Joined Cases C‑65/21P and C‑73/21P to C‑75/21

56.In support of their claims for damages, the appellants rely on the findings of the General Court and the Court of Justice in the annulment judgments. They must therefore be understood as basing their claims on the breach of the Commission’s obligation identified by the General Court and the Court of Justice in the annulment judgments. Of particular relevance, in that regard, is the General Court’s finding(59) that ‘[the Commission] failed to comply with its obligation to take into consideration all the relevant factors and circumstances’.(60)

57.In that context, it is apparent from the passages of the annulment judgments referred to in points7 and 10 of this Opinion that the Commission’s manifest error of assessment was made in applying the specific rules for classifying substances, set out in point4.1.3.5.5 of AnnexI to Regulation No1272/2008. That error, made in the course of applying a concrete rule of law, consisted in the failure to take due account, for the purposes of classifying CTPHT, of the proportion in which the 16PAH constituents are present in that substance and of their chemical effects.

58.It must therefore be held that, as the appellants correctly observe in their replies at first instance, the rule of law conferring rights on them in the present case was the Commission’s duty of diligence, in conjunction with the provisions on the classification of substances contained in point4.1.3.5.5 of AnnexI to Regulation No1272/2008. The scope of the Commission’s duty of diligence was therefore governed by the provisions of Regulation No1272/2008.

D.The first part of the fourth ground of appeal

59.The appellants criticise the General Court for not analysing the seriousness of the Commission’s breach of its duty of diligence, understood as the obligation to take all relevant factors into consideration in the exercise of its powers.

60.In that regard, it is undoubtedly true that the General Court, in the judgments under appeal, did not expressly analyse that point. It decided to reject the argument based on breach of that duty.

61.Nonetheless, as is apparent from point55 of this Opinion, it is impossible to analyse the seriousness of a breach of the duty of diligence in the abstract, without regard to the rules of law applied. Moreover, it is not inconceivable in my view that the analysis of the seriousness of the breach of the rules of law applied may simultaneously constitute the analysis of the seriousness of the breach of the duty of diligence committed in applying those rules. That would be the case where the circumstances under analysis were of equal relevance to both breaches.

62.In my view, that is the situation in the present case. The General Court did not cast doubt on the findings made in the annulment judgments that the unlawfulness of the contested act arose from a manifest error of assessment on the part of the Commission, consisting in the failure to take all the relevant factors and circumstances into account in classifying CTPHT. The General Court’s reasoning on point4.1.3.5.5 of AnnexI to Regulation No1272/2008 relates to the reasons why that error was made, or in other words why relevant factors other than those expressly referred to in that point were not taken into consideration. The analysis relating directly to point4.1.3.5.5 of AnnexI to Regulation No1272/2008 automatically extends, in my view, to the duty of diligence owed by the Commission in the application of that rule. The lack of clarity and the difficulties in interpreting the provisions of AnnexI to Regulation No1272/2008 regarding the consideration that can be given to factors other than those expressly provided for when applying point4.1.3.5.5 of AnnexI to Regulation No1272/2008 are two factors which are relevant both to breach of that point and to breach of the duty of diligence owed in applying it. Those factors constitute a flaw which gave rise to both of those breaches.

63.Accordingly, the General Court was right, in my view, despite already having decided to reject the argument based on breach of the duty of diligence, to hold ‘for the sake of completeness’(61) that the finding that there had not been a sufficiently serious infringement of the summation method applied equally, and on the same grounds, to breach of the duty of diligence.(62)

64.It will nonetheless be necessary to examine whether the General Court was right to hold that the error made in applying point4.1.3.5.5 of AnnexI to Regulation No1272/2008 was excusable. That issue is raised by the second part of the fourth ground of appeal, which is not the subject of this Opinion.

65.In the light of the foregoing, I take the view that the first part of the fourth ground of appeal should be dismissed as unfounded.

VII.Conclusion

66.Having regard to all of the foregoing considerations, I suggest that the Court should reject the first part of the fourth ground of appeal.

1Original language: French.

2Judgments of 16December 2020, SGL Carbon v Commission (T‑639/18, not published, EU:T:2020:628; ‘the first judgment under appeal’); of 16December 2020, Industrial Química del Nalón v Commission (T‑635/18, EU:T:2020:624; ‘the second judgment under appeal’); of 16December 2020, Deza v Commission (T‑638/18, not published, EU:T:2020:627; ‘the third judgment under appeal’); and of 16December 2020, Bilbaína de Alquitranes v Commission (T‑645/18, not published, EU:T:2020:629; ‘the fourth judgment under appeal’) (together, ‘the judgments under appeal’), which are the subject matter, respectively, of the appeals in Cases C‑65/21P, C‑73/21P, C‑74/21P and C‑75/21P.

3CTPHT is within the category of substances of unknown or variable composition, complex reaction products or biological materials (‘UVCBs’), because it cannot be fully identified by its chemical composition.

