ORDER OF THE GENERAL COURT

12 December 2017 (*)

(REACH — Evaluation of substances — Triclosan — Application to intervene — Interest in the result of the case)

In Case T‑125/17,

BASF Grenzach GmbH, established in Grenzach-Wyhlen (Germany), represented by K. Nordlander and M. Abenhaïm, lawyers,

applicant,

v

European Chemicals Agency (ECHA), represented by W. Broere, C. Jacquet and M. Heikkilä, acting as Agents,

defendant,

supported by

Federal Republic of Germany, represented by T. Henze and D. Klebs, acting as Agents,

Kingdom of Denmark, represented by C. Thorning, M. Wolff and J. Nymann-Lindegren, acting as Agents,

and by

Kingdom of the Netherlands, represented by M. Bulterman and C. Schillemans, acting as Agents,

ACTION under Article 263 TFEU for annulment of the decision of the Board of Appeal of the European Chemicals Agency (ECHA) of 19 December 2016 relating to the substance evaluation of triclosan in accordance with Chapter 2 of Title VI 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),

THE GENERAL COURT (Fifth Chamber)

composed of D. Gratsias, President, A. Dittrich (Rapporteur) and P.G. Xuereb, Judges,

makes the following

Order

 Facts and proceedings

1        The applicant, BASF Grenzach GmbH, manufactures triclosan (CAS 3380‑34‑5) and is the sole registrant of that substance within the meaning of Article 3.7 of Regulation No 1907/2006.

2        Pursuant to Article 46(1) of Regulation No 1907/2006, ECHA, by decision of 19 September 2014, requested the applicant to provide additional information on triclosan. To that end, according to the decision, the applicant was requested to submit the following information:

–        an ‘Enhanced Developmental Neurotoxicity Study (test method: OECD Test Guideline 426 with the relevant elements of Extended One-Generation Reproductive Toxicity Study, OECD Test Guideline 443)’, which entailed tests carried out on rats (‘the rat test’);

–        a ‘Fish Sexual Development Test (test method: OECD Test Guideline 234) with zebrafish or Japanese medaka’ (‘the fish test’);

–        a ‘Simulation testing of Triclosan on ultimate degradation in fresh surface water (lake or river) and sea water performed as pelagic test (i.e. water only without addition of suspended solids) at an environmentally relevant temperature of at most 12 degrees centigrade as specified in Section III.I (test method: EU C.25 and OECD Test Guideline 309)’ (‘the persistence test’).

3        By its decision of 19 September 2014, ECHA also requested the applicant to submit the information available on the effects of triclosan on the cardiovascular system of certain laboratory animals and humans.

4        A deadline of 26 September 2016 for providing the information requested was set in the decision of 19 September 2014.

5        On 17 December 2014, the applicant filed an administrative appeal against ECHA’s decision of 19 September 2014.

6        On 19 December 2016, the Board of Appeal of ECHA adopted Decision A 018‑2014 relating to the substance evaluation of triclosan, by which it annulled the decision of 19 September 2014 in so far as that decision imposed an obligation on the applicant to provide information on the effects of triclosan on the cardiovascular system, and dismissed the appeal for the remainder (‘the contested decision’). Furthermore, a deadline of 26 December 2018 was set in the contested decision for providing the information requested resulting from, inter alia, the persistence test, the rat test and the fish test.

7        By application lodged at the Court Registry on 28 February 2017, the applicant brought an action seeking, in essence, annulment of the contested decision to the extent to which the Board of Appeal of ECHA had dismissed its administrative appeal.

8        On 10 April 2017, pursuant to Article 79 of the Rules of Procedure of the General Court, a notice was published in the Official Journal of the European Union indicating the date on which the application initiating proceedings in the present case been lodged and the names of the main parties (OJ 2017 C 112, p. 48). The form of order sought and a summary of the applicant’s pleas were also communicated to the public.

9        By document lodged at the Court Registry on 18 April 2017, PETA International Science Consortium Ltd, a private company limited by guarantee and registered in England and Wales (‘PISC’), applied for leave to intervene in support of the form of order sought by the applicant.

10      That application was served on the applicant and on ECHA in accordance with Article 144(1) of the Rules of Procedure of the General Court.

11      By document lodged at the Court Registry on 11 May 2017, the applicant stated that it had no objections to that application to intervene.

12      By document lodged at the Court Registry on 12 May 2017, ECHA stated that it opposed PISC’s application to intervene.

 Law

13      Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case, other than a dispute between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case.

14      It is settled case-law that the concept of an interest in the result of a case, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The expression ‘result’ is to be understood as meaning the operative part of the final decision which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested measure and whether its interest in the result of the case is established (order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, EU:T:2014:920, paragraph 21 and the case-law cited).

