Case T‑639/20,TIB Chemicals AG v. European Commission, provided a useful reminder that the Commission does not have to do an impact assessment when adopting a classification proposal.
I hope this will let the matter rest.
And, in the likelihood that this point will come back, I’ve cut and pasted the relevant section of the judgement below.
Of course, there may one day be a classification whose impact will meet the threshold of the significant economic, environmental or social impacts test. Maybe when a proposal for ethanol as a CMR gets out, it would meet that threshold?
Judgement
The seventh plea in law, alleging failure, on the part of the Commission, to fulfil its obligation to carry out an impact assessment before adopting the contested act
– Arguments of the parties
191 The applicant claims, in essence, that, in adopting the contested regulation without having first carried out and documented an impact assessment, the Commission breached its commitments under the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 2016 (OJ 2016 L 123, p. 1; ‘the Interinstitutional Agreement’), specifically point 13 thereof.
192 It should be noted that, according to the applicant, a classification of DOTL as ‘Repr. 1B’ would have a considerable impact on the use of that substance in so-called XPE drinking water pipes, that is to say, cross-linked polyethylene drinking water pipes, in which DOTL has been used for decades. Such a classification would result in a phase-out of that use, while substitutes are probably not currently available. Those consequences would have been taken into account if an impact assessment had been carried out.
193 The applicant submits that the Commission was required to carry out such an impact assessment under the second sentence of Article 295 TFEU, which states that interinstitutional agreements may have binding effect. Point 13 of the Interinstitutional Agreement indicates its intention to create legal effects for the future when it provides that the Commission ‘will carry out’ impact assessments. Thus, and in contrast to point 16 of the agreement which states that the Commission ‘may’ supplement the impact assessment, it has no discretion in that regard. The applicant can invoke that binding effect of the Interinstitutional Agreement, the objective of which, according to recital 2 thereof, is to strengthen transparency and safeguard the rights of EU citizens and the competitiveness of businesses. Furthermore, the obligation to carry out impact assessments is a general principle of sound legislation, emphasised by Article 191(3) TFEU, which concerns environmental law regulations.
194 The applicant maintains in the reply, first, that the Commission’s argument that there is a conflict between the Interinstitutional Agreement, as presented by the applicant, and Regulation No 1272/2008 is not convincing. Point 13 of the agreement explicitly refers to environmental impacts, not only to social and economic impacts. Moreover, the reduction of environmental effects is also one of the main objectives of Regulation No 1272/2008. Second, the reference to an ‘undue delay’ in Article 37(5) of that regulation, as regards the adoption of delegated acts, does not overrule the procedural requirement laid down in point 13 of the Interinstitutional Agreement. Third, the use, in the Interinstitutional Agreement, of the verbs in the future (in particular ‘will proceed’) does not mean that the Commission was not required to carry out an impact assessment, but rather that that was an unconditional obligation. Fourth, the Court of Justice merely stated, in paragraphs 82 and 85 of the judgment of 3 December 2019, Czech Republic v Parliament and Council(C‑482/17, EU:C:2019:1035), that there was no obligation to carry out an impact assessment in every circumstance, and it put an emphasis on the question whether the EU legislature was in a particular situation and whether it was able to exercise its discretion properly. Fifth, the three European institutions that are parties to the Interinstitutional Agreement are not the ‘beneficiaries’ of the requirement to perform an impact assessment, but are bound by that requirement and the absence of an impact assessment could render an EU act invalid.
195 The Commission contends that that plea is unfounded.
– Findings of the Court
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In that regard, it should be noted that point 13 of the Interinstitutional Agreement provides as follows:
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‘The Commission will carry out impact assessments of its legislative and non-legislative initiatives, delegated acts and implementing measures which are expected to have significant economic, environmental or social impacts. The initiatives included in the Commission Work Programme or in the joint declaration will, as a general rule, be accompanied by an impact assessment.
