Commission Regulation (EC) No 771/2008 of 1 August 2008 laying down the rules of organisation and procedure of the Board of Appeal of the European Chemicals Agency (Text with EEA relevance)

CHAPTER I

Organisation of the Board of Appeal

Section 1

The Board of Appeal

Article 1

Composition

At least one member shall be legally qualified and at least one member shall be technically qualified in accordance with Regulation (EC) No 1238/2007.

Article 1a

Amicable agreement

In the interest of the procedure the Chairman of the Board of Appeal may invite the parties to reach an amicable agreement. In that case the Chairman shall appoint a single member to facilitate the amicable agreement. The Chairman shall communicate the decision to appoint a single member to the parties.

If the parties reach an amicable agreement, the single member shall close the proceedings and a summary of the amicable agreement shall be published on the website of the Agency. In the absence of an amicable agreement within 2 months from the decision to allocate the case to a single member, the case shall be referred back to the Board of Appeal.

Article 1b

Withdrawal of an appeal

Where an appeal is withdrawn, the Chairman shall close the proceedings.

Article 2

Exclusion of members

Where the procedure under Article 90(7) of Regulation (EC) No 1907/2006 is applied, the member of the Board of Appeal concerned shall be invited to present his comments regarding the reasons for any objection raised under Article 90(6) of that Regulation before a decision is taken.

Pending a decision under Article 90(7) of that Regulation, the proceedings shall be suspended.

Article 3

Replacement of members

If a member is unable to ask for replacement, the Chairman may replace him on his own initiative.

The Chairman may reject a request for a replacement only by a reasoned decision.

If the Chairman is precluded from participating in the proceedings, he shall designate his alternate. If the Chairman is unable to do so, the longer serving of the other members deciding the appeal, or, where those other members have the same length of service on the Board of Appeal, the older member shall designate the alternate.

If a member is replaced after a hearing has been held, the hearing shall be held again unless the parties, the alternate and the other two members deciding the appeal agree otherwise.

If the Chairman is unable to sign the decision or to carry out other remaining procedural steps, the longer serving of the other members deciding the appeal, or, where those other members have the same length of service on the Board of Appeal, the older member shall carry out those steps on behalf of the Chairman.

Article 4

Rapporteur

The implementation of those measures may be entrusted to the rapporteur.

Section 2

The Registry

Article 5

Registry and Registrar

The Chairman shall have managerial and organisational powers to give directions to the Registrar on matters relating to the exercise of the functions of the Board of Appeal.

CHAPTER II

The procedure

Article 6

Notice of appeal

The notice of appeal shall contain:

(a) the name and address of the appellant;

(b) where the appellant has appointed a representative, the name and the business address of the representative;

(c) an address for service, if different from those under points (a) and (b);

(d) the reference of the decision which is being contested and the remedy sought by the appellant;

(e) the pleas in law and the arguments of fact and law relied on;

(f) where appropriate, the nature of any evidence offered and a statement explaining the facts for which the evidence is offered in support;

(g) where appropriate, an indication as to what information in the notice of appeal is to be regarded as confidential and why;

(h) an indication whether the appellant agrees that service is to be effected on him or, where appropriate, on his representative by telefax, e-mail or other technical means of communication.

During that period, time shall not run for the purposes of the time limit set out in Article 93(1) and (2) of Regulation (EC) No 1907/2006.

Where the Registrar prescribes a period in accordance with paragraph 3, he shall send such opinion after that period has expired if the irregularity has not been corrected.

When the appellant is not the addressee of the contested decision, the Registrar shall inform the latter of the lodgement of an appeal against such decision.

Without prejudice to the first subparagraph, the Chairman shall decide whether information indicated by an appellant pursuant to paragraph 1(g) is to be regarded as confidential and shall ensure that any information which is regarded as confidential is not published in the announcement. The practical details of publication shall be prescribed in accordance with the procedure set out in Article 27(3).

Article 7

Defence

The Chairman may, in exceptional circumstances, extend that time limit on a reasoned application by the Agency.

The defence shall contain:

(a) where the Agency has appointed a representative, the name and the business address of the representative;

(b) the pleas in law and the arguments of fact and law relied on;

(c) where appropriate, the nature of any evidence offered and a statement explaining the facts for which the evidence is offered in support;

(d) where appropriate, an indication as to what information in the defence is to be regarded as confidential and why;

(e) an indication whether the Agency agrees that service is to be effected on it or, where appropriate, on its representative, by telefax, by e-mail or other technical means of communication.

