On 7 October 2015 the EU General Court delivered a judgment in Case T-689/13 Bilbaina de Alquitranes and Others v Commission. The case is an application for partial annulment of the Commission Regulation (EU) No 944/2013 (''the contested regulation'') in so far as it classifies pitch, coal tar, high-temp ("CTPHT") as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance. The applicants include members of Cefic's Coal Chemicals Sector Group (''CCSG'') as well as downstream users of CTPHT and were represented by a Fieldfisher team led by partner Koen Van Maldegem. The Court annulled the concerned classification of CTPHT as toxic for the aquatic environment based on a manifest error of assessment committed by the Commission.
CTPHT is a Substance of Unknown or Variable composition, Complex reaction products or Biological materials ("UVCB substance"), which contains Polycyclic aromatic hydrocarbons ("PAHs"), and which is used mainly to produce refractories and electrode binders for the aluminium and steel industry.
In September 2010, the Netherlands submitted a dossier to the European Chemicals Agency (''ECHA'') proposing a harmonised classification for CTPHT as Carcinogenic 1A (H350), Mutagenic 1B (H340), Toxic for reproduction 1B (H360FD), Aquatic Acute 1 (H400), and Aquatic Chronic 1 (H410), pursuant to Regulation (EC) No 1272/2008 on the classification, labelling, and packaging of substances and mixtures (''CLP Regulation''). In its opinion adopted in November 2011, ECHA's Risk Assessment Committee (''RAC'') confirmed the proposal submitted by the Netherlands.
The Netherlands and ECHA disregarded studies submitted by CCSG on CTPHT and instead based the classification of CTPHT on an alternative approach, namely to regard CTPHT as a mixture and apply the summation method. According to that approach, the 16 PAH constituents of CTHPT were analysed separately in accordance with their aquatic toxicity effects.
On 2 October 2013, the European Commission adopted the contested regulation, in which CTPHT was classified as Carcinogenic 1A (H350), Mutagenic 1B (H340), Toxic for reproduction 1B (H360FD), Aquatic Acute 1 (H400), and Aquatic Chronic 1 (H410).
Eighteen companies decided to appeal against the classification of CTPHT as toxic for the aquatic environment.
The Court focussed its assessment of the case on the "manifest error of appraisal" argument brought by the applicants, and in particular on the issue of the solubility of CTPHT in water.
Two principal sets of arguments on manifest error of appraisal were upheld in that regard:
(i) It was established that “neither the RAC’s opinion on CTPHT nor the background document contains any reasoning which demonstrates that, in assuming that all of the PAHs present in that substance dissolve in the water phase and are available to aquatic organisms, account was taken of the low water solubility of CTPHT” (paragraph 33). When asked to show where it had taken CTPHTs solubility into account, the Commission was unable to persuade the General Court that it had done so.
(ii) It was concluded that “by assuming that all of those PAHs dissolve in water, the Commission therefore, in essence, based the classification in question on the assumption that 9.2% of CTPHT could dissolve in water. However, as can be seen from point 1.3 of the background document, such a value is not realistic, given that the maximum rate is 0.0014%” (paragraph 34). The Commission’s scientific findings that it relied on elsewhere were used against it to undermine its assumption that 100% of CTPHT would dissolve into water.
The judgment has far-reaching consequences for EU chemicals litigation. In particular, the case sets an important precedent since, to our knowledge, it is the first time that the Court has ruled clearly that the Commission, and indirectly ECHA, has committed a manifest error of assessment in the review of chemicals. So far, when chemical legislation was concerned, and REACH and CLP in particular, the Court tended to refer to (i) complex scientific and technical facts, (ii) the broad power of discretion of the EU institutions (e.g. Commission and ECHA) and (iii) the precautionary principle in order to limit its review and justify the assessment made by ECHA or the Commission. This argumentation almost always resulted in judgments supporting the authorities.
This also means that, from now on, the Commission and ECHA will have to demonstrate that they have taken into account comments and scientific data submitted by concerned companies and will have to duly justify the reasons for not agreeing with or following such data.
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