In its own impact assessment process, the Commission will consult as widely as possible. The Commission’s Regulatory Scrutiny Board will carry out an objective quality check of its impact assessments. The final results of the impact assessments will be made available to the European Parliament, the Council and national Parliaments, and will be made public along with the opinion(s) of the Regulatory Scrutiny Board at the time of adoption of the Commission initiative.’
197 As regards the legislative process, the Court of Justice has already held that an obligation to carry out an impact assessment in every circumstance does not follow from the wording of points 12 to 15 of the Interinstitutional Agreement (judgment of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 82).
198 Those points show, first, that the European Parliament, the Council of the European Union and the Commission recognise the contribution of impact assessments in improving the quality of EU legislation and that those assessments are a tool to help the three institutions concerned reach well-informed decisions. Second, those points stipulate that impact assessments must not lead to undue delays in the law-making process or prejudice the co-legislators’ capacity to propose amendments, for which it is moreover provided that additional impact assessments may be carried out when the Parliament and the Council consider it to be appropriate and necessary. Third, those same points note that the Commission will carry out impact assessments of its legislative initiatives which are expected to have significant economic, environmental or social implications. Fourth, it is stated that the Parliament and the Council, when examining the Commission’s legislative proposals, are to take full account of the Commission’s impact assessments (judgment of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 83).
199 It follows that the preparation of impact assessments is a step in the legislative process that, as a rule, must take place if a legislative initiative is liable to have such implication (judgment of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 84).
200 In addition, the Court of Justice has held that not carrying out an impact assessment cannot be regarded as a breach of the principle of proportionality where the EU legislature is in a particular situation requiring it to be dispensed with and has sufficient information enabling it to assess the proportionality of an adopted measure (judgment of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 85).
201 In the present case, it should be noted that, as is apparent from the case-law cited in paragraph 197 above, it does not follow from point 13 of the Interinstitutional Agreement that the Commission is required, in all circumstances, to carry out an impact assessment of its delegated acts.
202 The applicant merely claims, in paragraph 90 of the application, that classification of DOTL as ‘Repr. 1B’ would have a considerable impact on the use of that substance in so-called XPE drinking water pipes (that is to say cross-linked polyethylene drinking water pipes), in which DOTL has been used for decades. Such a classification would, according to the applicant, result in the phase-out of that use, while currently substitutes are probably not available.
203 It must be stated that the applicant relies on matters that have not been proven and which refer, moreover, to a specific issue, relating to a certain type of drinking water pipes, which do not make it possible to establish, without further explanation, significant economic, social or environmental consequences such as to require the Commission to carry out an impact assessment (see paragraph 198 above).
204 It should be noted, moreover, that such an obligation does not follow from the provisions of Article 37 of Regulation No 1272/2008, governing the procedure for harmonised classification and labelling, either, and that, on the contrary, such an analysis is not provided for at any of the stages of that procedure. According to Article 37(5) of that regulation, the Commission is to adopt delegated acts without undue delay where it finds that the harmonisation of the classification and labelling of the substance concerned is ‘appropriate’. To that end, it must take into account, first of all, the proposal submitted pursuant to Article 37(1) to (3) of that regulation, next, the RAC’s opinion and, lastly, the observations made during the public consultations, in accordance with Article 37(2) and (4), although those elements, in particular the RAC’s opinion, are not binding on the Commission.
205 Therefore, in the context of the procedure at issue and subject to the findings made in paragraphs 196 to 203 above, the exercise of the Commission’s delegated power is based, in essence, on scientific data justifying a harmonised classification and labelling decision, both where it follows the RAC’s opinion and in the event that the Commission adopts a decision different from that proposed in that opinion.
206 It follows from the foregoing that the Commission was under no obligation to carry out an impact assessment under point 13 of the Interinstitutional Agreement in the context of the procedure for harmonised classification and labelling which led to the adoption of the contested regulation.
207 It follows that the applicant’s seventh plea in law must be rejected and the action must be dismissed in its entirety.