Case C-113/05 P: Appeal brought on 4 March 2005 by European Federation for Cosmetic Ingredients (EFfCI) against the order made on 10 December 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-196/03 between European Federation for Cosmetic Ingredients (EFfCI) and European Parliament and Council of the European Union
Date: 2005-05-14
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), animal experimentation, cosmetic product, cosmetics industry

14.5.2005

EN

Official Journal of the European Union

C 115/13

According to the Commission there can be no doubt that the
effect of that prohibition is to restrict the use of trailers lawfully
produced and sold in Members States where there is no such
prohibition, thereby establishing an obstacle to their importa-
tion and sale in Italy.

Pleas in law and main arguments:

Italian
Consequently,
Republic has failed to fulfil its obligations under Article 28 EC.

the Commission submits

that

the

Appeal brought on 4 March 2005 by European Federation
for Cosmetic Ingredients (EFfCI) against the order made
on 10 December 2004 by the Third Chamber of the Court
of First Instance of the European Communities in Case T-
196/03 between European Federation for Cosmetic Ingre-
dients (EFfCI) and European Parliament and Council of the
European Union

(Case C-113/05 P)

(2005/C 115/24)

(Language of the case: English)

An appeal against the order made on 10 December 2004 by
the Third Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-196/03 (1) between European
Federation for Cosmetic Ingredients
(EFfCI) and European
Parliament and Council of the European Union, was brought
before the Court of Justice of the European Communities on 4
March 2005 by European Federation for Cosmetic Ingredients
(EFfCI), established in Brussels (Belgium), represented by K. Van
Maldegem and C. Mereu, lawyers.

The Appellant claims that the Court should:

— declare the present appeal admissible and well-founded;

— set aside the order of the Court of First Instance of 10

December 2004 in Case T-196/03;

— declare the Appellant's requests in Case T-196/03 admis-

sible;

— rule on the merits or, in the alternative, refer the case to

the Court of First Instance to rule on the merits; and

— order the European Parliament and the Council of the Euro-
pean Union to bear all the costs and expenses of both
proceedings.

in the alternative,

1. The Appellant challenges paragraph 16 of the contested
order, which rejects his request to examine the substance
before ruling on admissibility or,
to
reserve any decision until judgment in the main proceed-
ings. The Appellant submits that this rejection is unlawful
because the Court of First Instance misinterprets Article
114(4) of the Rules of Procedure and infringes the principle
of effectiveness and the duty to state reasons. The Court of
First Instance should have interpreted Article 114(4) of the
Rules of Procedure broadly and having due regard to the
circumstances of the case in accordance with the legal prin-
ciple of effectiveness. The Appellant also claims that the
Court of First Instance has infringed its duty to state reasons
by not giving further explanations for the rejection other
than that ‘it has sufficient information from the documents in the
file to give a decision on the applications’.

2. The Appellant submits that the Court of First Instance has
erred in law by dismissing the Appellant's submissions and
concluding that:

(a) the anticompetitive effects produced by the contested
measure on the Appellant do not distinguish him from
other undertakings. The Appellant submits that other
undertakings which do not supply the cosmetics sector,
or which supply the cosmetics sector only and do not
test their ingredients on animals or do not use CMR
substances are in a different situation from that of the
Appellant. The Appellant further submits that the Court
of First Instance misinterprets the rationale stemming
from the Extramet case.

(b) the Appellant did not refer to any binding provision
superior to the contested measure which might have
compelled the Parliament and the Council to take into
account the negative effects of the contested measure:
the Appellant submits that Article 3(g) EC constitutes a
binding provision compelling the Parliament and the
Council
to ensure that competition in the internal
market is not distorted.

such that

(c) the Appellant's patents are not as

the
contested measure makes their commercial use immedi-
ately and definitively unlawful and, by consequence,
make the Appellant
‘individually concerned’ by the
contested measure. The Appellant submits that the fact
that the contested measure expropriates him from his
patented (exclusive)
right makes him individually
concerned in accordance with the Codorniú case.

C 115/14

EN

Official Journal of the European Union

14.5.2005

(d) the Appellant's claim that he is individually concerned
because he participated in the procedure leading to the
adoption of
the contested measure on the basis of
Article 13 of Directive 76/768 and its participation in
the adoption of the contested measure is inadmissible:
the Appellant submits that the Court of First Instance
wrongly concluded that Article 13 refers only to indivi-
dual measures, since Directive 76/768 does not provide
for the possibility to adopt such measures.

within any other of the categories of supply of services referred
to in Article 9(2) of the directive.

(1) OJ L 145 of 13.6.1977, p. 1.

3. Moreover,

the Appellant claims that

the Court of First
Instance infringed the right to complete and effective judi-
cial protection and the right to a fair hearing. The Appellant
submits that his right to complete and effective judicial
protection should have resulted in, at a minimum, the Court
of First Instance hearing the substance of the case instead of
refusing the Appellant's legal standing based on mere formal
arguments.

Reference for a preliminary ruling from the Tribunal de
commerce de Nancy by judgment of that court of 14
February 2005 in Ets Dhumeaux et Cie SA — Société
d'Etudes et de Commerce ‘SEC’ v ALBV SA, ALBV SA v
Tragex Gel — Institut d'expertise vétérinaire ‘IEV’, ALBV
SA v Cigma International SA and ALBV SA v Mr Gustin in
his capacity as administrator of Tragex Gel

(1) OJ C 184, 02.08.2003, p. 50.

Reference for a preliminary ruling from the Conseil d'État
(France), acting in its judicial capacity, by order of that
court of 10 January 2005 in Ministre de l'Économie, des
Finances and de l'Industrie v Gillan Beach

(Case C-116/05)

(2005/C 115/26)

(Language of the case: French)

(Case C-114/05)

(2005/C 115/25)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
the Conseil d'Etat (France),
pean Communities by order of
acting in its judicial capacity, of 10 January 2005, received at
the Court Registry on 8 March 2005, for a preliminary ruling
in the proceedings between Ministre de l'Economie, des
Finances and de l'Industrie and Gillan Beach, a company, on
the following question:

Whether an overall service provided by an organiser to exhibi-
tors at a fair or in an exhibition hall falls within the scope of
the first indent of Article 9(2)(c) of the Sixth Council Directive
77/388 of 17 May 1977 (1), Article 9(2)(a) of that directive or

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Tribunal de commerce
de Nancy (France) of 14 February 2005, received at the Court
Registry on 10 March 2005, for a preliminary ruling in the
proceedings between Ets Dhumeaux et Cie SA — Société
d'Etudes et de Commerce ‘SEC’ and ALBV SA, ALBV SA and
Tragex Gel — Institut d'expertise vétérinaire ‘IEV’, ALBV SA
and Cigma International SA and ALBV SA and Mr Gustin in
his capacity as administrator of Tragex Gel on the following
questions:

— Where the export of beef and veal on which refunds are
granted requires the presentation of a health certificate
formally drawn up by the competent veterinary authority
after daily inspections of the cutting plant for that meat,
must the principle of legitimate expectations be interpreted
as meaning that the recipients of that certificate (the inter-
mediary purchaser, the exporter) may legitimately expect it
to correspond with the product origin indicated, such that
any errors,
faults or negligent acts committed by those
authorities in exercising their powers must be regarded as
exceeding the ordinary risks of business borne by those
recipients and must lead the Member State in question to
assume directly the financial and other consequences
thereof, in particular vis-à-vis the EAGGF?