4Judgment of 7October 2015, Bilbaína de Alquitranes and Others v Commission (T‑689/13, not published, EU:T:2015:767).

5Judgment of 22November 2017, Commission v Bilbaína de Alquitranes and Others (C‑691/15P, EU:C:2017:882).

6Regulation of the European Parliament and of the Council of 16December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No1907/2006 (OJ 2008 L353, p.1).

7Paragraphs15 to 22 of the judgments under appeal. While the key passages of those judgments are in identical terms, their numbering differs. For the sake of clarity I will therefore refer in the course of my analysis to the paragraphs of the first judgment under appeal, identifying the corresponding paragraphs of the other judgments under appeal in footnotes.

8T‑689/13, not published, EU:T:2015:767.

9Commission Regulation of 2October 2013 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2013 L261, p.5).

10C‑691/15P, EU:C:2017:882.

11As well as the judgments of 16December 2020, Tokai erftcarbon v Commission (T‑636/18, not published, EU:T:2020:625), and of 16December 2020, Bawtry Carbon International v Commission (T‑637/18, not published, EU:T:2020:626).

12Paragraphs71, 68 and 71, respectively, of the second, third and fourth judgments under appeal.

13Paragraphs72, 69 and 72, respectively, of the second, third and fourth judgments under appeal.

14Paragraphs97, 94 and 97, respectively, of the second, third and fourth judgments under appeal.

15Paragraphs99, 96 and 99, respectively, of the second, third and fourth judgments under appeal.

16Paragraphs115, 112 and 115, respectively, of the second, third and fourth judgments under appeal.

17T‑689/13, not published, EU:T:2015:767.

18C‑691/15P, EU:C:2017:882.

19Paragraphs114, 115, 112 and 115, respectively, of the first, second, third and fourth judgments under appeal.

20Paragraphs71, 72, 69 and 72, respectively, of the first, second, third and fourth judgments under appeal.

21C‑691/15P, EU:C:2017:882, paragraph35.

22Paragraph20 of the appeals.

23See, in that regard, judgment of 10September 2019, HTTS v Council (C‑123/18P, EU:C:2019:694, paragraph32 and the case-law cited).

24See, in that regard, order of 12March 2020, EMB Consulting and Others v ECB (C‑571/19P, not published, EU:C:2020:208, paragraph29 and the case-law cited).

25Molinier, J., and Lotarski, J., Droit du contentieux de l’Union européenne, 4th ed., LGDJ Lextenso, Paris, 2012, p.229.

26Molinier, J., and Lotarski, J., op. cit., p.229.

27C‑352/98P, EU:C:2000:361.

28C‑46/93 and C‑48/93, EU:C:1996:79.

29Judgment of 4July 2000, Bergaderm and Goupil v Commission (C‑352/98P, EU:C:2000:361,paragraph41).

30Judgment of 30May 2017, Safa Nicu Sepahan v Council (C‑45/15P, EU:C:2017:402, paragraph29 and the case-law cited).

31Judgment of 25February 2021, Dalli v Commission (C‑615/19P, EU:C:2021:133, paragraph128).

32Molinier, J., and Lotarski, J., op. cit., p.229.

33Blumann, C., and Dubouis, L., Droit institutionnel de l’Union européenne, 6th ed., LexisNexis, Paris, 2016, pp.748 and 750. See, in particular, judgment of 19May 1992, Mulder and Others v Council and Commission (C‑104/89 and C‑37/90, EU:C:1992:217, paragraph15); of 6December 2001, Emesa Sugar v Council (T‑43/98, EU:T:2001:279, paragraph64); and of 9September 2015, Pérez Gutiérrez v Commission (T‑168/14, not published, EU:T:2015:607, paragraph31).

34Blumann, C., and Dubouis, L., op. cit., p.748. See, in that regard, judgments of 19April 2012, Artegodan v Commission (C‑221/10P, EU:C:2012:216, paragraph81); of 10September 2019, HTTS v Council (C‑123/18P, EU:C:2019:694, paragraph103); of 6October 2020, Bank Refah Kargaran v Council (C‑134/19P, EU:C:2020:793, paragraph62); and of 25February 2021, Dalli v Commission (C‑615/19P, EU:C:2021:133, paragraphs56 to 63).

35See, in that regard, judgment of 23March 2004, Ombudsman v Lamberts (C‑234/02P, EU:C:2004:174, paragraph49).

36Judgment of 10September 2019, HTTS v Council (C‑123/18P, EU:C:2019:694, paragraph33 and the case-law cited).

37Judgment of 4April 2017, Ombudsman v Staelen (C‑337/15P, EU:C:2017:256, paragraph37).

38Judgment of 10September 2019, HTTS v Council (C‑123/18P, EU:C:2019:694, paragraph43).

39As regards the consequences of the inclusion of the right to sound administration in the Charter, see Jacqué, J.-P., ‘Le droit à une bonne administration dans la charte des droits fondamentaux de l’Union européenne’, Revue française d’administration publique, vol.137-138, Nos1-2, 2011, pp.79 to 83.

