Opinion of the Advocate General — ECLI:EU:C:2005:178
Date: 2005-03-17
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for annulment - inadmissible
Origin: France

Summary of the Judgment Actions for annulment — Subject-matter — Partial annulment — Condition — Severability of the contested provisions — Objective criterion — Condition not satisfied — Inadmissibility (Art. 230 EC; European Parliament and the Council Directive 2003/15, Art. 1(1) and (2)) Partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act. That requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance. The question whether partial annulment may have such an effect is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted the act at issue. It is for that reason necessary to treat as inadmissible an action brought by a Member State seeking annulment of Article 1(2) of Directive 2003/15 amending Directive 76/768 on the approximation of the laws of the Member States relating to cosmetic products in so far as that provision introduces into Directive 76/768 an Article 4a, the purpose of which is, inter alia, to set out the conditions governing the prohibition of marketing cosmetic products containing ingredients or combinations of ingredients that have been tested on animals, while Article 1(1) of Directive 2003/15, which provides for the deletion of Article 4(1)(i) of Directive 76/768, which has similar subject-matter and which Article 4a, as inserted, is intended to replace, as is clear from recital (18) in the preamble to Directive 2003/15, remains in force, inasmuch as the Member State did not request annulment of Article 1(1), even by way of alternative submission. As Article 1(1) and Article 1(2) of Directive 2003/15 are inseparable provisions, the partial annulment requested by the Member State would objectively alter the very substance of the provisions adopted by the Community legislature in regard to testing on animals for the purpose of developing cosmetic products. (see paras 12-16, 20, 21)