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Life in the Board of Appeal – a personal view
ECHA's Board of Appeal (BoA) has received 45 appeals so far. With this experience under its belt, the Board is now operating as intended and offering companies an important possibility for legal redress and an opportunity for ECHA to correct mistakes. ECHA Newsletter met with Andrew Fasey, the Technically Qualified Member of the Board of Appeal, and asked him for some thoughts on the appeals process to date.
How have you experienced the work of the Board of Appeal so far?
The detailed work as a member of the Board of Appeal in analysing cases, considering the evidence, and adopting decisions has been extremely interesting, challenging and rewarding. To date, almost every case brings something new, so the work never feels in any way routine.
We have just started to receive appeals against substance evaluation decisions and the first appeals against decisions under the Biocidal Products Regulation can be anticipated soon. The feedback we have received on the BoA decisions to date has been very positive, which is gratifying. We certainly believe that our decisions have helped to clarify the interpretation of parts of REACH and ECHA's implementation of it.
What advice would you like to give to those involved in the appeals process?
| Andrew Fasey, |
Technically Qualified Member of the Board of Appeal. Image: ECHA.
My personal concern is the clarity of submissions to the Board of Appeal. Many submissions have been comprehensive, clear and to the point but by no means all. In some submissions, it is not clear what the main arguments are or how the evidence provided supports them. Others are so voluminous that the main points, arguments and evidence can easily be lost amidst less important and relevant information. It is not for the Board of Appeal to tell the parties how to do their job but it is in everyone's interest that the case is made as clearly as possible.
The Board of Appeal makes decisions on complicated issues and cases. What are the challenges you face?
The first point to make is that, on the whole, we don't get the easy cases. The difficult cases come to the BoA and it is in large part why we are here. There is often little or nothing by the way of precedent to follow so we are frequently cutting a new path. The second point to make is that the parties to an appeal make their case using the arguments and evidence that support difficult task of coming to a decision by weighing up often very convincing but opposing positions. This is the hard job of the BoA but one which I certainly relish.
Are there any aspects of the decision-making process that could be misunderstood?
I think people are becoming more familiar with the appeals process and the content of our decisions but this will naturally take some time. I am aware of a small number of comments that some of our decisions are inconsistent. Of course, we work very hard to make sure that our decisions are consistent and we believe that they are. Readers of our decisions need to be aware, however, that the content of a decision reflects the specific arguments made and the evidence presented in support of the arguments by the parties concerned. As each case is different, so are our decisions.
Could you give an example of these cases?
I have heard it said that in evaluation appeals we should review the scientific aspects of a contested decision from scratch by repeating the assessment already conducted by the Agency and that this has been done in some cases but not in others. I think that it is important to clarify that we don't routinely repeat the full scientific assessment already undertaken by ECHA nor are we inconsistent in our approach.
The BoA reviews a case in light of the arguments made and the evidence presented to see if the decision is legally sound or not. We need to remember that ECHA decisions are often based on scientific judgement and different scientists may come to different conclusions. This doesn't in itself make one scientific opinion correct and another one wrong and this, in turn, doesn't mean that a decision is consequently right or wrong.
If appropriate to the case we will examine scientific information to see if there has been a legal error, for example, the application of the proportionality principle or the margin of discretion. If we do find that there has been a legal breach it might then be appropriate for the BoA to review the scientific aspects of a decision, or elements of it, from scratch in order to replace the ECHA decision. If we find a legal breach another option is to annul the decision and send it back to ECHA to redo the evaluation in which case we wouldn't need to do a scientific review from scratch.
It is difficult to imagine what would be gained by the BoA repeating the evaluation if there is no legal breach and we wouldn't be replacing the decision. The fact that I am part of the Board of Appeal, as the Technically Qualified Member, means that we can and do examine the scientific and technical aspects of appeals in considerable detail and this may be decisive in deciding whether there has been a legal breach in a case. However, the extent of that examination and what is included in a decision depends on the individual case and doesn't reflect any inconsistency of approach by the BoA in considering different appeals.
Board of Appeal
Interview by Päivi Jokiniemi
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1-4 and 8-11 June (tentative);
7-11 and 14-18 September (tentative)
Committee for Risk Assessment:
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