A Fieldfisher team led by partner Claudio Mereu has advised Solutia, a materials and speciality chemicals manufacturer, on its successful appeal against a statement of non-compliance (SONC) from the European Chemicals Agency (ECHA).
Solutia had provided an update on its REACH dossier in response to a request for further information from the ECHA, but the agency subsequently issued the SONC to the Belgian authorities indicating that the registration was non-compliant.
Solutia appealed, and on 27 July the ECHA Board of Appeal annulled the statement of non-compliance, ruling that the ECHA had in practice adopted a fresh decision on the basis of substantial new information provided by the appellant, without following the procedure and applying the procedural guarantees provided by Articles 50 and 51 of REACH.
Specifically, the Board of Appeal concluded that:
• Where it involves an assessment of substantial new information, a SONC is not merely a non-binding communication to the Member States enforcement authorities (as claimed by ECHA) but a formal, follow-up decision of ECHA within the meaning of Article 42(1) of REACH and in conjunction with Articles 41 and 51 of the Regulation. This legal interpretation is a crucial one, since REACH has not been clear on the legal status of a SONC up until now.
• As a formal decision, a SONC is challengeable on condition that, it is not a simple confirmation of an earlier decision adopted by the national authorities or by ECHA, but it rather: (i) provides for a new assessment of substantial new information; and (ii) has an effect on the legal situation of the applicant company.
• Finally, Article 51 of REACH will be applicable to a SONC. This means that, from now on ECHA will have to follow the ordinary procedure for adoption of decisions under dossier evaluation in accordance with Article 51, whereby a company will be given the opportunity to comment, to be heard and be fully involved in the process, which was indeed the main procedural point in the case of Solutia.
The conclusions of the ECHA Board of Appeal will have far-reaching implications for the way in which the agency handles the decision making process under REACH. Claudio Mereu, the partner who led the Fieldfisher team, said: "This case sets an important precedent for the European chemical industry, and demonstrates the high level of expertise within the Fieldfisher team to tackle complex legal issues, and indeed our general commitment to the REACH practice."
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