Legal Remedies Under the EC's New Chemical Legislation REACH: Testing a New Model of European Governance

53 Pages Posted: 26 Jan 2012 Last revised: 24 Oct 2012

See all articles by Marco Bronckers

Marco Bronckers

Leiden University - Leiden Law School

Yves van Gerven

affiliation not provided to SSRN

Date Written: January 26, 2012

Abstract

ECHA’s Board of Appeal projected a “first wave” of appeals by registering companies in 2010, resulting from Substance Information Exchange Forum (SIEF) preparatory work before the first registration deadline of phase-in substances and more generally to matters arising from registration modalities. The EU’s General Court (formerly known as the CFI) reportedly also has been bracing itself for a string of REACH-related appeals. This may suggest that companies have ample opportunities to challenge decisions taken under REACH that adversely affect them. However, a recent and comprehensive study on legal remedies under REACH paints a more troubling picture.

Different fora are to be distinguished before which private parties might exercise legal remedies against decisions taken by the public actors under REACH: ECHA, and notably its Board of Appeal; the Commission; the Community courts (General Court/ECJ); and national courts. The choice of forum depends on the public actor whose REACH-related measure is being challenged, as well as on the nature of the disputed measure. The study offers companies a detailed roadmap to these remedies.

The study concludes that the legal remedies under REACH are deficient in a number of respects: not all decisions of ECHA can be challenged through internal administrative appeals, and no such appeals are envisaged against any measure under REACH taken by the Commission. Moreover, it is unclear whether ECHA has the power to take certain necessary decisions to begin with. This is problematic, for instance, in sensitive situations concerning access to information generated by companies, which they would normally prefer to keep confidential.

Part of the explanation for these deficiencies lies in the reluctance at Member State and Commission levels to endow ECHA with sufficient decision-making authority; Another problem is that the Commission is less suited to take the many REACH-decisions it has reserved to itself. Finally, not all REACH-decisions lend themselves to the cumbersome appeals process before the European Courts. The study offers suggestions for improvement.

Keywords: REACH, EU chemicals legislation, EU governance, judicial remedies in the EU, EU court litigation, Aarhus Convention, TRIPS, European Chemicals Agency (ECHA)

JEL Classification: L50, L65

Suggested Citation

Bronckers, Marco and van Gerven, Yves, Legal Remedies Under the EC's New Chemical Legislation REACH: Testing a New Model of European Governance (January 26, 2012). Common Market Law Review, Vol. 46, No. 6, pp, 1823-1871, 2009, Available at SSRN: https://ssrn.com/abstract=1992342

Marco Bronckers (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

Yves Van Gerven

affiliation not provided to SSRN ( email )

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