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Practical advice for data sharing negotiations

Data sharing is not designed to generate profit for the data owner, but to share the actual costs between all co-registrants (you, other potential registrants and existing registrants) who need that data.

You and your co-registrants operate in the same market. You should critically assess all the information you receive while interacting with co-registrants who have already participated in sharing the cost of data.

Co-registrants are obligated to make every effort to reach an agreement on how to share data and its cost in a fair, transparent and non-discriminatory way. This is the key principle for data sharing negotiations.

Making every effort to find an agreement on sharing the cost means:

  • asking questions to ensure that the price has been decided in a fair, transparent and non-discriminatory way
  • requesting clarification when there are misunderstandings
  • challenging any items that are disagreed with valid arguments.

Practical advice for data sharing negotiations

Negotiation advice

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Make every effort to come to an agreement. These Dos and Don'ts can help you make your data sharing negotiations successful.

Dos and Don'ts

Know your needs

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Compare the information requirements that apply to the tonnage band of the substance you manufacture or import (1-10 or 10-100 tonnes a year) and type of registration (standard or intermediate) with data that you already have.

Information requirements

Practical advice

 

1. Ask for the price of data you need

The first step is to ask your co-registrant for the price of the data you need for the tonnage band you plan to register (considering the type of registration). You can negotiate access to individual studies or to all data that was already submitted.

Normally, the price consists of costs related to tests (study costs) and costs related to administrative work (non-study costs). You will typically be able to purchase a Letter of Access (LoA), which gives you permission to refer to data you need for your registration. This could help you avoid lengthy and detailed negotiations, or make it easier for you to register by making use of documents that your co-registrants have already used and prepared. If you agree with the cost proposal you can proceed with your registration.

If you have questions or disagree with how the price was decided, you have the right to ask for explanations and justifications.

 

2. Make sure you only pay for the data you need

You only have to pay for data that you actually need for your registration.

You don't need to pay for:

  • data you already have to fulfil your requirement (endpoint)
  • data you don't need for the tonnage band of your registration
  • data you don't need for the type of your registration (such as intermediates under strictly controlled conditions)
  • data submitted more than 12 years ago for substances with EC numbers starting with "4", as this can be used free of charge.

You are:

  • obligated to request the sharing of data involving testing on vertebrate animals,
  • able to request the sharing of data not involving testing on vertebrate animals.

Once you request access to any kind of data, you and your co-registrants are obligated to make every effort to reach an agreement in a fair, transparent and non-discriminatory way.

In some cases, instead of test data, you can also consider waivers, non-testing methods and read-across, if they are scientifically justified. If you prefer to select a different data set than your co-registrants, for example, because the data is not of sufficient quality and detail, you may consider opting-out from the specific endpoint, while still being part of the same joint registration.

 

3. Clarify what you get for your money

You need at least a right to refer to the data you require for your registration. You can, however, also negotiate access to hard-copies of the studies, or a right to use the data for purposes other than REACH.

You also need access to the joint submission. In practice, this means that the lead registrant gives you a token (password) to become a member of the joint submission in REACH-IT. You always need to submit your registration as a member of the joint submission, even though you do not share some or all of the data submitted by the lead registrant. You may still need to pay your part of getting access to the joint registration and receiving the token.

You can also consider negotiating on any of the following, keeping in mind that neither you nor your co-registrant is obligated to buy or sell any of these:

  • Member dossier preparation:

You may compile your dossier yourself or agree with your co-registrant that they prepare your member dossier for you. If this is the case,  you would then only need to submit the member dossier to ECHA yourself. This may save you from additional work, but will be reflected in the costs

  • Chemical safety report (CSR):

For registrations above 10 tonnes a year, you need to submit a CSR. You can buy it from your co-registrant or prepare it yourself. If you decide to prepare your own CSR, you should not pay any costs related to the preparation of your co-registrant's CSR. For registrations between 1-10 tonnes a year, a CSR is not required.

  • Guidance on safe use of the substance:

As the chemical safety report is not needed for registrations between 1–10 tonnes a year, you will need to submit more information in the guidance on safe use section of your registration dossier. The guidance on safe use needs to be consistent with the safety data sheets which you supply to your customers. You may consider sharing the costs of preparing the guidance on safe use jointly with your co-registrants.

 

4. Request a cost breakdown

The sharing of costs needs to be fair, transparent and non-discriminatory. To be able to assess if this is fulfilled, you need information on the individual items that make up the price. You may request a cost breakdown, including an explanation of how the overall costs have been calculated.

Usually, this breakdown lists the costs related to tests (study costs) and administrative work (non-study costs), and shows the price in relation to the information you require for your registration.

It is your right to ask for and receive a cost breakdown. There are no preconditions to get it. You cannot be forced to pay a deposit, sign a non-disclosure agreement or pay an additional fee for that information.

You also have the right to ask for more information if the cost breakdown you receive is not detailed enough.

 

5. Analyse the cost breakdown

Firstly, there are the study costs. Each individual study comes with a price. This price can consist of the costs for performing a test, costs for buying access to required data or costs of satisfying your information requirement with a non-testing method. If there are no invoices available for an item, the costs for performing the test again or another estimate could give an indication of the value.

