CELEX: C1997/054/48
Language: en
Date: 1997-02-22 00:00:00
Title: Action brought on 9 December 1996 by Smanor SA, Hubert Segaud and Monique Segaud against the Commission of the European Communities (Case T-201/96)

22 . 2 . 97          EN                  Official Journal of the European Communities                              No C 54/29
The applicants claim that the Court should:                         very composition of Bergasol as a whole, that is to say,
                                                                    due to the use of 5-MOP in association with sun filters
— order the Commission to pay damages in the sum of                 and appropriate excipients . In the present case, the
     FF 152 867 090 ( one hundred and fifty two million             Commission disregarded the two-tier nature of the system
     eight hundred and sixty seven thousand and ninety              imposed on it by the 'cosmetics' Directive, that is to say,
     French francs ) to Laboratoires Pharmaceutiques                the obligation to consult the Scientific Committee
     Bergadem SA and in the sum of FF 161 309 995,33                beforehand and the fact that its competence is dependent
     ( one hundred and sixty one million three hundred and          on the receipt of a positive opinion from the Adaptation
     nine thousand nine hundred and ninety five francs and          Committee .
     thirty three centimes ) to Mr Jean-Jacques Goupil
     personally,                                                    That conduct on the part of the Commission was the
                                                                    direct and decisive cause of the significant financial
— order the Commission to pay all the costs .                       damage suffered by the company and by Mr Goupil
                                                                    personally, consisting of lost profits, research and
Pleas in law and main arguments adduced in support:                 advertising expenses, the fees of experts and advisers and
                                                                    the expense involved in dismissing staff.
The applicants, Laboratoires Pharmaceutiques Bergadem
SA and its chairman and managing director, Jean-Jacques
Goupil , who holds 99,875% of its share capital , have
brought proceedings for damages based on the non­
contractual liability of the Community, as provided for in
                                                                    Action brought on 9 December 1996 by Smanor SA,
the second paragraph of Article 215 and Article 178 of              Hubert Segaud and Monique Segaud against the
the EC Treaty.
                                                                             Commission of the European Communities
                                                                                           ( Case T-201 /96 )
Laboratoires Pharmaceutiques Bergadem SA, which was
placed in receivership by court order of 6 July 1995 and                                      ( 97/C 54/48 )
in judicial liquidation in October 1995 , carried on
business in the field of para-pharmaceutical and cosmetic                           (Language of the case: French)
products . One of its three product lines was Bergasol , a
sun protection oil containing, inter alia , natural citrus          An action against the Commission of the European
essences which themselves contain a chemical substance              Communities was brought before the Court of First
named 5-MOP, a type of furocoumarines ( psoralens ).                Instance of the European Communities on 9 December
                                                                     1996 by Smanor SA, established at Saint Martin D'Ecublei
On 10 July 1995 , the Commission adopted the 18th                   ( France ), Hubert Segaud and Monique Segaud , residing at
Directive 95/34/EC adapting to technical progress                   Saint Martin D'Ecublei ( France ), represented by Laurence
Annexes II, III, VI and VII to Council Directive 76/768/            Roques, of the Val de Marne Bar.
EEC on the approximation of the laws of the Member
States relating to cosmetic products, which limits the              The applicants claim that the Court should :
maximum concentration of furocoumarines ( psoralens ) in
                                                                    — declare that the Commission has failed to act,
sun protection products to 1 mg/kg.
                                                                    — rule, on the basis of Article 215 of the Treaty, that the
The applicants consider that, in making the contested                    Commission has incurred non-contractual liability
adaptation, the Commission breached its obligation                       towards both Smanor SA and Mr and Mrs Segaud,
constantly to update its sources of scientific information,              its founders, salaried managers and majority
which necessitates an exchange of scientific arguments                   shareholders, and that it should pay them
and, indeed, a comparative appraisal of scientific opinions              compensation for the damage in the sum of ECU
where these diverge . It contends that the Commission has                4 562 884 ,
disregarded the clear distinction between the substance in
its chemically pure form and the finished product,                  — order the Commission to pay the costs .
Bergasol , because the 'cosmetics' Directive relates to the
finished cosmetic product as a whole, and that it has                Pleas in law and main arguments adduced in support:
committed a serious breach of the fundamental principles
of the 'cosmetic ' Directive and of the applicants ' rights          On 14 July 1988 the Court of Justice of the European
arising from it, in particular by the misuse of the legal            Communities delivered a judgment (') in a reference made
remedies provided for by that Directive . In reality, the            to the Court of Justice by the Tribunal de Commerce
Directive concerns only the applicants and the product               ( Commercial Court ), L'Aigle, for a preliminary ruling on
 Bergasol; the Commission has used the Directive as a                the interpretation of Articles 30 to 36 of the EEC Treaty
vehicle since it has mandatory legislative effect and cannot         and Articles 5 , 15 and 16 of Council Directive 79/ 112 of
 be challenged directly by individuals .                             18 December 1978 . The question referred in that case had
                                                                     been raised in proceedings for reconstruction under
According to the applicants, to limit the concentration of           judicial supervision brought against Smanor SA before the
 5-MOP in sun protection products to 1 mg/kg constitutes             national court in L'Aigle .
