[DRAFT] A Chemical (Im)Balance: Judicial Review and Technical Expertise of the ECHA BOA

By Thomas, Gabriel, Sophie and Luca

In the ever-expanding world of EU agencies, one stands out for its critical role in protecting public health and the environment: the European Chemicals Agency (ECHA). Tasked with enforcing the REACH Regulation – the EU’s cornerstone framework for regulating chemicals – ECHA operates with deep scientific and technical expertise. At the heart of its internal accountability structure sits the ECHA Board of Appeal (ECHA BoA), a quasi-judicial body uniquely designed to review ECHA decisions with both legal and scientific rigor. Yet, a structural tension emerges when ECHA BoA decisions, often rooted in technical reasoning, are subsequently reviewed by the General Court of the European Union (General Court) and (ultimately) the European Court of Justice (Court of Justice). These courts lack comparable scientific expertise and are confined to legal analysis. In this blogpost, we explore an alternative approach for the review of ECHA decisions, inspired by the review model adopted in Australia.

Balancing science and law: the role of the ECHA BoA

ECHA is an EU agency that serves as a central body for ensuring the safe use of chemicals in the EU through expert-driven regulation and scientific oversight. In doing its task, ECHA issues decisions regarding the registration and classification of chemical substances. The ECHA BoA plays a role in reviewing ECHA’s decisions. In this regard, it has the power to annul ECHA decisions, either partially or fully, and it can send the case back to ECHA or make a final decision itself.

Figure 1: Composition of the ECHA BoA, from left to right: legally qualified member, chairperson with legal knowledge, member with scientific/technical expertise (source: Canva)

The ECHA BoA functions as a specialized appeals body, ensuring that appeals are assessed not just from a legal perspective but also with scientific and technical expertise. The composition of the ECHA BoA reflects this function. It consists of three members: a chairperson, who must be legally qualified, and two additional members – one of whom must be legally qualified, while the other must possess thorough scientific/technical expertise and knowledge. This ensures that cases before the ECHA BoA are reviewed from both a legal and technical perspective, distinguishing the ECHA BoA’s approach from the review by the General Court.

The ECHA (BoA) under the General Court’s microscope

A central tension underpinning the ECHA decision enforcement framework is the divide between the ECHA BoA’s mandate to issue appeal decisions grounded in scientific/technical expertise, and the role of the General Court (and Court of Justice) in reviewing those decisions through a legal lens. While the ECHA BoA is institutionally equipped to assess scientific matters, the EU courts are not. The intensity of review of the ECHA BoA has been the main focus of two judgments by the General Court; BASF Grenzach v ECHA and Germany v ECHA. Via these two rulings, the General Court gave precedence to the view that the ECHA BoA has the power to check scientific/technical matters of the case and does not just check for manifest errors. However, the recent case 3V Sigma signals a shift towards a more intensive judicial scrutiny of the scientific/technical matters. This creates a risk of judicial overreach, where generalist courts, lacking scientific competence, may substitute their own reasoning for that of the expert body. It could thereby undermine the ECHA BoA’s effectiveness as a specialized enforcement mechanism under REACH.

Figure 2: ECHA’s decision appeal process within the REACH Regulation framework (source: Canva)

The Australian way: let the experts be experts

The recent 3V Sigma case made clear that when courts go too far into the scientific territory, the delicate balance of expertise and legality under REACH starts to erode. At the heart of the issue lies a fundamental question – who should make the final call on complex scientific matters? We argue that the answer is that this should not be done by generalist judges, but rather by technically skilled bodies, namely the ECHA BoA.

As the intensity of review increases, the balance between legal oversight and scientific authority becomes harder to maintain – suggesting that we may need to look elsewhere for a model that preserves this balance without undermining judicial accountability, like Australia for instance.

In the Australian system, a well-established practice ensures that specialist tribunals retain control over technical content, even when their decisions are appealed. When a generalist court identifies an error – whether legal or procedural – it does not substitute its own judgment on the scientific facts. Instead, it remands the case back to the expert body, accompanied by clear legal guidance. This allows the specialist to revisit the case and address the issue while preserving its authority over the technical dimensions.

This approach is simple and basic. It respects the tribunal’s knowledge-based function, prevents courts from stepping outside their depth, and avoids outcomes that may be procedurally sound but scientifically flawed. It does not diminish judicial oversight, but rather refines its focus to what courts do best – ensuring fairness, consistency, and legal clarity.

From Down Under to the EU

Adopting this model within the EU legal context, whether formally or through evolving judicial practice, could help draw the boundary lines between the ECHA BoA and the General Court (and eventually, Court of Justice). The ECHA BoA should not be meant to be second-guessed on science by generalist judges. Instead, it should be determined that the ECHA BoA is to integrate scientific expertise with legal reasoning in a way no court can fully replicate. By promoting remand over replacement, the General Court would strengthen not only the ECHA BoA’s authority, but also the credibility of REACH enforcement as a whole.

The recommendation proposed herein could also operate within the current EU legal framework. It means no amendments to the REACH Regulation or the related EU laws are required, taking into consideration the amount of time of the EU legislative process. It is an approach that respects the division of roles and/or expertise, where the ECHA BoA will remain the expert appellate body, and the General Court will retain ultimate authority on questions of law and the validity of the ECHA BoA’s decisions.