Secondly, there are non-study costs, which are also called administrative costs, joint submission costs or SIEF management costs. These can relate to:

  • a specific study, for example, the costs for the administration of contracts with a laboratory
  • the dossier preparation
  • the general administration of the substance information exchange forum/joint submission

All items should be justified.

6. Make sure you only pay the appropriate administrative costs

Parts of the administrative costs may be endpoint-specific. For example, costs to conduct a literature search or to develop the reasoning for a data waiver clearly relate to an endpoint and not to the entire dossier.

As you only have to pay for data that you actually need, you do not have to pay endpoint-specific administrative costs if they relate to an endpoint which you do not need or which you already have.

Parts of the administrative costs, however, are not endpoint-specific. For example, the costs related to the token management could apply to all joint submission members equally.

In any case, you have the right to know the mechanism applied to sharing of the cost.

 

7. Discuss the reimbursement scheme

The individual proportion of the costs depends on how many co-registrants share the data. It makes a significant difference if the costs are shared between 2 or 200 registrants.

The number of co-registrants who share the costs may not be clear while you negotiate. This means that the calculation of the price may be based on the current number of co-registrants.

A reimbursement scheme will make sure that the costs are equally shared. Each time a new potential registrant buys access to the data, the overall costs for each co-registrant will reduce. When and how frequently the price is re-calculated needs to be agreed.

However, running a reimbursement scheme may be more costly than the potential reimbursement. You may agree not to establish a reimbursement scheme – potentially for an additional decrease in price. If there is no such scheme, you can ask your co-registrants to justify this.

 

8. Request information on the method used for calculating cost

Your co-registrants may agree on any cost-sharing method they find appropriate. For example, either historical costs or replacement costs can be used. Historical costs are based on actual invoices whereas replacement costs refer to costs for performing the test again.

In addition, your co-registrants may agree to apply increments and decrements to the overall price, such as risk premium, interest rate, inflation, only right to refer versus full access to hard copies or co-ownership, right to refer for REACH purposes versus other regulatory purposes.

In any case, it is important that you understand the method used. If you have doubts, you have the right to request further details and justifications.

For further information, please see Fact sheet on typical cost elements in data-sharing negotiations

 

9. Find an agreement on future costs

You cannot be forced to pay for potential costs that might be incurred at a later point in time.

However, you may agree with your co-registrants to establish a system covering potential future costs. This could apply, for example, for costs for spontaneous dossier updates or costs to generate studies requested during dossier evaluation. You can also decide to re-negotiate sharing such costs once they actually occur

Once again, you do not need to pay for data that is not required for your registration.

10. Discuss the payment methods

Registrants are free to agree on any payment option they wish. There is no legal obligation that requires special treatment for small and medium-sized enterprises (SMEs), but it is important to adjust the negotiations to their specific situation. This can be part of making every effort as required by REACH. You could, for example, agree on payment in instalments.

What if...?

In most cases, you and your co-registrants come to an agreement which satisfies both parties of the negotiations. However, you might also face difficult situations in your negotiations.

 

What if I do not get a reply?

Try other means of communication and keep records – registered letter, telephone, identifying other people in the company, etc.

 

What if the reply does not answer my questions?

Repeat your questions and emphasise that if you do not receive suitable replies by a certain date, this will be considered as non-transparent or not making every effort.

 

What if I do not agree with the proposed price?

Provide an alternative price quotation from a different laboratory; challenge the cost of items, increments and decrements; or suggest an alternative price and explain why you consider that price to be more adequate.

For further information, please see Fact sheet on typical cost elements in data-sharing negotiations

 

What if everything is fair, transparent and non-discriminatory but I still cannot afford the price?

REACH allows you to opt-out from the specific data included in the joint dossier when:

  • you disagree with the selection of studies
  • it would be disproportionately costly for you to submit the specific information jointly

If you prefer selecting a different data set than your co-registrants, for example, because the data is not of sufficient quality and detail, you may consider opting-out from the specific endpoint, while still being part of the same joint registration. Instead of test data, you can also consider these options if they are scientifically justified:

  • conducting a literature search (while respecting intellectual property rights)
  • developing the reasoning for a data waiver
  • applying non-testing methods
  • applying read-across from another substance

If you objectively consider the costs to be justified but still cannot afford the cost of data, you may seek advice regarding alternative sources for funding from your sector organisations or local authorities.

 

What if I have asked all my questions and am still convinced that the price is not fair, transparent or non-discriminatory?

Make sure you communicate clearly to your co-registrants why you consider the price to be unfair, non-transparent or discriminatory. As a last resort, if you cannot agree on data and cost sharing with your co-registrants, ECHA can assess your case. The data-sharing dispute procedure can be managed without legal support and is free-of-charge. You will only be asked to submit all records of your negotiations.

Before you submit a dispute to ECHA, you need to make sure that you are able to demonstrate that every effort has been made by you to reach an agreement, and that you have addressed all of your concerns directly with the other party. Once a dispute is filed, ECHA assesses the efforts made to reach an agreement on the sharing of data and its cost in a fair, transparent and non-discriminatory way, not the price as such and its appropriateness. If ECHA finds that you made every effort to reach an agreement, while your co-registrants failed to do so, ECHA may grant you the permission to refer to the disputed data.


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