Opinion of the Advocate General — ECLI:EU:C:2000:54
Date: 2000-01-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for annulment;Appeal - unfounded
Origin: France

Summary of the Judgment 
1. Appeal — Pleas in law — Mere repetition of the pleas in law and arguments submitted 
to the Court of First instance — Failure to identify the error of law relied on — 
Inadmissibility 
(EC Treaty, Art. 168a (now Art. 225 EC); EC Statute of the Court of Justice, Art. 51, 
first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c)) 
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SUMMARY — CASE C-352/98 P 
2. Non-contractual liability — Liability of the Community under Article 215 of the 
Treaty (now Article 288 EC) — Liability of the Member States for breaches of 
Community law — Identical conditions under which liability may be incurred — 
Sufficiently serious breach of Community law 
(EC Treaty, Art. 215 (now Art. 288 EC)) 
3. Approximation of laws — Cosmetic products — Directive 76/768 — List of sub­
stances whose use is prohibited — Amendment procedure — Consultation of the 
Adaptation Committee by the Commission — No opinion delivered — Commission's 
withdrawal of its proposal — Whether permissible 
(Council Directive 76/768) 
1. It follows from Article 168a of the 
Treaty (now Article 225 EC), the first 
paragraph of Article 51 of the Statute 
of the Court of Justice and Arti­
cle 112(1)(c) of the Rules of Procedure 
that an appeal must indicate precisely 
the contested elements of the judgment 
which the appellant seeks to have set 
aside, and also the legal arguments 
specifically advanced in support of the 
appeal. That requirement is not satis­
fied by an appeal which, without even 
including an argument specifically 
identifying the error of law allegedly 
vitiating the contested judgment, con­
fines itself to reproducing the pleas in 
law and arguments previously submit­
ted to the Court of First Instance. Such 
an appeal amounts in reality to no 
more than a request for re-examination 
of the application submitted to the 
Court of First Instance, which the 
Court of Justice does not have jurisdic­
tion to undertake. 
(see paras 34-35) 
2. The conditions under which the Com­
munity may incur non-contractual lia­
bility for damage caused by its institu­
tions or by its servants in the perfor­
mance of their duties cannot, in the 
absence of particular justification, dif­
fer from those governing the liability of 
the State for damage caused to indivi­
duals by a breach of Community law. 
The protection of the rights which 
individuals derive from Community 
law cannot vary depending on whether 
a national authority or a Community 
authority is responsible for the damage. 
Community law confers a right to 
reparation where three conditions are 
met: the rule of law infringed must be 
intended to confer rights on indivi­
duals; the breach must be sufficiently 
serious; and there must be a direct 
causal link between the breach and the 
damage sustained by the injured par­
ties. 
As to the sufficiently serious breach of 
Community law, as regards both Com-
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BERGADERM AND GOUPIL V COMMISSION 
munity liability under Article 215 of 
the Treaty (now Article 288 EC) and 
Member State liability for breaches of 
Community law, the decisive test for 
finding that there has been such a 
breach is whether the Member State 
or the Community institution con­
cerned manifestly and gravely disregar­
ded the limits on its discretion. Where 
the Member State or the institution in 
question has only considerably 
reduced, or even no, discretion, the 
mere infringement of Community law 
may be sufficient to establish the exis­
tence of a sufficiently serious breach. 
The general or individual nature of a 
measure taken by an institution is not, 
in that regard, a decisive criterion for 
identifying the limits of the discretion 
enjoyed by the institution in question. 
(see paras 41-44, 46) 
3. Where no opinion has been delivered 
by the Adaptation Committee, set up 
by Directive 76/768 on the approxima­
tion of the laws of the Member States 
relating to cosmetic products, on mea­
sures to restrict the maximum accepta­
ble level of a substance used in the 
preparation of cosmetic products, the 
Commission is not obliged to submit 
the same measures, without amend­
ment, to the Council. In delicate and 
controversial cases the Commission 
must have a sufficiently broad discre­
tion and enough time and is therefore 
entitled to withdraw its proposal for 
measures even after the Adaptation 
Committee has met. 
(see paras 65-66) 
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