Keywords

Summary



Keywords

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

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)

Summary

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 submitted to the Adaptation Committee established under the Directive alternative proposals for restricting the maximum permitted level of a substance used in the preparation of cosmetic products, it withdrew those proposals because the Member 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 Committee, 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 `proposed 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 circumstances since - in cases concerning public 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 culminate 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 opinion, 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 Directive 76/768 and the Commission is not in a position to carry out itself the scientific assessments needed to further that objective. The Scientific Committee has the task of assisting the Community authorities 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 existence or extent of risks to the health of consumers, the institutions may take protective measures without having to wait until the reality and the seriousness of those risks become fully apparent.