the case was inadmissible because the letter was not legally binding. Since the Member States are responsible for taking enforcement action against companies which have not complied with their registration obligations under REACH, the purpose of the letter was intended to confirm the previous decision on non-compliance and to provide the French Ministry of Ecology with a non-binding and scientific opinion to assist its enforcement actions.

The General Court disagreed. ECHA’s letter could not be considered a simple confirmation of its decision of 6 November 2012 because it provided an analysis of the new information provided by Esso and conclusions as to why it was, in part, unacceptable. Therefore, the letter constituted a decision under Article 42(1), which requires ECHA to check the information submitted in response to a decision on non-compliance and issue any new decisions necessary. Therefore, the Court considered that the letter produced binding effects for both Esso and the French Republic and, as a result, was reviewable by the General Court under Article 263 TFEU.

Even if the ministry of ecology is the only addressee of the letter, Esso is directly and individually concerned

The Court then looked briefly at the question of whether Esso met the criteria of direct and individual concern laid down in Article 263. Esso argued that, since the letter should have been adopted in the form of a decision addressed to the company, there was no need to show direct and individual concern.

The Court disagreed, recalling that the question of whether a person is the addressee of a decision should be understood in a formal sense. Therefore, since ECHA addressed the letter to the French Ministry of Ecology only, Esso was required to show direct and individual concern.
With regard to direct concern, the Court recalled that the criterion of direct concern involves a two-pronged test, namely whether the act affects the legal situation of the applicant and whether it requires implementing measures. The Court concluded that Esso was directly concerned, referring to its finding that the letter produced legal effects for the company. It also found that no implementing measures were required because, while the Member States are responsible for enforcement of REACH, it is ECHA’s responsibility to decide if the registration dossier is in compliance. Esso was also found to be individually concerned, because the letter was an assessment of the information submitted by the company following a decision of which it was the addressee. The fact that Esso received a copy of the letter confirmed this.

The Court went on to annul the letter on the ground that it had not been adopted in compliance with the requisite decision-making procedure.

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