Biofa GmbH vs. European Chemicals Agency: Board of Appeal Decision

Key Entities

• Appellant: Biofa GmbH, Germany, represented by Christian Stallberg and Julia Eickbusch from NOVACOS Rechtsanwälte Partnerschaft mbH.
• Intervener: Armosa Tech SA, Belgium, represented by Koen van Maldegem, Maud Grunchard, and Manon Ombredane from Fieldfisher (Belgium) LLP.
• Contested Decision: DSH-63-3-D-0028-2022, adopted by ECHA on 22 October 2022.

Proceedings

The dispute began when Armosa Tech SA sought to share data and costs to be included in the Article 95 list of authorized suppliers for the substance. Despite prolonged negotiations from March 2021 to August 2022, including a face-to-face meeting on 14 March 2022, no agreement was reached. Consequently, the ECHA granted Armosa Tech SA permission to refer to the necessary data, subject to cost-sharing with Biofa GmbH.

Appellant's Claims

Biofa GmbH appealed the ECHA's decision, arguing several points:

1. Breach of Property Rights: Biofa claimed that granting permission to refer to their data violated their property rights as protected by Article 17 of the EU Charter of Fundamental Rights.
2. Good Faith Principle: The appellant contended that the ECHA did not properly assess the negotiations, accusing Armosa Tech SA of acting in bad faith.
3. Assessment Errors: Biofa GmbH alleged factual errors in the ECHA's decision, including an incorrect interpretation of the negotiations and the conditions for data-sharing.
4. Contractual Freedom: They argued that the decision undermined their freedom to contract by imposing conditions not agreed upon.

Board of Appeal's Findings

The Board of Appeal, chaired by Antoine Buchet, assessed the claims and found:

• Right to Property: The ECHA’s decision was within the legal framework, allowing interference with property rights under specific conditions, which were met in this case.
• Good Faith and Assessment: There was no evidence that the negotiations were conducted in bad faith by Armosa Tech SA. The ECHA’s assessment was balanced and took into account the actions of both parties.
• Errors in Assessment: The claim that an agreement on data-sharing and cost was conditional on prior compensation for alleged damages was not substantiated by the presented evidence.

Decision

The Board of Appeal dismissed the appeal, upholding the ECHA’s decision to allow Armosa Tech SA to refer to Biofa GmbH's data, provided they shared the costs. The appeal fee was not refunded.

The decision underscores the stringent requirements and legal processes involved in data-sharing under the BPR. The Board of Appeal's ruling highlights the necessity for clear agreements and good faith negotiations in such regulatory frameworks. This case serves as a precedent for future disputes in the biocidal products industry.