Judgment — ECLI:EU:T:1998:176
Date: 1998-07-16
Language of the case: French
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Concepts: Rights of the defence and procedural guarantees;Cosmetic products
Procedure: Action for damages - unfounded
Origin: France

Summary of the Judgment 
1. Approximation of laws — Cosmetic products — Directive 76/768 — List of substances whose 
use is prohibited — Amendment procedure — Consultation of the Adaptation Committee by 
the Commission — Committee's opinion divided — Commission's withdrawal of its proposal 
— Whether permissible 
(Council Directive 76/768, Art. 10(3)(a) and (b)) 
2. Community law — Principles — Rights of the defence — Principle that the procedure must 
be inter partes — Scope 
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SUMMARY — CASE T-199/96 
3. Approximation of laws — Cosmetic products — Directive 76/768 — List of substances whose 
use is prohibited — Amendment procedure — Scientific assessment — Amendment measure 
adopted by the Commission on the basis of an opinion issued by the Scientific Committee on 
Cosmetology — Whether permissible 
(Council Directive 76/768) 
1. The Commission was not in breach of 
Directive 76/768 on the approximation of 
the laws of the Member States relating to 
cosmetic products where, having submit­
ted to the Adaptation Committee estab­
lished under the Directive alternative pro­
posals for restricting the maximum 
permitted level of a substance used in the 
preparation of cosmetic products, it with­
drew those proposals because the Mem­
ber States' delegations were divided in 
their preference between them. 
A situation of that kind is not covered by 
Article 10(3)(a) of the cosmetics directive, 
which provides that 'the Commission 
shall adopt the proposed measures when 
they are in accordance with the opinion 
of the Committee'; nor is it covered by 
Article 10(3)(b) which provides that 
'where the proposed measures are not in 
accordance with the opinion of the Com­
mittee, or if no opinion is adopted, the 
Commission shall without delay propose 
to the Council the measures to be 
adopted ...'. In such a situation the 'pro­
posed measures' no longer exist since, 
after the Adaptation Committee had met, 
the Commission withdrew its proposal. 
The Commission cannot be criticised for 
withdrawing its proposal in such circum­
stances since — in cases concerning pub­
lic health, which are both delicate and 
controversial — it must have a sufficiently 
broad discretion and enough time to 
enable it to arrange for the scientific 
issues which will determine its decision to 
be examined afresh. 
2. The principle that the procedure must be 
inter partes is a fundamental principle of 
Community law which applies in all 
administrative proceedings initiated 
against a person which are liable to cul­
minate in a measure adversely affecting 
that person, but does not apply in the 
context of the legislative process. 
3. The Commission cannot be criticised for 
requesting the Scientific Committee on 
Cosmetology for an opinion on the 
harmfulness of a substance used in the 
preparation of cosmetic products or for 
complying with the Committee's opin­
ion, drawn up on the basis of a large 
number of meetings, visits and specialist 
reports, since the protection of public 
health is one of the objectives of Direc­
tive 76/768 and the Commission is not in 
a position to carry out itself the scientific 
assessments needed to further that objec­
tive. The Scientific Committee has the 
task of assisting the Community authori-
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BERGADERM AND GOUPIL v COMMISSION 
ties on scientific and technical issues in 
order to enable them to determine, in full 
knowledge of the facts, which adaptation 
measures are necessary. Furthermore, 
where there is uncertainty as to the exist­
ence or extent of risks to the health of 
consumers, the institutions may take pro­
tective measures without having to wait 
until the reality and the seriousness of 
those risks become fully apparent. 
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