14 July 2020 (*)

(Action for annulment — REACH — Substances of very high concern — Establishment of a candidate list for eventual inclusion in Annex XIV to Regulation (EC) No 1907/2006 — Decision identifying 4-tert-butylphenol as a substance meeting the criteria for inclusion in the list — Objection of inadmissibility — Act not open to challenge — Act merely implementing the decision — No interest in bringing proceedings — Inadmissibility)

In Case T‑640/19,

Sasol Germany GmbH,

SI Group — Béthune,

BASF SE,

represented by C. Mereu, P. Sellar and S. Saez Moreno, lawyers,

applicants,

European Chemicals Agency (ECHA), represented by M. Heikkilä and W. Broere, acting as Agents, and by S. Raes, lawyer,

defendant,

APPLICATION under Article 263 TFEU for the partial annulment of Decision ED/71/2019 of ECHA in so far as it includes 4-tert-butylphenol as a substance of very high concern in the list of substances identified with a view to their eventual inclusion in Annex XIV to 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, corrigendum OJ 2007 L 136, p. 3),

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, R. Barents and J. Laitenberger (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

1The applicants, Sasol Germany GmbH, SI Group — Béthune and BASF SE are manufacturers, suppliers and users of 4-tert-butylphenol (‘PTBP’). PTBP is a chemical substance mainly used as a monomer in chemical synthesis, for example for the production of polycarbonate, phenolic resins and epoxy resins. PTBP is classified, inter alia, as a substance toxic for reproduction under Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ 2008 L 353, p. 1).

2On 30 August 2016, in accordance with Article 59(3) of 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, corrigendum OJ 2007 L 136, p. 3), as amended, the Federal Republic of Germany submitted a dossier prepared in accordance with Annex XV to that regulation proposing the identification of PTBP as a substance of very high concern in accordance with Article 57(f) of Regulation No 1907/2006, namely as a substance with endocrine disrupting properties for which there is scientific evidence of probable serious effects to the environment which give rise to an equivalent level of concern to those of other substances listed in Article 57(a) to (e) of that regulation.

3Having received comments on the identification of PTBP from certain Member States and several interested parties, including the applicants, in the public consultation organised under Article 59(4) of Regulation No 1907/2006, the European Chemicals Agency (ECHA) referred the dossier to ECHA’s Member State Committee (‘the MSC’), in accordance with Article 59(7) of that regulation.

4At its meeting from 12 to 16 December 2016, the MSC did not reach unanimous agreement on the identification of PTBP. Accordingly, the opinion of the MSC was forwarded to the European Commission with a view to preparing a draft proposal for the identification of PTBP, in accordance with Article 59(9) of Regulation No 1907/2006.

5On 5 July 2019, the Commission adopted, in accordance with the procedure referred to in Article 133(3) of Regulation No 1907/2006, Implementing Decision (EU) 2019/1194 of 5 July 2019 on the identification of 4-tert-butylphenol (PTBP) as a substance of very high concern pursuant to Article 57(f) of Regulation No 1907/2006 (OJ 2019 L 187, p. 41, ‘the identification decision’). According to Article 1(1) of the identification decision, PTBP ‘is identified as a substance of very high concern pursuant to Article 57(f) of Regulation (EC) No 1907/2006 due to its endocrine disrupting properties with probable serious effects to the environment which give rise to an equivalent level of concern to those of other substances listed in Article 57(a) to (e) of that regulation’. In addition, Article 1(2) of the identification decision states that PTBP ‘shall be included in the candidate list referred to in Article 59(1) of Regulation (EC) No 1907/2006 …’. According to Article 2 of that regulation, the identification decision is addressed to ECHA.

6By application lodged at the Court Registry on 27 September 2019, the applicants brought an action under Article 263 TFEU for annulment of the identification decision, which was registered as Case T‑661/19 (Sasol Germany and Others v Commission).

7ECHA adopted Decision ED/71/2019 (‘the contested act’) by which that agency updated the candidate list, that is the list of substances identified with a view to their eventual inclusion in Annex XIV to Regulation No 1907/2006, by including, inter alia, PTBP in that list. That decision is dated 4 July 2019 and was published on ECHA’s website on 16 July 2019.

