4 Nov 2020
Fieldfisher's Peter Sellar and Elliott Kenton consider whether the UK's equivalent of ECHA's Board of Appeal will match up to its European counterpart
Fieldfisher's Peter Sellar and Elliott Kenton consider whether the UK's equivalent of ECHA's Board of Appeal will match up to its European counterpart.
On 1 January 2021, the UK's new REACH regime will enter into law. Alongside new re-registration and transitioning requirements will be a new governance structure for authorising chemical products in the UK.
The UK's Health & Safety Executive (HSE) will largely assume the role of the European Chemicals Agency (ECHA) and the ECHA Board of Appeal (ECHA BoA) will be replaced by a domestic General Regulatory Chamber (UK GRC).
The ECHA BoA is competent to issue decisions on, for example, the rejection by ECHA of registration dossiers, decisions to impose testing requirements and decisions taken by ECHA on data sharing disputes (under REACH and the Biocidal Products Regulation (BPR)).
The UK has adopted the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, which essentially mirror REACH. Adaptations are, of course, necessary, including replacing the ECHA BoA with another appeal tribunal/court in the UK.
For this purpose, the UK opted for "First-Tier Tribunals" and, in particular, the UK GRC, which will remain competent for everything the ECHA BoA currently does.
Below is a comparison of key aspects of the two bodies.
|
|
ECHA BoA |
UK GRC |
Comments |
|
Composition |
3 members: - 1 chairperson - 1 legal adviser - 1 technical adviser |
2 or 3 members: - 1 judge - "One or two other members where each other member has substantial experience of environmental matters" – see GRC amended practice statement 9 March 2015. |
While experience of environmental matters is positive, the key requirement is core experience of REACH and the BPR. |
|
Experience/expertise |
Dealt with hundreds of cases. Accumulated extensive knowledge of REACH and the BPR. |
No direct experience on REACH/BPR decisions. |
It is unclear whether the GRC will review all the decisions taken by the ECHA BoA to ensure consistency of reasoning, or develop its own approach. |
|
Costs |
- Fee ranging between €1,794 and €7,175; refunded if successful. - ECHA BoA not competent to award costs against losing party. |
- Not clear but costs will likely be significant because of the need for specialist lawyers and other assistance given the UK GRC's lack of expertise. - Discretion to allocate the costs of the procedure. |
Appealing before the ECHA BoA is relatively affordable. The fact that costs can be awarded against appellants in the UK GRC if they lose will be a dissuasive factor in bringing an appeal. |
|
Time |
The average duration of an appeal is close to 15 months – see Annual report from the Chairman of the Board of Appeal 50th Meeting of the Management Board 20-21 June 2018 (page 5). |
Although the time between lodging an appeal and a final hearing varies, the duration of the UK GRC appeals may exceed 15 months. |
Due to the varying appeals being heard by the UK GRC, it is likely that appeals on REACH and the BPR will exceed the current average duration of ECHA BoA hearings. |
|
Procedure |
Rules are simple. |
Rules are complex. |
Litigating at EU level tends to benefit from relative procedural simplicity in comparison with Member State/UK tribunal/court proceedings. |
|
Nature |
While adversarial in that the appellant is disputing a decision of ECHA that ECHA defends, the oral hearing is more inquisitorial, meaning Members are well-prepared to ask searching questions. |
Appearances before the UK GRC involve the adversarial nature of typical UK-style litigation. In England, that may require appearance of counsel (barristers), which will increase costs. The UK GRC may not be as prepared as the ECHA BoA, depending on submissions from the parties. |
The adversarial nature of domestic litigation places more power in the hands of lawyers than is currently the case before the ECHA BoA. |
Can what can we expect from the UK GRC?
The ECHA BoA does not hesitate to deal with difficult technical issues and ensures a thorough and searching examination of the parties at the oral hearing and there have been very few successful appeals against Board decisions.
While it is not yet known how competent the UK GRC will be at determining REACH/BPR disputes, the transition from a specialist chemical agency to a non-specialist tribunal that determines appeals in a breadth of areas, including food, gambling and animal welfare, brings into question how effective adjudications of appeals will be.
Rather than saddling the UK GRC with an even larger caseload, it may have been more prudent for an independent HSE panel to hear appeals.
The HSE is well placed in that it is the UK regulator for REACH/BPR specific issues, is vastly experienced in dealing with chemical regulation and already has independent appeal processes.
As things stand, appellants seeking to challenge decisions in the UK should prepare for a longer, more convoluted and costly process.
This article was written by Peter Sellar, competition, regulatory and trade partner at Fieldfisher Brussels and Elliott Kenton, senior dispute resolution associate, at European law firlm Fieldfisher LLP in London.
Subscribe for unlimited access. A subscription to European Rubber Journal includes:
Already a subscriber? Log in here
