Action brought on 18 August 2010 — Borax Europe v ECHA

(Case T-346/10)

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(2010/C 288/95)

Language of the case: English

Parties

Applicant: Borax Europe Ltd (London, United Kingdom) (represented by: K. Nordlander, lawyer and H. Pearson, Solicitor)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

—	declare the application for annulment admissible;

—

annul the decision by ECHA to identify certain borate substances as ‘substances of very high concern’ meeting the criteria set out in Article 57(c) of Regulation (EC) No 1907/2006 (‘REACH’) (1) and to add them to the Candidate List of Substances of Very High Concern for Authorisation (‘candidate list’) on 18 June 2010 (the ‘contested act’);

—	order ECHA to pay the Applicant’s costs for these proceedings.

Pleas in law and main arguments

The Applicant seeks the annulment of the decision by ECHA to identify certain borate substances as ‘substances of very high concern’ meeting the criteria set out in Article 57(c) REACH and to add them to the candidate list on 18 June 2010. The contested act was brought to the applicant’s attention by means of an ECHA press release of 18 June 2010.

The borate substances whose inclusion in the candidate list via the contested act the applicant challenges are: boric acid, CAS No 10043-35-3, EC No 233-139-2; disodium tetraborate, anhydrous; disodium tetraborate decahydrate; disodium tetraborate pentahydrate (CAS Nos 1330-43-4, 1303-96-4, 12179-04-3, EC No 215-540-4) (‘borates’).

In support of the application, the applicant puts forward three pleas in law.

First ground: the contested act should be annulled as it was based on Annex XV dossiers which contain manifest errors, leading to a breach of an essential procedural requirement in Article 59 of REACH. Those dossiers indicate, as the justification for ECHA action, that borates are currently classified in Part 3 of Annex VI to Regulation (EC) No 1272/2008, which is factually incorrect.

Second ground: ECHA adopted the contested act without discharging its function of performing an ‘on the merits’ assessment of whether borates meet the criteria referred to in Article 57(c) of REACH. Thus, in adopting the contested act, ECHA committed manifest errors of assessment, exceeded its powers and infringed the principle of good administration.

Third ground: finally, borates do not meet the criteria, referred to in Article 57(c) of REACH, for classification as toxic to reproduction category 1 or 2 under Directive 67/548. Accordingly, they are not ‘substances of very high concern’ and their inclusion in the candidate list via the contested act infringes Article 59(8) of REACH.

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(1)  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)