UK: Landmark Rulings On The Time-Limits For Commencing Proceedings Against ECHA Decisions

Last Updated: 7 October 2013
Article by Koen Van Maldegem

The Court of Justice ('CJ') has issued two landmark rulings in Cases C-625/11 P and C-626/11 P PPG and SNF v ECHA. The CJ set aside the judgments of the General Court, clarifying two important issues: first, based on a progressive interpretation of the Rules of Procedure of the General Court, the CJ stated that the time-limit for commencing proceedings under Article 102(1) of those Rules applies not only to measures published in the Official Journal of the European Union, but also to decisions published on the internet, namely the decision of the European Chemicals Agency ('ECHA') to include a substance in the 'Candidate List' for eventual inclusion in Annex XIV of Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restrictions of Chemicals ('REACH'). In practical terms, this means that the period of two months to institute proceedings runs from the end of the 14th day following the publication of the decision on the internet. Second, the CJ confirmed that a measure can be challenged even before its publication since the publication of a measure is not a precondition for bringing proceedings against it. 

Partner Koen Van Maldegem, together with co-counsel Ruxandra Cana, represented the applicants in these two cases.


Polyelectrolyte Producers Group GEIE ('PPG') is a European Economic Interest Grouping that represents the interests of producers and importers of polyelectrolytes, polyacrylamide and other polymers containing acrylamide, of which SNF SA is a member. Pursuant to Article 59 REACH, upon submission of a dossier by the Netherlands and unanimous agreement of the ECHA Member State Committee, ECHA included acrylamide on the Candidate List of substances fulfilling the criteria of Article 57 REACH, for eventual inclusion in Annex XIV REACH as a substance of very high concern. On 30 March 2010, the Candidate List in question was published on the ECHA website in accordance with Article 59(10) REACH.

The issues

Broadening of the scope of application of Article 102(1) of the Rules of Procedures of the General Court

In Case C-625/11 P, the CJ clarified the scope of Article 102(1) of the Rules of Procedure of the General Court, which states that where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period shall be calculated from the end of the 14th day after publication of the measure in the Official Journal of the European Union.  Under Article 263 TFEU, challenges against published measures must be instituted within two months of their publication.  According to the CJ, the first sentence of Article 102(1) is potentially applicable to any published measure, regardless of the mode of publication, and seeks to preserve the interested parties' right to effective judicial protection. Therefore it was held that the two-month time-limit for challenging ECHA's decisions published on its website runs from the end of the 14th day after their publication.

Start of the period for bringing proceedings before publication

In Case C-626/11 P, the CJ stated that the two-month time-limit for bringing an action under Article 263 TFEU does not prevent the parties from issuing proceedings before the publication of the contested measure, provided that the measure has been adopted. In the case at issue, the application for annulment of ECHA's decision was lodged after unanimous agreement was reached in the ECHA Member State Committee on the identification of acrylamide as a substance of very high concern and after formal adoption of ECHA's decision by its Director, but before the publication of the contested decision on the ECHA website. According to the CJ, on the date the application was lodged, the contested decision had been definitely adopted, and since publication is not a precondition for bringing proceedings against a measure, it declared the action admissible.

Impact of the rulings 

The two rulings secure the rights and interests of chemical companies subject to ECHA decisions by giving them more time to prepare their cases against ECHA.  Given that litigation in this field requires the submission of complex scientific and legal arguments, which accuracy is essential, the rulings represent a milestone in securing effective judicial protection of their businesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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