Article 8

Intervention

By derogation to the first paragraph, in cases relating to Title VI Chapter 2 of Regulation (EC) No 1907/2006, the Member State whose competent authority has carried out the substance evaluation may intervene without having to establish an interest in the result of that case.

The intervention shall not confer the same procedural rights as those conferred on the parties and shall be ancillary to the main proceedings. It shall become devoid of purpose if the case is removed from the register of the Board of Appeal as a result of a party's discontinuance or withdrawal from the proceedings or of an amicable agreement between the parties, or where the notice of appeal is declared inadmissible.

Interveners shall accept the case as they find it at the time of their intervention.

The application to intervene shall contain:

(a) the description of the case;

(b) the name of the parties;

(c) the name and address of the intervener;

(d) where the intervener has appointed a representative in accordance with Article 9, the name and the business address of the representative;

(e) an address for service, if different from those under points (c) and (d);

(f) the remedy sought, by one or more of the parties, in support of which the intervener is applying for leave to intervene;

(g) a statement of the circumstances establishing the right to intervene;

(h) an indication whether the intervener agrees that service is to be effected on him or, where appropriate, on his representative by telefax, e-mail or other technical means of communication.

The application to intervene shall be served on the parties in order to obtain any observations they may wish to make on that application before the Board of Appeal decides on it.

Where the Board of Appeal allows the intervention, the Chairman shall prescribe a period within which the intervener may submit a statement in intervention.

The statement in intervention shall contain:

(a) a statement of the remedy sought by the intervener in support of or opposing, in whole or in part, the remedy sought by one of the parties;

(b) the pleas in law and the arguments of fact and law relied on;

(c) where appropriate, the nature of any evidence offered in support;

(d) where appropriate, an indication as to what information in the application to intervene is to be regarded as confidential and why.

After the statement in intervention has been lodged, the Chairman may prescribe a time-limit within which the parties may reply to that statement.

Article 9

Representation

Where a party or intervener has appointed a representative, that representative shall provide an authority to act issued by the represented party or intervener.

Article 10

Lodging of procedural documents

The rules governing the use of means of technical communication, including the use of electronic signature, shall be adopted in accordance with the procedure set out in Article 27(3).

Article 11

Admissibility of the appeal

The grounds on which an appeal shall be ruled inadmissible shall include the following:

(a) the notice of appeal is not in compliance with the requirements set out in Article 6(1)(a) to (d) and (2) and Article 9 of this Regulation;

(b) the appellant has exceeded the time limit for submitting an appeal as set out in Article 92(2) of Regulation (EC) No 1907/2006;

(c) the appeal is not brought against a decision referred to in Article 91(1) of Regulation (EC) No 1907/2006 or Article 77(1) of Regulation (EU) No 528/2012;

(d) the appellant is neither an addressee of the decision contested by the appeal nor able to establish direct and individual concern according to Article 92(1) of Regulation (EC) No 1907/2006.

Article 12

Examination of appeals

The Board of Appeal shall set a reasonable period for submission of the observations.

Article 13

Hearings

The request shall be submitted within two weeks from notification to the party of the closure of the written part of the proceedings. This period may be extended by the Chairman.

The Chairman and the other members may put questions to the parties or their representatives.

The minutes shall be signed by the Chairman and the Registrar and shall constitute an official record.

Before the minutes are signed, witnesses or experts shall be given an opportunity to verify and confirm the content of the parts of minutes recording their evidence.

Article 14

Use of languages

If the appellant is the addressee of the decision against which the appeal is brought, the notice of appeal shall be lodged in the language of the decision or in one of the official languages of the Community appearing in the submission which gave rise to the decision, including in any information submitted pursuant to Article 10(a)(i) of Regulation (EC) No 1907/2006.

Any supporting documents in another language shall be accompanied by a translation into the language of the case.

In the case of lengthy documents, translations may be confined to extracts. However, the Board of Appeal may, of its own motion or at the request of a party, at any time require a more extensive or complete translation.

