Case T-213/02

SNF SA

v

Commission of the European Communities

(Action for annulment – Directive 2002/34/EC – Restrictions on the use of polyacrylamides in the composition of cosmetic products – Person individually concerned – Admissibility)

Order of the Court of First Instance (Fifth Chamber), 6 September 2004

Summary of the Order

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Legislative measure – Directive

(Art. 230, fourth para., EC)

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Legislative measure – Action brought by an economic operator operating in the sector affected and belonging to a restricted circle – Inadmissible

(Art. 230, fourth para., EC)

3. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Directive 2002/34 restricting the use of polyacrylamides in the composition of cosmetic products – Action by an undertaking which is the holder of a patent filed in a Member State for the manufacture of polyacrylamides – Inadmissibility

(Art. 230, fourth para., EC; Commission Directive 2002/34)

1. Although the fourth paragraph of Article 230 EC makes no express provision regarding the admissibility of actions brought by private persons for annulment of a directive, that fact is not sufficient to render such an action inadmissible. Moreover, the Community institutions cannot exclude, merely by the choice of the form of the act in question, the judicial protection afforded to individuals under that provision of the Treaty. Further, in certain circumstances, even a legislative measure which applies to economic operators generally may be of direct and individual concern to some of them.

(see paras 54-55)

2. The possibility of determining more or less precisely the number or even the identity of the persons to whom a legislative measure applies by no means implies that those persons must be regarded as individually concerned by that measure, within the meaning of the fourth paragraph of Article 230 EC, as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question.

Therefore, the mere fact of being concerned as an undertaking operating in the sector affected by a measure does not suffice for that undertaking to be regarded as individually concerned in the absence, in particular, of an additional factor, namely a causal link between the operator in question and the intervention of the institution showing that when it adopted the contested measure the institution determined the treatment to be accorded to it.

It follows that in the context of an action for annulment of a directive which applies to objectively defined situations and gives rise to legal effects in respect of categories of persons defined in general or abstract terms, it matters little that the operators concerned are limited in number, in so far as that circle is not closed when the contested directive was adopted, since there is nothing in that directive to preclude undertakings which were not yet active prior to its adoption from deciding subsequently to carry on the activity concerned by the directive.

(see paras 59-63)

3. An action brought by the holder of a patent filed in a Member State for the manufacture of solid polyacrylamides for use in the cosmetic industry contrary to Directive 2002/34 adapting to technical progress Annexes II, III and VII to Council Directive 76/768 on the approximation of the laws of the Member States, relating to cosmetic products, is inadmissible in so far as it limits the use of polyacrylamides in the composition of cosmetic products. The applicant does not have an exclusive right to produce a ‘cosmetic product’ as defined by Article 1 of Directive 76/768 and therefore is not affected by the contested directive in its capacity as the proprietor of exclusive rights, but merely as a manufacturer of raw materials or ingredients used in the manufacture of cosmetic products in the same way as any other operator manufacturing those raw materials or ingredients. Furthermore, its exclusive rights are still valid and the exploitation of them is not necessarily limited to cosmetic products but may also apply to pharmaceutical, veterinary and detergent products.

(see paras 67, 69-70)