Administrative Precedent and the Application of the REACH Regulation - 10 Years of the ECHA Board of Appeal

Abstract

The REACH Regulation places many of the individual decisions adopted by the European Chemicals Agency (‘ECHA’) under the competence of its Board of Appeal. Decisions of the Board of Appeal can be challenged before the General Court and, if permission is granted, the judgment of the General Court can be appealed to the Court of Justice. The provisions in the REACH Regulation regarding the Board of Appeal and its powers are quite succinct. In essence, the Board of Appeal is an independent part of ECHA and may exercise any power that falls within ECHA’s competence. The Board of Appeal is composed of three members, two of whom are currently legally qualified, and one of whom is technically qualified. The REACH Regulation and the Rules of Procedure of the Board of Appeal ensure they are suitably qualified, independent and impartial. They are assisted by legal and scientific advisors. The legislative history of the REACH Regulation suggests that the Board of Appeal was initially expected to deal with a large number of relatively straightforward cases every year. The cases before the Board of Appeal have turned out to be a fraction of the expected number, but the impact, complexity and importance of the cases has turned out to be considerably greater. This opinion piece will examine four processes under the REACH Regulation in which the Board of Appeal has left a mark, and explore its main contributions and challenges over the last ten years.