15      Moreover, it should be noted that, generally, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the party applying to intervene (order of the Vice-President of the Court of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 7).

16      In the light of the case-law referred to in paragraphs 14 and 15 above, the application to intervene lodged by PISC may be granted only if that company is directly affected by the contested decision and if it has a direct interest in the ruling on the form of order sought.

 PISC’s application to intervene in its capacity as a ‘representative association which aims to protect its members’ interests, in particular the reduction, and ultimate elimination, of animal testing’

17      In the first place, in order to demonstrate its interest in the result of the case, PISC expressly relies on the Court’s reasoning in paragraph 14 of the order of 26 February 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑125/03, not published, EU:T:2007:57. In that regard, PISC argues, essentially, that it operates as a representative association which aims to protect its members’ interests, in particular the reduction, and ultimate elimination, of animal testing. The associations that are members of PISC have a significant number of members and supporters. The present case, it submits, concerns questions of principle relating to animal welfare, which is expressly recognised in Article 13 TFEU and in Article 25(1) of Regulation No 1907/2006. The subject matter of the present dispute is the annulment of the decision of 19 September 2016 in so far as it requires a rat test and a fish test to be carried out, and raises questions in connection with the manner in which ECHA reaches its decisions on the need to require its registrants to carry out tests on animals. What is more, since 2011, PISC has submitted comments to ECHA with regard to dozens of substances in order to ensure that animal testing is conducted only as a last resort. Lastly, it has been recognised as an accredited stakeholder association by ECHA.

18      PISC’s arguments referred to in paragraph 17 above allude to, and enable a distinction in the present case to be drawn between, two situations in which, according to case-law, an interest in the result of a case may be found to exist in certain cases. The first is the situation in which an association is involved in the protection of the interests of operators active in a certain sector, and the second is in the case of an organisation for the protection of the environment.

 PISC’s status as a ‘representative association’

19      In the first place, it is settled case-law that representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members are allowed to intervene. More particularly, an association may be granted leave to intervene in a case if it represents an appreciable number of operators active in the sector concerned, its objects include that of protecting its members’ interests, the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members may therefore be affected to an appreciable extent by the judgment to be given (order of 26 February 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑125/03, not published, EU:T:2007:57, paragraph 14 and the case-law cited).

20      The phrase ‘if it represents an appreciable number of operators active in the sector concerned’, as mentioned in the case-law cited in paragraph 19 above, concerns ‘professional’ associations. In the present case, first, PISC has neither argued nor proved that it protects the interests of its members in the same way as a professional association. Second, that organisation has not shown that its members are operators which are active in the sectors of triclosan production or triclosan research.

21      In those circumstances, it cannot be held that PISC has an interest in the result of the present case according to the criteria set out in the case-law on the interest that associations representing companies active in a certain sector may have in intervening.

 PISC’s status as an ‘organisation for the protection of the environment’

22      In the second place, according to case-law, in so far as concerns applications to intervene submitted by organisations for the protection of the environment, the requirement for a direct, existing interest in the result of the case means either that the scope of the activities of such organisations must coincide with that of the region and sector concerned by the proceedings before the Court or, where the scope of their activities is wider, that they must be actively involved in protection programmes or studies relating to the region and sector concerned, the viability of which may be jeopardised if the contested measure were adopted (order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, EU:T:2014:920, paragraph 73 and the case-law cited).

23      In the present case, it cannot be inferred from the documents in the case file that PISC or its members are actively involved in protection programmes or studies relating to the sector concerned, the achievements of which may have been jeopardised by the adoption of the contested measure.

24      In that regard, PISC has, it is true, argued that, with regard to the substances referred to in the REACH regulation, it devotes itself to, among other things, promoting methods of refinement which make it possible to avoid animal testing. However, PISC has not established that there is a report or study that shows that triclosan is of particular concern and the achievements of which have been jeopardised by the adoption of the contested act. The mere claim that, since 2011, PISC has submitted comments to ECHA concerning dozens of substances in order to ensure that animal testing is conducted only as a last resort is too general and is therefore insufficient to show that there is a particular concern with regard to triclosan.

25      Furthermore, PISC has not demonstrated that it played a role, official or not, in the decision-making process which led to the adoption of the contested decision. During the course of the assessment of triclosan, PISC did not even attend the meeting of the ECHA Member State Committee, during which the discussion on the subject of that substance took place, and during which the ECHA decision requesting additional information on that substance was adopted.

