Case T-196/03

European Federation for Cosmetic Ingredients (EFfCI)

v

European Parliament and Council of the European Union

(Manifest inadmissibility – Concept of measure of individual concern to an applicant – European Economic Interest Grouping – Contracts being performed – Intellectual property rights)

Order of the Court of First Instance (Third Chamber), 10 December 2004

Summary of the Order

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

(Arts 230, fourth para., EC and 249 EC)

2. Actions for annulment – Action brought by a European Economic Interest Grouping – Admissibility – Conditions

(Art. 230, fourth para., EC; Council Regulation No 2137/85)

3. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Directive on the approximation of the laws of the Member States relating to cosmetic products – Action by a European Economic Interest Grouping combining associations of manufacturers of chemical products – Inadmissible

(Art. 230, fourth para., EC; European Parliament and Council Directive 2003/15)

4. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Directive on the approximation of the laws of the Member States relating to cosmetic products – Measure capable of being of direct and/or individual concern to certain operators because of contracts made prior to its entry into force – Conditions

(Art. 230, fourth para., EC; European Parliament and Council Directive 2003/15)

5. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Action brought by an association of undertakings which took part in the procedure for adopting the measure – Admissibility – Conditions

(Art. 230, fourth para., EC)

6. European Communities – Judicial review of the legality of acts of the institutions – Measures of general scope – Obligation for national courts to apply national procedural rules in a way that enables the legality of Community acts of general application to be challenged – Availability of an action for annulment before the Community judicature in the event of an insurmountable obstacle at the level of national procedural rules – Excluded

(Art. 230, fourth para., EC)

1. Although the fourth paragraph of Article 230 EC makes no express provision regarding the admissibility of actions brought by individuals for annulment of a directive, that fact alone is insufficient for such actions to be declared inadmissible. Moreover, the Community institutions cannot, merely by the choice of the form of the act in question, exclude the judicial protection afforded to individuals under that provision of the Treaty. Therefore, the fact that the contested measure is, by its nature, of general scope and does not constitute a decision within the meaning of Article 249 EC is not sufficient in itself to preclude an action for its annulment being brought by an individual.

(see paras 34, 37)

2. The admissibility of an action for annulment brought by an association set up to promote the collective interests of a category of persons depends, without prejudice to its own interest in bringing proceedings, on the question whether the members of such an association could have brought that action individually. That rule also applies to a European Economic Interest Grouping (EEIG), the purpose of which, as is clear from Article 3 of Regulation No 2137/85 on the EEIG, is solely to facilitate or develop the economic activities of its members to enable them to increase the results thereof, so that it is merely auxiliary to them.

(see para. 43)

3. An action for annulment, by a European Economic Interest Grouping combining two associations of manufacturers of chemical products, of Directive 2003/15 amending Directive 76/768 on the approximation of the laws of the Member States relating to cosmetic products, is inadmissible.

The harmful effects that the prohibitions introduced by that directive and the labelling authorised by it concerning the absence of animal experimentation would have on the competitive position of the undertakings represented by the associations in question do not distinguish them from the other undertakings which do not supply the cosmetics sector or limit themselves to that market but do not test their ingredients on animals or do not use substances classified as carcinogenic, mutagenic or toxic for reproduction. In that regard, it is not sufficient that certain operators are economically more affected by a measure of general scope than their competitors for that measure to be of individual concern to them.

Moreover, the fact that the same undertakings are, in certain countries, the most important in the sector is not a basis for inferring that they belong to a class of traders individually identifiable on the basis of criteria relating to the products in question or the business activities carried on, since a commercial activity is a priori capable of being carried on by any undertaking, actually or potentially liable to find itself in the same position as those operators.

Likewise, the existence of legal protection, such as a patent, for know-how and business secrets of undertakings represented by the associations that are members of the applicant grouping is not capable of distinguishing them from all other manufacturers of chemicals concerned by Directive 2003/15. First, they too may claim such protection for their benefit, since the manufacture and marketing of products is frequently covered by intellectual property rights. Second, whilst each patent identifies the product that it protects, that directive does not impede the use of a specific patent, so that any impact on intellectual property rights is attributable only to the fact, not specific to any person, of producing substances for use by the cosmetics industry.

(see paras 46-47, 49, 57)

4. For the claim concerning contractual commitments to render an action for annulment of a legislative measure, such as Directive 2003/15 amending Directive 76/768 on the approximation of the laws of the Member States relating to cosmetic products, admissible under the fourth paragraph of Article 230 EC, first, a rule of law superior to the measure in question must have required the institutions to take account of the specific situation of the applicant undertakings as compared with that of any other person concerned by that measure. Second, those undertakings must be parties to contracts already concluded, the performance of which, planned to take place during the period of application of the contested measure, is prevented wholly or in part.

(see para. 53)

5. Whist the fact that an association of undertakings played a role in a procedure which led to the adoption of a measure of general scope may justify the admissibility of an action for annulment brought by that association against such a measure even where it is not of direct and individual concern to the member undertakings of that association, the fact of voluntarily participating in the preparation of a measure of a legislative nature, in the context of a procedure not providing for any intervention by individuals, cannot, in contrast to participation in a procedure providing for such intervention, give rise to a right to bring proceedings against that measure.

(see paras 63-65)

6. Apart from the fact that it is the Member States that bear the responsibility for providing a system of remedies and procedures facilitating observance of the right to effective judicial protection and for compensating for any inadequacies of the Treaties in that connection, an interpretation of the rules on admissibility laid down in Article 230 EC to the effect that an action for annulment must be declared admissible if it is shown, following an examination by the Community Court of the national procedural rules, that those rules do not allow the individual to bring proceedings to contest the validity of the Community measure at issue is not acceptable. Indeed, such an interpretation would require the Community Court, in each individual case, to examine and interpret national procedural law, which would go beyond its jurisdiction when reviewing the legality of Community measures.

(see para. 70)