Mercedes Ortuño reflects on her departure in April, 10 years as Echa's Board of Appeal chair and the 'battle' for functional independence
When I started at Echa’s Board of Appeal, nearly ten years ago, REACH was still a terra incognita for the chemicals industry and EU citizens. The BoA was not high in people’s consciousness and not considered the important body that it is now.
Before assuming my post in 2009, I met the former commissioners for environment and enterprise, Stavros Dimas and and Günter Verheugen, in Brussels; they asked me if there was enough 'meat' to sustain an Echa board of appeal? I suggested that, as REACH was a most complex and lengthy piece of EU legislation, it would certainly create many problems of interpretation, disputes and litigation.
After ten years at the BoA, I have to say that I was right. REACH is a complex regulation requiring careful implementation and has many grey areas, open to different interpretations. The novel and difficult situations that stakeholders are faced with to comply with REACH and the problems Echa found when implementing the various processes it is responsible for, are numerous. The BoA has ensured that there is a remedy for specific problems and provided a coherent, legally and scientifically sound interpretation of the most important aspects of the law.
The BoA evolution
After presiding over more than 100 appeal proceedings in my role as chair, and now close to the end of my term of office, it is time to stop, look back and reflect on the part I have played in the BoA’s evolution; and maybe enlighten the following chair on how to improve it in the future.
Setting up the BoA from scratch was not an easy task. There are no bodies in the EU administration that are the same or even similar. There are boards of appeal in other EU agencies, but wide differences in the subject matter under adjudication, underlying administrative processes, and their composition. This makes them all too different from the Echa BoA to serve as practical benchmarks.
For example, the EU Intellectual Property Office (EUIPO) has five boards of appeal to decide on trademark-related disputes. Their legal framework is very different from ours, and they do not deal with scientific assessments or human health or the breadth of legal issues that Echa's BoA considers.
As regards composition, the Echa BoA brings together three permanent (full time) – one scientific and two legal – members with ad hoc alternate members, called upon for individual cases when needed. Other BoAs, by contrast, are composed only of permanent members (EUIPO) or only of ad hoc members appointed when necessary for a case. (All other EU bodies function with non-full time members.)
A pivotal role
For the chair, the different status of the BoA members, bringing together permanent members (Echa staff) with alternates (who are external practitioners and professionals with other activities as a main occupation), poses a challenge.
‘The chair has a pivotal role in keeping the alternate members updated on appeals and ensuring that they are well prepared when they are called upon to work on a case, if necessary, at any moment’
The chair has a pivotal role in keeping the alternate members updated on appeals and ensuring that they are well prepared when they are called upon to work on a case, which can be at any moment. These members have been crucial in ensuring that the Echa BoA can operate when permanent members are unavailable due to sickness, long absences or conflicts of interest.
A second, important challenge for the chair was to achieve the functional independence of the BoA within a larger organisation. I am referring specifically to the ‘battle’ to manage its own administrative support unit, the Registry and small team of lawyers assisting with the appeals.
From 2009 until 2016, this administrative unit was directly dependent on the Echa executive director. In 2016, the management of the Registry was transferred to the BoA chair, by means of a Commission implementing Regulation reviewing the BoA’s rules of procedure. It should be mentioned in this respect that Echa's management board, and in particular the BoA working group, provided unstinting and effective support with this demand for genuine functional autonomy from Echa’s secretariat.
What looks obvious today, and is reflected in the reviewed rules of procedure, was the result of many discussions and endless negotiations to correct a legal anomaly, imposed de facto by the executive director in 2009, which finally the European Commission decided to fix.
Unlike other parts of Echa, the BoA attained maturity and cruising speed on decision making without any significant growth in staff or budget.
This is closely linked with the BoA chair's most important challenge: how to motivate a small number of selected lawyers and legal assistants to maintain high quality work, which is constantly exposed to public opinion and has a big impact on Echa processes. While this is a daunting challenge, the excellent team under the direction of the experienced registrar made this rewarding and interesting work for me, the chair. Listening to and considering all legal opinions as well as holding open discussions on how to improve our working methods, has turned out to be the best medicine for combating the stress and frustration that sometimes we all suffered when dealing with many cases at once.
Among more than 100 decisions, the BoA has had the opportunity to check the pulse of REACH actors, remedy the problems detected and improve the health of the system by appeal decisions that reflect high legal and scientific standards.
It has provided clarity on how Echa should manage the different REACH processes under its competence, always bearing in mind the aims of this piece of legislation. For example, the BoA insisted that the dossier completeness check is not a mere box-ticking exercise; it has to be a process which serves, as a first step, the purpose of gathering meaningful information on a substance.
BoA decisions also provided consistent findings on how Echa should request information on a substance, under both the compliance check and the substance evaluation procedures, respecting the legal principles of proportionality and good administration. They have also set clear guidelines for Echa that the registrant has to be properly heard before any decision that imposes measures is adopted.
When dealing with these and other difficult issues, it has been a rewarding experience to see how different backgrounds and legal traditions interact and complement each other. For my own part, the principles of Spanish administrative law – which are similar to, but not always identical to those of the other member states – have been a guiding light in many a dark place.
‘Nobody questions the legal and scientific authority of the BoA when it decides an appeal, even if the result is unwelcome'
Today, nobody questions whether there is enough work to warrant a board of appeal. Nobody questions its legal and scientific authority when it decides an appeal, even if the result is unwelcome. And nobody doubts that it is an effective method of legal redress, normally quicker and cheaper than taking a judicial action before the EU courts.
It has been my privilege to chair the BoA in the first ten years of its life. It has been my privilege to work with some of the most talented and dedicated people that you will find anywhere; many of whom have worked so far beyond what can reasonably be expected that no words can do them justice. I am extremely proud of the body of work that is of the very highest quality and which has, I believe, made a massive contribution to the interpretation of REACH and its effective implementation by Echa.
Other arenas are calling me, and other people can and will carry the torch in the appeals world. I will support them as best I can. And when it seems compelling, I will make my voice heard.