Procedure and forms of order sought

8By application lodged at the Court Registry on 25 September 2019, the applicants brought the present action. The applicants claim that the Court should:

–declare the action admissible and well founded;

–partially annul the contested act in so far as it includes PTBP as a substance of very high concern in the candidate list for eventual inclusion in Annex XIV of Regulation No 1907/2006; and

–order ECHA to pay the costs of these proceedings.

9By a separate document lodged at the Court Registry on 19 December 2019, ECHA raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court. It claims that the Court should:

–declare the application inadmissible;

–order the applicants to pay the costs.

10By documents lodged at the Court Registry on 3, 16 and 17 January 2020, the Federal Republic of Germany, the Kingdom of the Sweden and the Commission sought leave to intervene in the present case in support of the form of order sought by ECHA.

11By a document lodged at the Court Registry on 21 February 2020, the applicants submitted their observations on that objection of inadmissibility and claimed that the Court should:

–dismiss the objection of inadmissibility; or

–reserve its decision on admissibility until it has ruled on the merits of the present case.

Law

12Under Article 130(1) and (7) of the Rules of Procedure, the Court may give a decision on inadmissibility without going to the substance of the case, if a defendant makes an application asking it to do so. In the present case, as ECHA has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

13In support of the plea of inadmissibility, ECHA submits that the contested act does not produce binding legal effects on the applicants and is therefore not of direct concern to them.

14First, ECHA considers that the contested act is confirmatory and does not reflect its position on the identification and inclusion of PTBP in the candidate list. Rather, it was the identification decision that laid down a definitive position on the identification of PTBP and its inclusion in the candidate list. In this respect, ECHA refers to Article 59(9) of Regulation No 1907/2006 according to which, in the absence of unanimous agreement within the MSC, the Commission is to take a ‘final decision’ on the identification of a substance. Following that identification decision, ECHA has no choice other than to include the substance in question in the candidate list.

15Furthermore, ECHA disputes the fact that binding legal effects in the form of information obligations, as invoked by the applicants, stem from the contested act. Rather, those effects were triggered by the identification decision.

16Moreover, by its grounds for annulment, the action calls into question the assessment carried out by the Commission. Also, according to ECHA, even if the contested act were to be annulled, the identification decision would still continue to exist and ECHA would still be obliged to include the substance in question in the candidate list. Therefore, the act which should be challenged is the identification decision, since it is that decision which affects the applicants’ legal position.

17Secondly, ECHA submits that the contested act does not directly concern the applicants. Since the binding legal effects vis-à-vis the applicants in the form of information obligations stem from the identification decision, the legal position of the applicants was not altered by the contested act.

18The applicants submit, on the other hand, that their action brought against the contested act is admissible.

19They dispute the argument that the contested act is a purely confirmatory act. Relying on paragraph 22 of the order of 8 October 2012, ClientEarth v Council (T‑62/12, not published, EU:T:2012:525), they submit that the contested act contains new factors as compared with the identification decision and that, therefore, it cannot be regarded as merely confirmatory. In that regard, they maintain that Article 59(9) of Regulation No 1907/2006 gives the Commission only the power to identify a substance as a substance of very high concern. The Commission was, on the other hand, not competent to include a substance in the candidate list. ECHA was alone competent to decide on the inclusion of a substance in the candidate list under Article 59(10) of Regulation No 1907/2006. Consequently, assuming that the Commission is considered to have taken the decision to include the substance in question in the candidate list substances, the contested act should be annulled for that reason alone, since the Commission misused its powers and acted beyond its competence.

20Furthermore, the applicants point out that the contested act refers to 4 July 2019 as the date on which the decision was taken, whereas the identification decision was adopted on 5 July 2019. The date contained in the contested act invalidates the argument that it is purely confirmatory. A confirmatory decision could not have been taken before the confirmed decision. In this respect, the applicants also submit that a decision on the inclusion of a substance can be taken only after an identification decision. Therefore, ECHA infringed the procedural rules laid down in Article 59 of Regulation No 1907/2006.

