The General Court of the European Union, specifically its Fifth Chamber, has declared inadmissible the action brought by Exxonmobil Petroleum & Chemical BVBA against the European Commission and the European Chemicals Agency (ECHA). The case, known as T-121/23, centred on the inclusion of the chemical substance phenanthrene in a list of substances identified for eventual inclusion in Annex XIV to Regulation (EC) No 1907/2006 (REACH Regulation), also known as the REACH Candidate List.
Background of the Dispute
The dispute traces back to 19 December 2018, when ECHA issued Decision ED/88/2018, including phenanthrene on the list of substances of very high concern. Following a failed attempt to annul this decision, Exxonmobil, a member of the European Petroleum Refiners Association (Concawe), submitted new scientific studies challenging the persistent character of phenanthrene in sediment. The Commission, after consulting with ECHA, decided against requesting a re-examination of phenanthrene's status, prompting Exxonmobil to seek annulment of this refusal.
Court's Reasoning
The General Court, led by President J. Svenningsen, determined that Exxonmobil's action was inadmissible. The Court emphasized that the Commission's refusal to re-examine phenanthrene's inclusion was not a challengeable act under Article 263 TFEU. The Court explained that such a refusal does not bring about a distinct change in legal status, as it is a mere procedural step preceding a re-examination of the decision.
Furthermore, the Court noted that the EU's REACH Regulation does not explicitly provide a process for re-examining a substance's inclusion in the candidate list. However, it acknowledged that any decision based on REACH can be re-examined in light of new information. Nevertheless, the Commission's refusal to initiate this re-examination process does not constitute a legal measure affecting Exxonmobil's interests in a manner that could be challenged in court.
Implications of the Ruling
The ruling reinforces the procedural framework of the REACH Regulation, affirming that the Commission has discretion in deciding whether to re-examine a substance's inclusion in the candidate list. It also clarifies the limitations of legal recourse available to corporations in disputes involving environmental and public health regulations in the EU.
Exxonmobil Petroleum & Chemical BVBA has been ordered to bear its own costs and pay those incurred by the European Commission and ECHA. This decision marks a significant moment in the ongoing dialogue between corporate interests and regulatory bodies in the realm of environmental protection and chemical safety within the European Union.
