# C_2021079EN.01002602.xml

| 8.3.2021 | EN | Official Journal of the European Union | C 79/26 |
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8.3.2021

EN

Official Journal of the European Union

C 79/26

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Request for a preliminary ruling from the Conseil d’État (France) lodged on 4 January 2021 — Fédération des entreprises de la beauté v Agence nationale de sécurité du médicament et des produits de santé

(Case C-4/21)

(2021/C 79/33)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Fédération des entreprises de la beauté

Defendant: Agence nationale de sécurité du médicament et des produits de santé

Questions referred

| 1. | Must the letter of 27 November 2019 from the Head of the ‘Consumer, Environmental and Health Technologies’ Unit of the European Commission’s Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs be regarded as a measure which is preparatory to the decision by which the Commission determines whether a provisional measure of a Member State is justified or not on the basis of Article 27(3) of Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products, (1) in view of the wording of that letter and the absence of any evidence showing that authority has been delegated to the member of staff who signed it to take a decision on behalf of the Commission, or must it be regarded as such a decision, expressing the final position of the Commission? |
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1.

Must the letter of 27 November 2019 from the Head of the ‘Consumer, Environmental and Health Technologies’ Unit of the European Commission’s Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs be regarded as a measure which is preparatory to the decision by which the Commission determines whether a provisional measure of a Member State is justified or not on the basis of Article 27(3) of Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products, (1) in view of the wording of that letter and the absence of any evidence showing that authority has been delegated to the member of staff who signed it to take a decision on behalf of the Commission, or must it be regarded as such a decision, expressing the final position of the Commission?

| 2. | Should the letter of 27 November 2019 have to be regarded as a measure which is preparatory to the decision by which the Commission determines whether a provisional measure of a Member State is justified or not on the basis of Article 27(3) of Regulation (EC) No 1223/2009, when a national court is asked to rule on the legality of a provisional measure taken by a national authority on the basis of Article 27(1) of that regulation, may that court, pending the Commission’s reaching its decision, rule on that provisional measure’s compliance with that article and, if so, to what extent and on which points, or must that court, for as long as the Commission has not declared it to be unjustified, treat the provisional measure as compliant with that article? |
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2.

Should the letter of 27 November 2019 have to be regarded as a measure which is preparatory to the decision by which the Commission determines whether a provisional measure of a Member State is justified or not on the basis of Article 27(3) of Regulation (EC) No 1223/2009, when a national court is asked to rule on the legality of a provisional measure taken by a national authority on the basis of Article 27(1) of that regulation, may that court, pending the Commission’s reaching its decision, rule on that provisional measure’s compliance with that article and, if so, to what extent and on which points, or must that court, for as long as the Commission has not declared it to be unjustified, treat the provisional measure as compliant with that article?

| 3. | If the answer to the preceding question is in the affirmative, must Article 27 of Regulation (EC) No 1223/2009 be interpreted as allowing provisional measures to be taken which apply to a category of products containing the same substance? |
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3.

If the answer to the preceding question is in the affirmative, must Article 27 of Regulation (EC) No 1223/2009 be interpreted as allowing provisional measures to be taken which apply to a category of products containing the same substance?

| 4. | Should the letter of 27 November 2019 have to be regarded as a decision expressing the final position of the Commission on the provisional measure at issue, may the validity of that decision be contested before the national court, even though it has not been the subject of an action for annulment on the basis of Article 263 of the Treaty on the Functioning of the European Union, in view of the fact that the wording of that letter suggested that it was merely a preparatory measure and that the Agence nationale de sécurité du médicament et des produits de santé, to which that letter was addressed, replied to it, expressing its disagreement and indicating that it was maintaining its provisional measure until the Commission gave its final decision, and the Commission itself did not reply to that letter? |
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4.

Should the letter of 27 November 2019 have to be regarded as a decision expressing the final position of the Commission on the provisional measure at issue, may the validity of that decision be contested before the national court, even though it has not been the subject of an action for annulment on the basis of Article 263 of the Treaty on the Functioning of the European Union, in view of the fact that the wording of that letter suggested that it was merely a preparatory measure and that the Agence nationale de sécurité du médicament et des produits de santé, to which that letter was addressed, replied to it, expressing its disagreement and indicating that it was maintaining its provisional measure until the Commission gave its final decision, and the Commission itself did not reply to that letter?

| 5. | If the answer to the preceding question is in the affirmative, was the letter of 27 November 2019 signed by a member of staff to whom authority had been delegated to take the decision on behalf of the Commission and is it valid inasmuch as it is based on the assertion that the safeguard clause mechanism laid down in Article 27 of Regulation (EC) No 1223/2009 ‘covers individual measures concerning cosmetic products made available on the market and not general measures which apply to a category of products containing a certain substance’, in view of the interpretation which must be given to the provisions of that article, combined with those of Article 31 of that regulation? |
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5.

If the answer to the preceding question is in the affirmative, was the letter of 27 November 2019 signed by a member of staff to whom authority had been delegated to take the decision on behalf of the Commission and is it valid inasmuch as it is based on the assertion that the safeguard clause mechanism laid down in Article 27 of Regulation (EC) No 1223/2009 ‘covers individual measures concerning cosmetic products made available on the market and not general measures which apply to a category of products containing a certain substance’, in view of the interpretation which must be given to the provisions of that article, combined with those of Article 31 of that regulation?

| 6. | If the answer to the preceding question is in the affirmative, or if the letter of 27 November 2019 may no longer be contested as part of the present dispute, must the provisional measure taken on the basis of Article 27 of Regulation (EC) No 1223/2009 be regarded as contrary to that regulation from the outset or only as from the notification of that letter to the Agence nationale de sécurité du médicament et des produits de santé, or even as from a reasonable period of time after that notification, intended to allow it to be repealed, in the light, also, of the uncertainty as to the significance of that letter and of the fact that the Commission did not reply to the Agence nationale de sécurité du médicament et des produits de santé, which indicated that it would ‘maintain, as a precautionary measure, its decision of 13 March 2019, pending the decision of the Commission taken in accordance with the provisions of Article 27 of Regulation (EC) No 1223/2009’? |
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6.

If the answer to the preceding question is in the affirmative, or if the letter of 27 November 2019 may no longer be contested as part of the present dispute, must the provisional measure taken on the basis of Article 27 of Regulation (EC) No 1223/2009 be regarded as contrary to that regulation from the outset or only as from the notification of that letter to the Agence nationale de sécurité du médicament et des produits de santé, or even as from a reasonable period of time after that notification, intended to allow it to be repealed, in the light, also, of the uncertainty as to the significance of that letter and of the fact that the Commission did not reply to the Agence nationale de sécurité du médicament et des produits de santé, which indicated that it would ‘maintain, as a precautionary measure, its decision of 13 March 2019, pending the decision of the Commission taken in accordance with the provisions of Article 27 of Regulation (EC) No 1223/2009’?

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(1)  OJ 2009 L 342, p. 59.

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