26      In those circumstances, in the absence of evidence establishing specific activity linked to the substance in question, it cannot be held that PISC has an interest in the result of the present case according to the criteria set out in the case-law on the interest that organisations for the protection of the environment may have in intervening.

 The effect of PISC’s intervention during the administrative proceedings

27      In the second place, PISC states, in support of its application to intervene, that, on 6 October 2015, it was granted leave to intervene in the proceedings before the Board of Appeal of ECHA which ultimately led to the contested decision. According to PISC, the Board of Appeal acted according to the same principles as those which guide the assessment of a party’s interest in the result of the case before the Court. It follows, in its view, that, to the extent to which the Board of Appeal dismissed the appeal at last instance, PISC’s interest in the annulment of the contested decision also remains intact before the Court.

28      In that regard, without there being any need to adjudicate on the question whether the Board of Appeal acted on the basis of the same principles as those which guide an assessment of the interest in the result of a case before the Court, it must be held that, as ECHA has correctly argued in its observations on PISC’s application to intervene, neither the Rules of Procedure of the General Court nor the case-law of the EU Courts automatically confer on an intervener before the Board of Appeal of ECHA a right to intervene before the Court.

29      Furthermore, it should be noted that the fact that the Board of Appeal recognised that PISC had an interest in intervening in the administrative proceedings which led to the adoption of the contested decision does not imply that PISC is directly concerned by that decision. The question as to whether PISC’s legal situation is affected by the contested decision is alone determinant for the purpose of concluding that it has an interest in the result of the case.

 The alleged infringement of PISC’s procedural rights

30      In the third place, in PISC’s opinion, its interest in the result of the present case flows from the fact that, during the course of the proceedings which led to the adoption of the contested decision, the Board of Appeal infringed its procedural rights. Thus, first, PISC claims that it requested that due consideration be given to ‘minimising the distress caused to rats during the course of testing, in particular by means of anaesthesia before blood sampling, by dosing offspring orally with a micropipette and by considering alternatives to oral gavage for pups’. The Board of Appeal, however, misinterpreted that request and rejected it. Secondly, PISC states that, during the course of the appeal proceedings, in order to show that the rat test was unnecessary, it specifically referred to, and cited in its observations, the public summary of a study report on the endocrine-disrupting potential of triclosan. The applicant was requested to comment on PISC’s observations, and, subsequently, provided the complete version of that report. The Board of Appeal rejected that complete version on grounds of inadmissibility and refused to take it into account, without, however, ruling on the admissibility of the public summary. In doing so, PISC submits, the Board of Appeal infringed its procedural rights.

31      In this regard, it should be noted that a possible infringement of the intervener’s procedural rights in ongoing proceedings before the Board of Appeal of ECHA is irrelevant in regard to the question whether the contested decision which is the subject of the action for annulment before the General Court directly affects the legal situation of the applicant for leave to intervene.

32      Furthermore, it should be noted that PISC has not specifically stated which procedural right may have been infringed by the Board of Appeal of ECHA. Moreover, it should be noted that the mere fact that PISC’s arguments in support of the applicant’s claims during the course of the proceedings before the Board of Appeal were not wholly accepted does not, by itself, make it possible for an infringement of a procedural right to be established.

33      In the light of all of the foregoing, it must be held that PISC has not established that it has a direct, existing interest in the result of the case, for the purposes of the second paragraph of Article 40 of the Statute of the Court of Justice.

34      The application submitted by PISC to intervene in support of the form of order sought by the applicant must therefore be dismissed.

 Costs

35      Under Article 133 of the Rules of Procedure of the General Court, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings so far as PISC is concerned, a ruling must be given on the costs relating to its application to intervene.

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

37      The applicant and ECHA did not submit a claim relating to the costs incurred by those parties in the context of the proceedings concerning PISC’s application to intervene.

38      PISC, for its part, has asked the Court to reserve the decision on costs.

39      Since, having regard to Article 133 of the Rules of Procedure of the General Court, the decision on costs relating to PISC’s application to intervene cannot be reserved until the time of the ruling closing the main proceedings, a decision on the allocation of those costs must be made of the Court’s own motion.

40      In those circumstances, the Court takes the view that PISC, since it has been unsuccessful in its application to intervene, must be ordered to bear its own costs and that the main parties must each bear their own costs relating to that application.

On those grounds,

THE FIFTH CHAMBER OF THE GENERAL COURT

hereby orders:

1.      The application by PETA International Science Consortium Ltd to intervene is dismissed.

2.      PETA International Science Consortium Ltd, BASF Grenzach GmbH and the European Chemicals Agency (ECHA) shall each bear their own respective costs relating to the dismissed application to intervene.

Luxembourg, 12 December 2017.

* Language of the case: English.