40See, in that regard, judgments of 10September 2019, HTTS v Council (C‑123/18P, EU:C:2019:694, paragraph103), and of 6October 2020, Bank Refah Kargaran v Council (C‑134/19P, EU:C:2020:793, paragraphs61 and 62).

41Judgment of 29November 2016, T & L Sugars and Sidul Açúcares v Commission, (T‑279/11, not published, EU:T:2016:683, paragraph60 and the case-law cited).

42C‑269/90, EU:C:1991:438, paragraph14.

43C‑47/07P, EU:C:2008:726.

44Judgment of 16December 2008, Masdar (UK) v Commission (C‑47/07P, EU:C:2008:726, paragraph91).

45Judgment of 16December 2008, Masdar (UK) v Commission (C‑47/07P, EU:C:2008:726, paragraph92).

46Judgment of 16December 2008, Masdar (UK) v Commission (C‑47/07P, EU:C:2008:726, paragraph93).

47See judgments of 18September 1995, Nölle v Council and Commission (T‑167/94, EU:T:1995:169, paragraphs75 and 76); of 29April 2015, Staelen v Ombudsman (T‑217/11, EU:T:2015:238, paragraph88); and of 6June 2019, Dalli v Commission (T‑399/17, not published, EU:T:2019:384, paragraph59).

48See, in that regard, inter alia, judgments of 18September 1995, Nölle v Council and Commission (T‑167/94, EU:T:1995:169, paragraphs75 and 76), and of 15January 2015, Ziegler and Ziegler Relocation v Commission (T‑539/12 and T‑150/13, not published, EU:T:2015:15), in which the General Court nevertheless held that the duty of diligence (referred to in the first of those judgments as the ‘principle of care’) is protective in nature, which appears to be a clear reference to the idea of a rule conferring rights on individuals.

49See, in that regard, judgments of 16September 2013, ATC and Others v Commission (T‑333/10, EU:T:2013:451, paragraph93); of 29November 2016, T & L Sugars and Sidul Açúcares v Commission (T‑103/12, not published, EU:T:2016:682, paragraphs67 and 68); of 28February 2018, Vakakis kai Synergates v Commission (T‑292/15, EU:T:2018:103, paragraph85); and of 6June 2019, Dalli v Commission (T‑399/17, not published, EU:T:2019:384, paragraph59).

50Judgment of 23September 2015, Schroeder v Council and Commission (T‑205/14, EU:T:2015:673, paragraph46 and the case-law cited).

51Opinion of Advocate General Wahl in Ombudsman v Staelen (C‑337/15P, EU:C:2016:823, point47).

52Opinion of Advocate General Wahl in Ombudsman v Staelen (C‑337/15P, EU:C:2016:823, points1 and 2).

53Opinion of Advocate General Wahl in Ombudsman v Staelen (C‑337/15P, EU:C:2016:823, point46). As the General Court’s characterisation of the principle of diligence as ‘a rule of law intended to confer rights on individuals’ was not disputed on appeal in that case, the Court of Justice did not take a position on that issue in its judgment of 4April 2017, Ombudsman v Staelen (C‑337/15P, EU:C:2017:256).

54See the case-law cited in point37 of this Opinion.

55As in the case which gave rise to the judgment of 4April 2017, Ombudsman v Staelen (C‑337/15P, EU:C:2017:256, paragraph37).

56As in the case which gave rise to the judgment of 16December 2008, Masdar (UK) v Commission (C‑47/07P, EU:C:2008:726, paragraph93).

57Including those relating to measures laying down the detailed rules for application of an act, to management measures or to trade defence measures, according to the classification proposed by Durand, C.-F., ‘Chapitre V.Typologie des interventions’, in Auby, J.-B., and Dutheil de la Rochère, J. (dir.), Traité de droit administratif européen, 2nd ed., Bruylant, Brussels, 2014, p.163.

58Nevertheless, it is also necessary for there to be a causal link between the breach of the duty of diligence and the erroneous application of those provisions which has caused the damage.

59Judgment of 7October 2015, Bilbaína de Alquitranes and Others v Commission (T‑689/13, not published, EU:T:2015:767, paragraph30).

60See paragraphs51, 55, 58 and 59 of the action for damages in Case T‑639/18; paragraphs42, 46, 49 and 50 of the action for damages in cases T‑635/18 and T‑638/18, and paragraphs42, 46, 47 and 48 of the action for damages in Case T‑645/18.

61Paragraphs114, 115, 112 and 115, respectively, of the first, second, third and fourth judgments under appeal.

62Against that background, I consider that the first ground of appeal is ineffective. Even supposing that the General Court erred in law in rejecting the applicants’ arguments based on the duty of diligence, that argument was ultimately taken into account in its analysis, in so far as the analysis of point4.1.3.5.5 of AnnexI to Regulation No1272/2008 relates equally to the duty of diligence.