Article 102(1) Rules of Procedure not just applying to measures published in OJ >> By their appeal, Polyelectrolyte Producers Group GEIE (PPG) (‘PPG’) and SNF SAS (‘SNF’) sought to have set aside the order of the General Court of the European Union of 21 September 2011 in Case T‑268/10 PPG and SNF v ECHA , by which that Court dismissed as inadmissible their action for annulment of the decision of the European Chemicals Agency (ECHA). By that decision, the ECHA identified acrylamide (EC No 201-173-7) as a substance meeting the criteria laid down in Article 57 of the REACH Regulation (Regulation 1907/2006) and included acrylamide on the list of substances for future inclusion in Annex XIV to that regulation, in accordance with Article 59 thereof (‘the contested decision’).
Article 57 of the REACH Regulation sets out the substances which may be included in Annex XIV to that regulation, which is a list of substances subject to authorisation. PPG is a European economic interest grouping which represents the interests of companies that are producers and/or importers of polyelectrolytes, polyacrylamide and/or other polymers containing acrylamide. SNF is one of its member companies. On 25 August 2009, the Netherlands submitted to ECHA a dossier which it had drawn up concerning the identification of acrylamide as a substance fulfilling the criteria set out in Article 57(a) and (b) of the REACH Regulation. Following the procedure set out in Article 59 of the REACH Regulation, ECHA, in the contested decision, identified acrylamide as fulfilling the criteria set out in Article 57 of that regulation and included acrylamide on the candidate list of substances. On 30 March 2010, the candidate list of substances including acrylamide was published on the ECHA website, in accordance with Article 59(10) of the REACH Regulation.
PPG and SNF raised a single ground of appeal alleging that the General Court erred in law in its interpretation and application of Article 102(1) of its Rules of Procedure and, consequently, infringed the principle of effective judicial protection. They maintain that the 14‑day period referred to in that provision must be applied to all published decisions, not only to those published in the Official Journal of the European Union.
The Court first of all that it was not disputed that a decision of ECHA concerning the inclusion of a substance on the list of candidate substances constituted a challengeable act, for the purposes of the first paragraph of Article 263 TFEU. Article 94(1) of the REACH Regulation provided that an action might be brought against a decision of ECHA, in accordance with Article 263 TFEU, where, inter alia, no right of appeal lied before the Board of Appeal of ECHA. That was the case in respect of decisions taken under Article 59 of the REACH Regulation.
The Court pointed out that in relation to published measures, Article 263(6) TFEU stated that proceedings were to be instituted within two months of the publication of the measure. In accordance with Article 102(1) of the Rules of Procedure of the General Court, where the period of time allowed for commencing proceedings against a measure adopted by an institution ran from the publication of that measure, that period ran from the end of the 14th day after publication of the measure in the Official Journal of the European Union.
The Court held that, contrary to what the General Court found in the order under appeal, it was not apparent from the wording of Article 102(1) of its Rules of Procedure that that article applied only to measures published in the Official Journal of the European Union. Therefore, it could according to the Court not be ruled out that Article 102(1) of the Rules of Procedure of the General Court applied to a measure which was published only on the internet, such as the contested decision. Moreover, in so far as the wording of Article 102(1) of the Rules of Procedure of the General Court could give rase to doubts, it was necessary, in the absence of any imperative reasons to the contrary, to favour an interpretation which did not result in the interested parties’ being time-barred and therefore depriving them of their right to resort to legal proceedings (see Case 117/78 Orlandi v Commission ).
More generally, the Court of Justice pointed out that, where the wording of a provision was unclear, account should be taken of the context of that provision and of the objectives which it pursued (see, to that effect, Case C‑149/11 Leno Merken ).
The Court considered that the objective of the 14‑day time‑limit laid down in Article 102(1) of the Rules of Procedure of the General Court was to ensure that interested parties have sufficient time within which to bring an action against published measures and, consequently, to observe the right to effective judicial protection, as was now laid down in Article 47 of the Charter of Fundamental Rights of the European Union.
The Court held that in so far as it was possible to interpret Article 102(1) of the Rules of Procedure of the General Court as referring to any published measure, irrespective of the means of publication, that provision must be interpreted in that way so as to ensure that the interested parties were not deprived, by relying on an additional 14 days within which to bring an action, of effective judicial protection. The Court found that, consequently, the General Court erred in law in finding that Article 102(1) applied only to measures published in the Official Journal of the European Union and thus declaring the action brought by PPG and SNF inadmissible.
The Court thus found that for that reason the single ground of appeal raised by the appellants must be upheld, and therefore their appeal, and the order under appeal must be set aside.
Text of judgment