CELEX: C1997/054/47
Language: en
Date: 1997-02-22 00:00:00
Title: Action brought on 4 December 1996 by Laboratoires Pharmaceutiques Bergadem SA and Jean-Jacques Goupil against the Commission of the European Communities (Case T-199/96)

No C 54/28                EN                   Official Journal of the European Communities                                  22 . 2 . 97
In support of their claims, the applicants allege breach of               for service in Luxembourg at the Chambers of Evelyne
Article 39 of the EC Treaty read in conjunction with                      Korn , 21 , rue de Nassau .
Council Regulation ( EEC ) No 2081 /92 (') on the
protection of geographical indications and designations of                The applicant claims that the Court should :
origin for agricultural products and foodstuffs and with
Commission Regulation ( EC ) No 1107/96 ( 4 ) on the                      — annul the decision classifying her in grade A7, of
registration of geographical indications and designations                       which she was notified by a note dated 5 January
of origin under the procedure laid down in Article 17 of                        1996 ,
Council Regulation ( EEC ) No 2081 /92 .
                                                                          — annul the decision rejecting her administrative
In this connection , according to the applicants , while                        complaint, of which she was notified by a note dated
Parmigiano Reggiano was included in the list of                                 1 August 1996 , received on 3 September 1996 ,
registrations under Regulation No 2081 /92 ('), no
designation of German cheese was registered under the                     — annul , in so far as may be necessary, notice of
name 'Parmesan ', since such a designation must be                              competition COM/T/A/94, inasmuch as it provides
considered to be unlawful if it is used to indicate cheese                      that members of the temporary staff recruited as
produced outside the area of protection supervised by the                       officials are to be classified , subject to certain
Consorzio del Formaggio Parmigiano Reggiano . On the                            conditions , in the grade which they occupied at the
other hand, they claim that the derogation provided for by                      time when the list of suitable candidates was drawn
Article 13 ( 2 ) of Regulation ( EEC ) No 2081 /92 cannot                       up ,
apply to the German cheeses listed in the contested
decision, because the products covered by the protective                  — order the Commission to pay the costs .
term must have been marketed legally for at least five
years before the date of publication of Regulation ( EEC )                Pleas in law and main arguments adduced in support:
No 2081 /92 . There exists a bilateral agreement between
Italy and Germany as a result of which the fundamental                    The applicant, an official in grade A7, step 6 , contests the
condition that the products referred to in Article 13 ( 2 ) of            decision of the Commission expressly refusing her
Regulation No 2081 /92 must have been lawfully marketed                   appointment to grade A6 .
is not satisfied . On the basis of that agreement, Germany
undertook to recognize and protect various typical                        She pleads infringement of the second sentence of the
designations of traditional Italian products , including                  second paragraph of Article 25 of the Staff Regulations,
Parmigiano Reggiano .                                                     claiming that the contested decision contained no
                                                                          statement of the grounds on which is was based . The
The applicants also claim that the Commission failed to                   applicant further considers that the Commission
perform its duties under Article 155 of the EC Treaty. In                 committed a manifest error of assessment in failing to
that connection they consider that not only did the                       regard her professional and academic qualifications as
defendant fail to take steps to prevent a Member State                    exceptional , so as to allow the application of Article 31
from acting in breach of Article 13 ( 2 ) of Regulation                   ( 2 ) of the Staff Regulations, and maintains that there has
( EEC ) No 2081 /92 , but it even ratified that breach by                 been a breach of the duty to have regard for the welfare
                                                                          and interests of officials .
recognizing as lawful the designation of a cheese which
was on the contrary prohibited , since such designation is
reserved for a product covered by Community protection .
(')   OJ No  L 230,  11 . 9.   1996 , p. 12 .
(2)   OJ No  L 268 , 14 . 9.   1992 , p. 1.
O     OJ No  L 208 , 24 . 7.   1992 , p. 1.                               Action brought on 4 December 1996 by Laboratoires
(4 )  OJ No  L 148 , 21 . 6.   1996 , p. 1.                               Pharmaceutiques Bergadem SA and Jean-Jacques Goupil
                                                                              against the Commission of the European Communities
                                                                                                  ( Case T- 199/96 )
                                                                                                     ( 97/C 54/47 )
                                                                                           (Language of the case: French)
Action brought on 3 December 1996 by Christine Dalby
     against the Commission of the European Communities                   An action against the Commission of the European
                             ( Case T-198/96 )                            Communities was brought before the Court of First
                                                                          Instance of the European Communities on 4 December
                                ( 97/C 54/46 )
                                                                          1996 by Laboratoires Pharmaceutiques Bergadem SA, the
                                                                          registered office of which is at Rungis ( France ), in the
                  (Language of the case: French)                          person of Jacqueline Cariven, its administrator appointed
                                                                          by judgment of the Tribunal de Commerce ( Commercial
An action against the Commission of the European                          Court ), Creteil , of 5 October 1995 , and Jean-Jacques
Communities was brought before the Court of First                         Goupil , residing at Chevreuse ( France ), represented by
Instance of the European Communities on 3 December                        Jean-Pierre Spitzer, of the Paris Bar, with an address for
1996 by Christine Dalby, residing in Brussels, represented                service in Luxembourg at the Chambers of Aloyse May,
bv Marc-Albert Lucas , of the Liege Bar, with an address                  31 Grand-Rue .
 ---pagebreak--- 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