21Furthermore, in referring to paragraph 52 of the judgment of 20 November 2008, Italy v Commission (T‑185/05, EU:T:2008:519), the applicants submit that the contested act also does not constitute a purely implementing measure since it is not designed merely to put into practical effect an earlier measure, or an earlier decision which produces only internal legal effects within the administration and does not affect the interests of third parties.

22Even assuming that the contested act is purely confirmatory, the present action is admissible since the applicants have also brought an action against the allegedly confirmed act, namely the identification decision. The applicants rely in that regard on the judgment of 11 May 1989, Maurissen and Union Syndicale v Court of Auditors (193/87 and 194/87, EU:C:1989:185, paragraph 26), in which the Court held that an action against a confirmatory act is inadmissible only if the confirmed decision has become final vis-à-vis the person concerned without any action having been brought before the Court within the prescribed period, and that, otherwise, the person concerned is entitled to contest either the confirmed decision or the confirmatory decision, or both.

23The applicants submit that the contested act has legal effects of its own. In that regard, they rely on the obligation to update the safety data sheets, as is apparent, in their view, from a combined reading of Article 31(1)(a), (6) and (9)(a) of Regulation No 1907/2006. Relying on the judgment of 30 April 2015, Polynt and Sitre v ECHA (T‑134/13, not published, EU:T:2015:254), they argue that the inclusion of a substance in the candidate list constitutes regulatory information, within the meaning of Annex II to Regulation No 1907/2006, requiring the updating of safety data sheets.

24In addition, the applicants rely on the existence of information obligations resulting from Article 34(a) of Regulation No 1907/2006 and submit that the inclusion in the candidate list constitutes ‘new information on hazardous properties’ within the meaning of that provision.

25Finally, the inclusion of a substance in the candidate list produces new legal effects in so far as substances included in that list will be assessed with a view to their eventual inclusion in Annex XIV and their being made subject to the authorisation procedure.

26The abovementioned obligations arise from the inclusion of PTBP in the candidate list which comes within ECHA’s sole competence, so that those obligations have their origin in the contested act.

27Therefore, the contested act directly concerns the applicants in so far as they are required to update the safety data sheet and communicate that information to the next actor or distributor up the supply chain.

28As a preliminary point, it should be noted that it is settled case-law that any measures adopted by the EU institutions, whatever their form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position are regarded as ‘challengeable acts’ within the meaning of Article 263 TFEU (judgment of 19 January 2017, Commission v Total and Elf Aquitaine, C‑351/15 P, EU:C:2017:27, paragraphs 35 and 36, and order of 22 January 2020, Daimler v Commission, T‑751/18, EU:T:2020:5, paragraphs 38 and 39). In order to determine whether an act may be the subject of an action for annulment, importance must be given to the actual substance of that act, the form in which an act or decision is adopted being in principle irrelevant, and the intention of its author (see, to that effect, judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).

29In the light of the foregoing, it is necessary to determine whether the contested act produces its own binding legal effects capable of affecting the applicants’ interests or if it should rather be considered as a purely implementing measure, that is a measure which, without giving rise to any rights or obligations for third parties, is designed merely to put into practical effect an earlier measure, or a measure adopted in order to implement an earlier decision which produces only internal legal effects within the administration and does not affect the interests of third parties (see, to that effect, judgments of 25 February 1988, Les Verts v Parliament, 190/84, EU:C:1988:94, paragraph 8; of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraphs 54 and 55; and of 20 November 2008, Italy v Commission, T‑185/05, EU:T:2008:519, paragraphs 51 and 52).

The question whether a measure produces binding legal effects must be assessed on the basis of objective criteria, such as the content of the measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see judgment of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraphs 54 and 55 and the case-law cited; judgment of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraphs 47 and 48).

32In that regard, first of all, it follows from the wording of Article 59 of Regulation No 1907/2006 that a decision on the identification and inclusion of a substance in the candidate list may be adopted under, as appropriate, paragraphs 6, 8 and 9 of that article. In addition, Article 59(10) of that regulation provides that ECHA ‘shall publish and update [the candidate list] on its website without delay after a decision on inclusion of a substance has been taken’ and thus presupposes that a decision on the inclusion of a substance in the candidate list is taken before ECHA may implement that inclusion by updating the candidate list on its website.

