BoA dismisses first appeal by downstream user

The European Chemicals Agency’s Board of Appeal (BoA) has dismissed an appeal against a substance evaluation decision on N,N- dicyclohexylbenzothiazole-2-sulphenamide (DCBS). The appeal, filed by French tyre producer Manufacture Française des Pneumatiques Michelin, was the first by a downstream user of a substance. The appellant uses DCBS, which is an accelerator of vulcanisation for certain types of rubber compounds, in the manufacture of internal components of tyres. Following an evaluation of the substance by the German member state competent authority, ECHA requested that the registrants of the substance submit an updated chemical safety report (CSR) containing further information on environmental exposure. The appellant said the decision should be annulled on the grounds that ECHA failed to ensure that the requested information for the use of the substance in tyres was obtained from the relevant downstream users. It also argued that the agency should have conducted a compliance check prior to the substance evaluation to request the information required. However, the BoA has dismissed the appeal on the grounds that the appellant does not have the “legal standing” to challenge ECHA’s decision as it is not an addressee of the information request, and has not prepared a CSR, or provided the agency with a downstream user report. Therefore, it says, there was no obligation to involve the appellant in the substance evaluation process or the decision-making procedure. The Board of Appeal also found that it is not the responsibility of the agency, or an evaluating member state competent authority, to seek out and identify downstream users that may be interested in a substance evaluation decision. “The provisions of the REACH Regulation envisage communication in supply chains on the risks of substances and place this responsibility both on registrants and downstream users,” it said. Direct concern The appellant also claimed that it is “directly concerned” by ECHA’s Decision because, given the need to generate new information, it may result in various statutory or contractual obligations as well as economic consequences such as a price increase. However, the BoA found that this is not sufficient to render the appellant directly concerned as the contested Decision does not sufficiently affect its “legal situation”. “They constitute economic consequences and consequently affect the appellant’s factual situation,” it states. In a statement to Chemical Watch, legal representatives for the appellant, Jean-Philippe Montfort and Thomas Delille of law firm Mayer Brown, say: “We regret that the Board of Appeal chose to take a restrictive approach on the right of downstream users to participate in and to appeal substance evaluation decisions affecting them. However, we observe that the Board does not close the door for an appeal by downstream users in certain conditions.” But they say that the adoption of such a restrictive approach has been because of the practical difficulty for authorities to identify all affected downstream users. “We feel there is still room for an interpretation of the REACH text that would be more inclusive towards downstream users,” they add. The lawyers – who state that their comments are not on behalf of the appellant – also say that the BoA’s ruling, that ECHA’s Decision was not of direct concern to the appellant, “favoured a strict legal interpretation, against the weight of evidence”. “This decision should not discourage downstream users from making sure their views are heard with respect to substances listed on CoRAP. “The merit of this case was to raise the interest of downstream users to access the process. Despite the negative ruling in this case, there remains options for downstream users to be identified as those concerned by authorities and therefore to be recognised as direct actors of the substance evaluation process.” Further information is available at: BoA dismisses first appeal by downstream user

Chemical Watch, 1 June 2017 ;http://chemicalwatch.com ;