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...