33In the present case, the contested act follows the identification decision addressed to ECHA which, according to its wording, identifies PTBP as a substance of very high concern under Article 57(f) of Regulation No 1907/2006 and which provides that PTBP is ‘included’ in the candidate list. Pursuant to Article 59(9) of that regulation, by that identification decision the Commission took a ‘final decision on the identification of the substance’. It follows that, by the contested act, ECHA could only implement the inclusion of PTBP in the candidate list and proceed with the publication of an updated version of that list, whereas the decision on the identification of PTBP and its inclusion in the candidate list was taken by the Commission in the identification decision.

34This corresponds in particular to ECHA’s intention as set out in the contested act itself. It is true that the contested act is entitled ‘Decision of the [ECHA]’. However, with regard to PTBP, ECHA referred to the identification decision in recital 12 of that act, while in recital 13 it is stated that ECHA, ‘pursuant to Article 59(9) and (10) [of Regulation No 1907/2006] shall now include this substance in the Candidate List’. Therefore, it should be noted that, as regards PTBP, ECHA merely implemented the identification decision under its circumscribed powers by triggering the process of updating the candidate list and its publication, so that PTBP appears in that list.

35However, it is settled case-law that it is the act of identifying a substance resulting from the procedure referred to in Article 59 of Regulation No 1907/2006 which is intended to produce binding legal effects vis-à-vis third parties within the meaning of the second sentence of the first paragraph of Article 263 TFEU (judgment of 7 March 2013, Bilbaína de Alquitranes and Others v ECHA, T‑93/10, EU:T:2013:106, paragraph 32; see also, to that effect, judgment of 30 April 2015, Polynt and Sitre v ECHA, T‑134/13, not published, EU:T:2015:254, paragraphs 36 and 37). In that regard, the case-law refers, inter alia, to the information obligations laid down in Article 7(2), Article 31(1)(c) and (3)(b) and Article 33(1) and (2) of that regulation, while specifying that those provisions refer to substances identified in accordance with Article 59(1) of that regulation or to substances included or listed in the candidate list.

36In the present case, the applicants submit, inter alia, that the inclusion of PTBP in the candidate list constitutes new information within the meaning of Article 31(9)(a) of Regulation No 1907/2006 and, therefore, triggered the obligation to update the safety data sheet as follows from a combined reading of Article 31(1)(a), (6) and (9)(a) of Regulation No 1907/2006.

37It is apparent from the case-law that it is the identification of a substance as being of very high concern as a result of the procedure laid down in Article 59 of that regulation which constitutes new information that may require the suppliers of that substance to update the safety data sheet concerned (see, to that effect, judgment of 25 September 2015, PPG and SNF v ECHA, T‑268/10 RENV, EU:T:2015:698, paragraph 42). Thus, the identification decision should be regarded as the act which, in the present case, triggered the obligation to update the safety data sheet.

38In this respect, it should also be noted that it is the identification of a substance as being of very high concern which constitutes information which may affect risk management measures or new information on hazards, within the meaning of Article 31(9)(a) of Regulation No 1907/2006. That is not called into question by paragraphs 35 and 36 of the judgment of 30 April 2015, Polynt and Sitre v ECHA (T‑134/13, not published, EU:T:2015:254), relied on by the applicants. In that judgment, the Court held that the identification of a substance as a substance of very high concern and the fact that the substance is subject to authorisations granted under Title VII or restrictions applied under Title VIII of the regulation constitute regulatory information, which must appear on the safety data sheet. Contrary to the applicants’ contention, it is not apparent from that judgment that an act by which, following a decision to that effect by the Commission, ECHA implements an inclusion in the candidate list, in particular by carrying out the publication and updating referred to in Article 59(10) of Regulation No 1907/2006, constitutes as such new regulatory information that may require the suppliers of that substance to update the safety data sheet.

39The same applies concerning the obligation to communicate certain information to other actors in the supply chain laid down in Article 34(a) of Regulation No 1907/2006. According to the wording of that article, that obligation is triggered in the event of ‘new information on the hazardous properties’ of a substance. However, it is the identification of a substance within the meaning of Article 59(1) of that regulation, in this case the identification made by the Commission’s identification decision, which can be classified as new information within the meaning of Article 34(a) of that regulation.