Article 15

Procedural measures

The purpose of procedural measures shall, in particular, be:

(a) to ensure the efficient conduct of the proceedings and to facilitate the taking of evidence;

(b) to determine the points on which the parties must present further arguments;

(c) to clarify the remedies sought by the parties, their pleas in law and arguments and the points at issue between them;

(d) to facilitate the amicable agreement between the parties.

Procedural measures may, in particular, consist of:

(a) putting questions to the parties;

(b) inviting the parties to make written or oral submissions on certain aspects of the proceedings;

(c) asking the parties or third parties for information;

(d) asking for documents relating to the case to be produced;

(e) summoning the parties or their representatives to meetings;

(f) drawing attention to matters which seem to be of special significance, or to the fact that certain questions appear no longer to be contentious;

(g) making observations that may help to keep the focus on essentials during the proceedings.

Article 16

Evidence

In proceedings before the Board of Appeal, the means of taking evidence may include:

(a) requests for information;

(b) the production of documents and items;

(c) hearing the parties or witnesses;

(d) opinions by experts.

Detailed rules on the taking of evidence shall be laid down in accordance with the procedure set out in Article 27(3).

The parties may object to an expert or witness on the grounds of lack of competence in relation to the appeal. Where such an objection is raised, the matter shall be resolved by the Board of Appeal.

Where the expert or witness fails to make such a declaration himself, the parties may bring the matter to the attention of the Board of Appeal.

Article 17

Costs relating to taking of evidence

Witnesses who are summoned by and who appear before the Board of Appeal shall also be entitled to appropriate compensation for loss of earnings.

Experts who are not members of the staff of the Agency shall be entitled to fees for their work.

Detailed rules shall be laid down, in accordance with the procedure set out in Article 27(3) and in agreement with the Management Board, regarding the following:

(a) who bears the costs with regard to the taking of evidence;

(b) the arrangements for any payments for reimbursement, compensation and fees to the witnesses and experts.

Article 17a

Costs

The parties shall bear their own costs.

Article 18

Competence

If the Board of Appeal remits the case to the competent body of the Agency in accordance with Article 93(3) of Regulation (EC) No 1907/2006, the latter shall be bound by the reasoning in the decision of the Board of Appeal save in so far as a change in circumstances occurs.

Article 19

Deliberations

The opinion of the rapporteur shall be heard first and, if the rapporteur is not the Chairman, the opinion of the Chairman last.

Article 20

Voting

If voting is necessary, votes shall be cast in the sequence provided for in the second subparagraph of Article 19(2). However, if the Chairman is also the rapporteur, he shall vote last.

Decisions shall be taken by a majority of votes.

Abstentions shall not be permitted.

Article 21

Decisions

The decision shall contain:

(a) a statement that the decision is delivered by the Board of Appeal;

(b) the date when the decision was taken;

(c) the names of the members of the Board of Appeal who have taken part in the proceedings;

(d) the names of the parties and the interveners to the appeal and their representatives in the proceedings;

(e) a statement of the remedy sought by the parties;

(f) a summary of the facts;

(g) the grounds on which the decision is based;

(h) the order of the Board of Appeal, including where necessary an award of costs for taking evidence and a decision on the refund of fees pursuant to Article 10(4) of Regulation (EC) No 340/2008 or Article 4(4) of Implementing Regulation (EU) No 564/2013.

The original of the decision shall be deposited at the Registry.

Failure to include that statement shall not render the decision invalid.

Article 22

Service of documents

The Registrar shall ensure that the decisions and communications of the Board of Appeal are served on the parties and on the interveners.

Service shall be effected by one of the following means:

Article 23

Time limits

If, in a period expressed in months or in years, the day on which it should expire does not occur in the last month, the period shall end with the expiry of the last day of that month.

Article 24

Extension and exceeding of time limit

Article 25

Stay of proceedings

At the request of a party or of its own motion, the Board of Appeal may, after hearing the parties, stay the proceedings.

Should any of the parties oppose the stay, that decision shall be taken by reasoned decision.

Article 26

Rectification

The Board of Appeal may, after hearing the parties, of its own motion or on application by a party made within one month after the decision has been served, rectify clerical mistakes, errors in calculation and obvious mistakes in the decision.

CHAPTER III

Final provisions

Article 27

Implementing measures

Article 28

Entry into force

This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.