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

41.The appellants’ actions for damages and appeals concern the administration’s obligation to take all relevant factors and circumstances into account in the exercise of its powers, that obligation being ‘automatically’ linked, they submit, to the duty of diligence, which is inherent in the principle of sound administration.

42.That principle (or right) is enshrined in Article41 of the Charter of Fundamental Rights of the European Union (‘the Charter’). If, in determining whether a rule is to be regarded as being intended to confer rights on individuals, the fact that it served to protect interests of individuals specifically protected by EU law were a decisive consideration, the status of that rule as a right fundamental to the Charter would end any debate as to its nature. That, however, is not the case.(39)

43.Leaving aside the classic question of categorising a provision of the Charter as ‘enshrining a right or a principle’, it is clear from the case-law of the Court that the infringement of certain rights, such as that corresponding to the administration’s obligation to give reasons for its decisions, which is expressly referred to in Article41(2)(c) of the Charter, does not always give rise to non-contractual liability on the part of the European Union.(40) Thus, the Court itself does not appear to regard its inclusion in the Charter as decisive of whether the right to sound administration is to be classified as a right intended to confer rights on individuals. It is not the case that every obligation of the administration automatically gives rise to a subjective right on the part of individuals.

44.In that regard, according to the General Court, the right to sound administration does not, in itself, confer rights upon individuals, except where it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions.(41)

45.Those specific rights could include the right corresponding to the administration’s duty of diligence, understood as a duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, as established by the Court, inter alia, in the judgment of 21November 1991, Technische Universität München.(42)However, the Court did not hold in that judgment that a breach of that obligation could trigger the non-contractual liability of the European Union.

46.In that regard, the Court of Justice ruled, in its judgment of 16December 2008, Masdar (UK) v Commission,(43) that the EU administration may be non‑contractually liable for wrongful conduct where it fails to act with all necessary care and, as a result, causes harm.(44) The Court held that that duty of care is inherent in the principle of sound administration, applies generally to the actions of the EU administration in its relations with the public,(45) and entails that the EU administration must act with care and caution.(46)

47.However, the considerations set out by the Court in that judgment related to actions which had been taken by the Commission in a specific context. The applicant’s claim for damages had been made against the background of contractual relationships between, on the one hand, the Commission and its contractual partner and, on the other hand, that contractual partner and the applicant, as its subcontractor. The claim was based, inter alia, on a contention that the Commission, in exercising its power to suspend the payment of a contract in the case of irregularities committed by the co‑contractor, ought to have exercised care so as to ensure that it did not harm the subcontractor. Besides the fact that it did not accept the applicant’s submissions as to the content of the duty of diligence in the circumstances of that case, I would observe that, in that judgment, the Court did not characterise the duty of diligence as a ‘rule of law intended to confer rights on individuals’.

48.It appears that that characterisation has been more frequently accepted in the case-law of the General Court.(47) While, in certain judgments, it is difficult to determine whether the duty of diligence is regarded as the rule of law breached or as the test of the seriousness of a breach of another rule,(48) the fact remains that in other judgments the General Court has expressly stated that the duty of diligence, or even the principle of sound administration, should be characterised as ‘a rule of law intended to confer rights on individuals’.(49)

49.Nevertheless, it is difficult to speak of a clear and unequivocal characterisation of that duty. The General Court itself accepts that the duty to take due care may be taken into account not as a rule conferring rights on individuals, but as one of the criteria for regarding the irregularity or error committed by an institution as constituting a sufficiently serious breach of EU law, thus serving as the ‘qualifying factor’ for the breach of another principle or another rule of law of the European Union.(50)

50.In any event, it is far from obvious that the duty of diligence is to be characterised as a ‘rule of law intended to confer rights on individuals’. An overly flexible approach to such characterisation was expressly criticised by Advocate General Wahl in his Opinion in Ombudsman v Staelen.(51)The Advocate General indicated that he had doubts as to whether a breach of the right to sound administration gave rise to damages(52) and stated that it is ‘a matter of circumstances whether, in a given case, disregard for that principle [of diligence] involves the breach of a right conferred upon an individual’.(53)

51.I share that view.

52.First, I would reiterate(54) that the first element of the first condition is intended to limit such liability to situations where the unlawful conduct of EU institutions, bodies, offices and agencies has caused damage to an individual by prejudicing his or her interests specifically protected by EU law. I do not see why those specific interests cannot include an individual’s right to have his or her affairs handled by an administration taking all relevant facts of the case into account. That is a matter of the individual’s right not to have their situation determined by the administration in an arbitrary or abstract fashion.

53.Second, it is impossible in my view to analyse the administration’s duty of diligence in the abstract, without considering the concrete situation. The actions taken by the EU administration are diverse in nature. As regards the administration’s obligation to take all relevant circumstances into account, this differs depending on whether the context is that of an investigation,(55) the performance of contractual obligations,(56) the adoption of delegated and implementing acts,(57) or another administrative procedure leading to the determination of the legal situation of an individual. While, in all of those situations, it can be said that the administration has an obligation to take all relevant circumstances into account, the specific content of that obligation is different in each one, being determined by the provisions applicable to the particular case.

54.Thus the duty of diligence, being a general obligation of the EU administration, is one of variable contours. In practice, in each type of administrative intervention, the taking into consideration of all the relevant circumstances should be preceded by an analysis of the scope of the administration’s powers and of its discretion, as determined by the provisions applicable to the particular case.

55.That is true, in particular, as regards the administration’s adoption of delegated or implementing acts of general scope, or of individual acts In that situation, the scope of the administration’s duty of diligence is determined by the provisions applied in the particular case, which determine the scope of the powers of the administration and its discretion. On the basis of those provisions, the administration identifies all of the relevant circumstances to be taken into account. It is impossible to analyse the administration’s duty of diligence without taking account of the concrete situation governed by those provisions. It is only in conjunction with them that the duty of diligence can constitute a rule of law conferring rights on individuals, breach of which may give rise to non-contractual liability on the part of the European Union.(58)

3.The duty of diligence in the present case

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.