40It should also be noted that, according to Article 1(3) of Regulation No 1907/2006, the provisions relied on by the applicants are underpinned by the precautionary principle which, according to recital 69 of that regulation, requires careful attention to be paid to substances of very high concern. Thus, it would be contrary to the precautionary principle if the information obligations under the above provisions were to be triggered only at the moment, following a decision to that effect by the Commission or ECHA, of the implementation of an inclusion of a substance identified as being of very high concern in the candidate list. That implementation, in the form of the publication of the candidate list and its updating, within the meaning of Article 59(10) of Regulation No 1907/2006, has the sole function of presenting, in the interests of transparency, in an exhaustive manner the substances identified with a view to their eventual inclusion in Annex XIV.

41As regards the applicants’ argument that the inclusion of a substance in the candidate list would produce its own legal effects in so far as the substances included in that list would be assessed with a view to their eventual inclusion in Annex XIV and their being made subject to the authorisation procedure, it is apparent from a combined reading of Articles 57 and 59 of Regulation No 1907/2006 that a substance is eligible for inclusion in Annex XIV as soon as it has been identified as a substance of very high concern, that is when a substance meets the criteria referred to in Article 57 and has been identified in accordance with the procedure laid down in Article 59 of that regulation.

42Thus, Article 57 of Regulation No 1907/2006 provides that the substances listed under (a) to (f) ‘may be included in Annex XIV in accordance with the procedure laid down in Article 58’. However, according to Article 58(1) of that regulation, the decision on inclusion in Annex XIV is taken in relation to ‘substances referred to in Article 57’. It is also apparent from the wording of Article 59(1) of that regulation that the candidate list contains ‘[substances identified] for eventual inclusion in Annex XIV’.

43Therefore, the risk of being subsequently included in Annex XIV and thus subject to the authorisation scheme arises at the moment a substance is identified as meeting one of the criteria referred to in Article 57 of Regulation No 1907/2006, so that an act by which ECHA implements that identification does not as such change the applicants’ legal position in that regard.

44It follows that the contested act does not produce binding legal effects, in addition to those produced by the identification of PTBP as a substance of very high concern as carried out by the Commission in the identification decision, so that the contested act is a purely implementing measure pursuing purely declaratory purposes, which ECHA adopted under its circumscribed powers in order to implement the identification decision.

45As to the categorisation of the contested act as purely confirmatory, it should be noted that, according to settled case-law, an action for the annulment of a decision which merely confirms a previous decision not contested within the time limit for bringing proceedings is inadmissible (see order of 21 March 2018, UD v Commission, T‑574/17, not published, EU:T:2018:176, paragraph 19 and the case-law cited). However, a decision can be regarded as a mere confirmation of an earlier decision only if it contains no new factors as compared with an earlier measure and was not preceded by any re-examination of the situation of the addressee of the earlier measure (see, to that effect, judgment of 17 November 2016, Fedtke v EESC, T‑157/16 P, not published, EU:T:2016:666, paragraph 18).

46Furthermore, it should be noted that the case-law relating to purely confirmatory acts entails that the same institution adopts both the contested act and the confirmatory act. From that perspective, these two acts are adopted by the same institution on the same legal basis. In any event, the classification of an act as purely confirmatory presupposes that the author of that act is competent to re-examine the allegedly confirmed act.

47In the present case, it must be held that ECHA was not entitled to re-examine the identification decision adopted by the Commission or to add new elements to it. Contrary to what the applicants appear to suggest, in a situation such as that in the present case, the decision on the identification of the substance and its inclusion in the candidate list is taken by the Commission.

48Article 59(9) of Regulation No 1907/2006 conceives that Commission decision as a final position which therefore may not be re-examined and confirmed by ECHA, which, under Article 59(10) of that regulation, has sole competence to carry out the inclusion, that is to publish and update the candidate list, ‘without delay after a decision on inclusion of a substance has been taken’. It is clear, moreover, from the contested act itself that ECHA, first, considered that the identification decision contained the Commission’s final position on the identification and inclusion of PTBP in the candidate list and, secondly, merely, by adopting under its circumscribed powers the contested act, implemented the inclusion of PTBP in that list by means of the publication of a list and its updating. Therefore, since ECHA was not entitled to re-examine the identification decision, it must be held that the contested act cannot be classified as a confirmatory act.

