2008/747/EC: Commission Decision of 10 September 2008 terminating the examination procedure concerning the measures imposed by the Republic of Korea affecting the import, distribution and advertising of cosmetics, perfume and toiletries products (notified under document number C(2008) 4837)
Date: 2008-09-10
Institutions: European Commission
Subjects: South Korea, complaint to the Commission, cosmetic product, import, toiletries, trade regulations, trade restriction

20.9.2008

EN

Official Journal of the European Union

L 252/35

COMMISSION DECISION

of 10 September 2008

terminating the examination procedure concerning the measures imposed by the Republic of Korea
affecting the import, distribution and advertising of cosmetics, perfume and toiletries products

(notified under document number C(2008) 4837)

(2008/747/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community,

establishing the European

(d) other practices: labelling procedures, the non-recog­
nition of the EU inventory of cosmetics ingredients,
the prohibition of gift with purchase and some adver­
tising difficulties.

(3)

(4)

(5)

the common commercial policy in order

Having regard to Council Regulation (EC) No 3286/94 of
22 December 1994 laying down Community procedures in
the field of
to
ensure the exercise of the Community’s rights under interna­
in particular those established under the
tional
auspices of the World Trade Organisation (1) and in particular
Article 11(1) thereof,

trade rules,

Whereas:

(1)

(2)

A. PROCEDURAL BACKGROUND

On 2 April 1998, COLIPA (European Cosmetic, Toiletry
and Perfumery Association)
lodged a complaint under
Article 4 of Regulation (EC) No 3286/94 (hereinafter
its members
the Regulation) on behalf of
which export to the Republic of Korea or wish to do so.

those of

The complainant alleged that the Community sales of
in the Republic of Korea were
cosmetics products
hindered by various obstacles
to trade within the
meaning of Article 2(1) of the Regulation. The alleged
obstacles to trade were the following:

(a) conformity assessment procedure whereby testing of
imported cosmetics had to be carried out by the
Korean Administration, in Korea;

(b) burdensome

administrative

tracking of products,
including providing sensitive commercial information
to the Korean industry association;

(c) discriminatory authorisation procedure for adver­

tisements;

The complainant also claimed that these practices were
causing adverse trade effects within the meaning of
Article 2(4) of the Regulation.

The Commission decided therefore, after consultation of
the Advisory Committee established by the Regulation,
that there was sufficient evidence to justify initiating an
examination procedure for the purpose of considering
the legal and factual
issues involved. Consequently, an
examination procedure was initiated on 19 May 1998 (2).

B. THE FINDINGS OF THE EXAMINATION PROCEDURE

In 1999, the investigation concluded on the conformity
assessment procedure that it was both discriminatory and
more burdensome than necessary and therefore was in
the WTO
violation of Articles 5.1.1 and 5.1.2 of
to Trade
Agreement on Technical Barriers
(TBT
Agreement), mainly because
the Korean products,
contrary to imported cosmetics, were not subject to an
to being put on the
authorisation procedure prior
market. The compulsory documentation for the adminis­
trative tracking of products was found to create an unne­
cessary duplication of administrative work for importers
the TBT
and therefore contrary to Article 5.1.2 of
for
the
Agreement. As
cosmetics, the Commission did not find evidence that
the legislation or its enforcement were discriminatory.
Finally, with respect to the other practices mentioned
in the complaint,
the Korean Regulation on labelling
had already been modified and the EU inventory had
been recognised. No complaint was possible on the
Korean regime for gift with purchase since a complete
prohibition could also be found in some Member States.
The investigation also concluded that some of the inves­
tigated measures had cumulatively caused or threaten to
cause adverse effects within the meaning of Article 2(4)
of the Regulation.

advertising regime

regards

(1) OJ L 349, 31.12.1994, p. 71.

(2) OJ C 154, 19.5.1998, p. 12.

L 252/36

EN

Official Journal of the European Union

20.9.2008

(6)

(7)

(8)

(9)

C. DEVELOPMENTS AFTER THE END OF THE
INVESTIGATION

Following the investigation, an agreement on the elimi­
nation of the testing of imported cosmetics was reached
through an Exchange of Letters at the end of July 1999.

(functional

In the meantime, Korea introduced a new legislation on
cosmetics regulating the manufacturing, distribution and
sale of cosmetics and creating a new category of cosmetic
products
for which more
cosmetics)
burdensome procedures were established as compared
to ‘ordinary cosmetics’. The Commission adopted a
decision suspending the TBR procedure (1) in order to
monitor the functioning and administration of the new
rules on cosmetics. The provisional conclusion of the
evaluation of the new regime in 2000 was that it was
too burdensome and potentially trade restrictive.

to the screening of

Following a series of discussions with Korean authorities,
substantial progress was achieved through two conse­
cutive revisions of the Screening Rules for Functional
Cosmetics by the Korean Food and Drug Administration
(KFDA). The amendment introduced in 2003 brought
some improvements
functional
cosmetics, by accepting ‘in vivo’
test data, accepting
efficacy data for the whole formula (instead of data for
specific active ingredients), waiving certain products from
efficacy screening and improving the ingredient specifi­
cation. The amendment adopted in 2004 waived the
requirement of stability data, further improved ingredient
specification, and listed a number of active ingredients as
exempted from efficacy screening.

some issues

However,
remained unresolved and the
importers of EU cosmetics could still not benefit from
those
most
amendments due to the strict interpretation and appli­
cation of the Korean regulations by KFDA in practice.

improvements

brought

the

by

of

(e)

in relation to customs

of comparison tests using placebos); (c) less burdensome
procedures for registration and in-market control of anti-
wrinkle products; (d) the exemption from efficacy data of
same-line products;
increased transparency on the
approval of active ingredients of functional cosmetics;
(f)
imported
cosmetic products, the elimination of the obligation to
provide confidential data to the Korean industry associa­
(g)
tion and the commitment
the
consultation with
preparation, adoption and application of legislation and
administrative guidelines related to cosmetic products.
These commitments are considered by the complainant
(COLIPA) as satisfactory.

to specific deadlines;
relation

clearance of

importers

to

in

D. CONCLUSION AND RECOMMENDATIONS

(11)

In view of the above analysis, it is considered that the
examination procedure has led to a satisfactory situation
with regard to the obstacles that
faced the trade as
alleged in the complaint lodged by COLIPA. The exam­
ination procedure should therefore be terminated in
accordance with Article 11(1) of the Regulation.

(12)

The Advisory Committee has been consulted on the
measures provided for in this Decision,

HAS ADOPTED THIS DECISION:

Article 1

The examination procedure concerning the measures imposed
by the Republic of Korea affecting the import, distribution and
advertising of cosmetics, perfume and toiletries products is
hereby terminated.

(10) After four years of continued discussions, the Korean
authorities have finally agreed to remove the remaining
obstacles on imports and sale of EU cosmetic products in
Korea resulting from the implementation of the Korean
regulations. Those commitments consist, more speci­
fically in: (a) the determination on a case-by-case basis,
subject to review, and taking into account the product as
a whole, of whether the label of a cosmetic product leads
the consumer to believe that it is a functional cosmetic
product (therefore subject to efficacy screening); (b) the
recognition of before-and-after comparison tests on
finished products (as compared to earlier requirement

Article 2

This Decision is addressed to the Member States.

Done at Brussels, 10 September 2008.

For the Commission

Peter MANDELSON
Member of the Commission

(1) OJ L 4, 9.1.2001, p. 29.