a disproportionate measure which is not appropriate for
 the objective which that limitation seeks to achieve, since         In consequence of that judgment, the applicants requested
 the protection of human health can be ensured by the                the Commission on several occasions to intervene in
 ---pagebreak--- No C 54/30           I EN                 Official Journal of the European Communities                                   22 . 2 . 97
order to ensure compliance with the judgment by the                  awarded, subject to Luxembourg law and also provided
French State. The applicants consider that the Commission            for the exclusive jurisdiction of the Court of Justice of the
allowed the French State total discretion and complete               European Communities .
freedom to resort to whatever domestic legal provisions
were necessary in order to negate the entire effect of               The applicant claims, first, that there has been an
the provisions of Community law thus adjudicated on,                 infringement of Articles 1134, 1134-1 and 1135 of the
thereby seriously undermining the coherence and                      Luxembourg Civil Code, of the general principles of the
effectiveness of those provisions .                                  law on contracts and of the performance in good faith of
                                                                     contracts . It stresses in that regard that the contract at
The applicants further consider that the aggregated                  issue was awarded by valid, public and unequivocal
damage to be made good by the Commission, whose                      consensus ad idem .
failure to act continues to render it liable, amounts to 25
million French francs, valued as at 1988 , subject to                Secondly, the applicant states that even if it were to be
application of the appropriate weighting to take into                assumed that there was no actual or apparent contract in
account the depreciation of that currency, namely 1,19%              this case, which is denied, there should be a finding of
 ( total sum : ECU 4 562 884 ).                                      tortious liability, first, during the precontractual phase
                                                                     and, secondly, by virtue of infringement of Article 1382 et
H 1988 ECR 4489 .                                                    seq. of the Luxembourg Civil Code and of the Grand­
                                                                     Ducal Regulation of 27 January 1994 implementing in
                                                                     Luxembourg law the EEC directives on public works
                                                                     contracts, public supply contracts and public services
                                                                     contracts . Specifically, there is no doubt that all the
                                                                     information required from tenderers was contained in the
Action brought on 10 December 1996 by Embassy                        applicant's tender in accordance with Article 29 of Title II
    Limousines & Services SA against European Parliament             of the abovementioned Grand-Ducal Regulation. Likewise,
                        ( Case T-203/96 )                            Article 23 of the General Conditions established by that
                                                                     regulation permits a supplier to be excluded from
                           ( 97/C 54/49 )                            participation in the contracting procedure only in the
                 (Language of the case: French)                      exhaustive cases to which it refers, which, according to
                                                                     the applicant, are wholly inapplicable here .
An action against the European Parliament was brought
before the Court of First Instance of the European                   The applicant concludes that in any event the defendant
Communities on 10 December 1996 by Embassy                           institution conducted itself negligently and even
                                                                     improperly in ignoring and flouting its interests. If the
Limousines & Services SA, whose registered office is at
                                                                     defendant did not intend to perform the contract and/or
Diegem, Belgium, represented by E. Boigelot, of the
Brussels Bar, with an address for service in Luxembourg at           considered that no contract had arisen, it is particularly
the Chambers of Louis Schiltz, 2 rue du Fort Rheinsheim .            abusive and injurious to require the applicant to carry out
                                                                     urgent and costly preparation, which was particularly
The applicant claims that the Court should:                          demanding in terms of time, energy and expense, for a
                                                                     contract which it is then decided not to perform or which
— order the European Parliament to pay to the applicant              is alleged to be non-existent.
      the sum of FB 24 267 910, subject to an increase or
      reduction in that amount in the course of the
      proceedings, by way of compensation for the financial,
      commercial and non-material damage which it is
      suffering on account of the wrongful conduct of the
      European Parliament,                                           Action brought on 9 December 1996 by Mrs Marta
                                                                     Alvarez-Cotera against the Commission of the European
                                                                                               Communities
— order the European Parliament to bear all the costs of
      the proceedings.                                                                      ( Case T-204/96 )
                                                                                               ( 97/C 54/50 )
Pleas in law and main arguments adduced in support:
                                                                                    (Language of the case: English)
The applicant, a service company, which claims to have
been contacted officially by a representative of the                 An action against the Commission of the European
defendant institution for the purpose of informing it of the         Communities was brought before the Court of First
award to it of the contract for which it had tendered                Instance of the European Communities on 9 December
concerning the provision, by external services, of                   1996 by Mrs Marta Alvarez-Cotera , represented by
chauffeur-driven transport on the occasion of meetings in            Gerald van der Wal, Member of the Bar of the Supreme
Brussels, objects to the withdrawal of the invitation to             Court of the Netherlands, of Barents & Krans, Advocaten
tender in question and the initiation of a new award                 Notarissen , Brussels , with an address for service in
procedure .                                                          Luxembourg at the Chambers of A. May, Luxembourg.
It explains that under the terms of the invitation to tender         The applicant claims that the Court should :
and the framework contract at issue the European
Parliament made the framework contract, and contracts                — declare the decision of 25 September 1996 void,