49Lastly, the applicants’ argument that the contested act refers to 4 July 2019 as the date on which the decision was taken, whereas the identification decision was adopted on 5 July 2019, with the result that ECHA infringed the procedural rules laid down in Article 59 of Regulation No 1907/2006, should be examined.

50In that regard, it should be noted that, although the contested act bears the date 4 July 2019, it refers, in recital 12 thereof, to the identification decision, so that it must be found that, in practical terms, the contested act was adopted in accordance with the requirements of that identification decision. Moreover, the contested act did not take effect and the candidate list as updated in the light of the inclusion of PTBP was not published until 16 July 2019, that is, after the date of that identification decision. It does not follow from that error of dating that the content of ECHA’s decision differs from that of the identification decision or that ECHA’s decision produces its own binding legal effects of such a kind as to affect the applicants’ interests.

51For the sake of completeness, it must be stated that the applicants cannot rely on a legal interest in bringing proceedings against the contested act. Such an interest, which, according to settled case-law, is a precondition for the admissibility of an action, presupposes that the annulment of the measure must of itself be capable of having legal consequences and that the action must be likely, if successful, to procure an advantage for the party who brought it (see order of 30 April 2007, EnBW Energie Baden-Württemberg v Commission, T‑387/04, EU:T:2007:117, paragraph 96 and the case-law cited).

52However, in the present case, it must be noted that any annulment of the contested act would not release the applicants from their obligations arising from the identification of PTBP by the identification decision, as described in paragraphs 35 to 38 above. Moreover, even if the contested act were annulled, ECHA could only maintain PTBP in the candidate list, as published following the identification decision, because that decision enjoys a presumption of legality unless it is annulled or unless interim measures are taken under Article 278 TFEU. Also, the protection of the applicants’ interests is not undermined since they are able to challenge the identification decision, which, moreover, they did in their action in Case T‑661/19, Sasol Germany and Others v Commission, and it is only if the identification decision is annulled by the Court that ECHA is required to correct the candidate list by removing PTBP from that list.

53It follows from all the foregoing that the objection of inadmissibility raised by ECHA must be upheld and the present action must be dismissed as inadmissible on the ground that the contested act does not constitute a challengeable act producing binding legal effects in respect of the applicants and, moreover, on the basis of the applicants’ lack of an interest in bringing proceedings.

54Pursuant to Article 144(3) of the Rules of Procedure, where the defendant lodges a plea of inadmissibility or of lack of competence, as provided in Article 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. Furthermore, in accordance with Article 142(2) of the Rules of Procedure, intervention is to become devoid of purpose, inter alia where the application is declared inadmissible.

55Since the objection of inadmissibility raised by ECHA has been upheld in the present case and this order consequently brings the proceedings to an end, there is no longer any need to adjudicate on the applications to intervene submitted by the Federal Republic of Germany, the Kingdom of Sweden and the Commission, respectively.

Costs

56Under 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.

57Since the applicants have been unsuccessful in their action, they must be ordered to bear their own costs and to pay those of ECHA, in accordance with the form of order sought by ECHA, with the exception of those costs relating to the applications to intervene.

Under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application for leave to intervene has been decided upon, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Consequently, the Federal Republic of Germany, the Kingdom of Sweden and the Commission shall bear their own costs relating to their respective applications to intervene. In addition, the applicants and ECHA shall each bear their own costs relating to those applications for leave to intervene.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

2.There is no longer any need to adjudicate on the applications to intervene of the Federal Republic of Germany, the Kingdom of Sweden and the European Commission.

3.Sasol Germany GmbH, SI Group — Béthune and BASF SE shall bear their own costs and shall pay the costs incurred by the European Chemicals Agency (ECHA), with the exception of those relating to the applications to intervene.

4.Sasol Germany GmbH, SI Group — Béthune, BASF SE, the European Chemicals Agency (ECHA), the Federal Republic of Germany, the Kingdom of Sweden and the Commission shall each bear their own costs relating to the applications to intervene.

Luxembourg, 14 July 2020.

Registrar

President

—

Language of the case: English.