Fieldfisher's EU Regulatory team wins appeal before ECHA's Board of Appeal against ECHA's decision on data and cost-sharing under the BPR

ECHA BoA annuls ECHA's decision granting permission to refer to the Appellant's studies.

On 3 November 2020, in Case A-009-2019, ECHA's Board of Appeal (BoA) annulled an ECHA decision granting Dow Benelux B.V. permission to refer to studies concerning the active substance tetrakis(hydroxymethyl)phosphonium sulphate(2:1) (THPS) owned by the Appellant, Solvay Solutions UK Limited.

Background

In October 2012, Dow Benelux B.V. requested a letter of access from the Appellant in order to rely on the studies for inclusion in the BPR Article 95 list of active substance suppliers. Over the next four years, the two parties took part in data and cost-sharing negotiations, during which they concluded an Every Effort and Secrecy Agreement. The agreement included a clause (7.5) providing that the parties would have to stop negotiating a Data Sharing Agreement if no chemical similarity could be found between their respective sources of THPS on the basis of assessment by a jointly-appointed technical consultant.

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