CELEX: C1998/358/16
Language: en
Date: 1998-11-21 00:00:00
Title: Appeal brought on 24 September 1998 by Laboratories Pharmaceutiques Bergaderm SA and Jean-Jacques Goupil against the judgment delivered on 16 July 1998 by the Third Chamber of the Court of First Instance of the European Communities in Case T-199/96 between Laboratories Pharmaceutiques Bergaderm SA and Jean-Jacques Goupil and the Commission of the European Communities (Case C-352/98 P)

21.11.98              EN                Official Journal of the European Communities                                 C 358/7
Correia Ferreira, his spouse, against Companhia de                 Reference for a preliminary ruling by the Diikitiko
Seguros Mundial ConfiancËa S.A. on the following                   Protodikio, Piraeus (Fourth Chamber (Three Judges)), by
questions:                                                         judgment of that court of 29 May 1998 in the case of
                                                                           Henkel Hellas ABEE against the Greek State
1. Does Article 3 of Council Directive 84/5/EEC (1)                                       (Case C-350/98)
    require compulsory insurance against civil liability in
    respect of the use of motor vehicles to cover injury                                   (98/C 358/15)
    caused to the members of the family of the insured
    person or of the driver of the vehicle even where those
    persons are carried free of charge or where only strict
                                                                   Reference has been made to the Court of Justice of the
    civil liability, without negligence, arises, or may the
                                                                   European Communities by judgment of the Diikitiko
    Member State exclude the award of any compensation
                                                                   Protodikio (Administrative Court of First Instance),
    in such cases?
                                                                   Piraeus (Fourth Chamber (Three Judges)), of 29 May
                                                                   1998, received at the Court Registry on 24 September
2. Are the minimum capital sums insured laid down in               1998, for a preliminary ruling in the case of Henkel
    Article 1(2) of Directive 84/5/EEC also applicable to          Hellas ABEE against the Greek State on the following
    situations where strict civil liability, without               questions:
    negligence, arises or may the Member State legislate to
    the effect that, where there is no negligence on the
    part of the driver of the vehicle causing the accident,
                                                                   1. Is the duty charged by the Greek state pursuant to
    the maximum limits of the compensation payable are
                                                                       Article 42(6) of Law 2065/1992 equivalent to the
    to be lower than those limits?
                                                                       capital duty laid down by Article 4 of Council
                                                                       Directive 66/335/EEC (1) as subsequently amended,
3. Must the national court interpret its domestic law so               taking into account that on 1 July 1984 no such
    as to render it compatible with the provisions of a                capital duty existed in Greece?
    directive where the directive has been defectively
    transposed or where pre-existing provisons of
    domestic law remain in force?                                  2. If so, taking account of Greece's special fiscal
                                                                       situation, may the rate of that duty exceed the rate of
4. Is that the case even where that interpretation is                  1 % in the abovementioned directive?
    contrary to the construction generally put on the
    meaning and scope of the provisions of its domestic            (1) OJ L 249, 3.10.1969, p. 25.
    law, or even where that interpretation is consonant
    with the intentions of the national legislature, which
    has nevertheless not succeeded in expressing them in
    the text of the law?
5. And must the national court adopt that interpretation
    conforming to the provisions of the Community
                                                                   Appeal brought on 24 September 1998 by Laboratories
    directive even in a dispute involving only private
                                                                   Pharmaceutiques Bergaderm SA and Jean-Jacques Goupil
    persons?
                                                                   against the judgment delivered on 16 July 1998 by the
                                                                   Third Chamber of the Court of First Instance of the
6. Must the national court adopt an interpretation of its          European Communities in Case T-199/96 between
    domestic law conforming to the provisions of Article 1         Laboratories Pharmaceutiques Bergaderm SA and Jean-
    of Council Directive 90/232/EEC (2) even in the case of        Jacques Goupil and the Commission of the European
    an accident which occurred before the end of the                                        Communities
    period allowed for the Member State to transpose that
                                                                                         (Case C-352/98 P)
    provision into its domestic law?
                                                                                           (98/C 358/16)
7. If it should be concluded that it is not possible to
    interpret domestic law so as to render it consonant
    with the provisions of a directive, does the primacy of
                                                                   An appeal against the judgment delivered on 16 July 1998
    Community law mean that the national court must
                                                                   by the Third Chamber of the Court of First Instance of the
    exclude the application of domestic provisions which
                                                                   European Communities in Case T-199/96 between
    are incompatible with the directive, even in the case of
                                                                   Laboratories Pharmaceutiques Bergaderm SA and Jean-
    a dispute involving only private persons?
                                                                   Jacques Goupil and the Commission of the European
                                                                   Communities was brought before the Court of Justice of
(1) OJ L 8, 11.1.1984, p. 17.                                      the European Communities on 24 September 1998 by
(2) OJ L 129, 19.5.1990, p. 33.                                    Laboratories Pharmaceutiques Bergaderm SA and Jean-
                                                                   Jacques Goupil, represented by Jean-Pierre Spitzer and
                                                                   Yves-Marie Moray, of the Paris Bar.
 ---pagebreak--- C 358/8              EN                    Official Journal of the European Communities                                     21.11.98
The appellants claim that the Court should:                                    the Court of First Instance maintains, in the
                                                                               absence of any opinion Ð pursuant to Article 10
                                                                               of the Cosmetics Directive';
Ð set aside the judgment of the Court of First Instance of
    16 July 1998 (1);
                                                                           Ð the Commission should have given Mr Goupil and
                                                                               the numerous international scientists who have
Ð uphold in their entirety the appellants' claims that the                     continually demonstrated that Bergasol is both
    Court should:                                                              harmless and efficacious an opportunity to make
                                                                               an extensive and genuine contribution to its
    Ð rule that the action is admissible and well founded;                     research.
    Ð order the Commission to pay Laboratories
        Pharmaceutiques Bergaderm SA and Jean-Jacques                      Exclusion from the market is disproportionate to the
        Goupil, personally, FF 152 867 090 and FF                          risks normally inherent in the economic activity at
        161 309 995.33, respectively, by way of damages                    issue, especially as it is by no means justified in terms
        together with interest;                                            of public health.
                                                                      (1) OJ C 299, 26.9.1998, p. 32.
Ð order the Commission to pay the whole of the costs.                 (2) OJ L 167, 18.7.1995, p. 19.
                                                                      (3) Council Directive 76/768/EEC (OJ L 262, 27.9.1976, p. 169).
Pleas in law and main arguments adduced in support:
Ð Breach of Community law in that the Court of First
    Instance held the relevant provision of 18th
    Commission Directive 95/34/EC of 10 July 1995
    adapting to technical progress Annexes II, III, VI and            Action brought on 29 September 1998 by the Commission
    VII to Council Directive 76/768/EEC (2) (hereinafter              of the European Communities against the Kingdom of
    the Adapting Directive') to be a normative measure:                                           Belgium
    since Mr Goupil is the sole holder of a patent for the
                                                                                              (Case C-355/98)
    use in sun lotion of natural essence of citrus fruits
    containing 5-MOP, Bergaderm SA is individually and                                         (98/C 358/17)
    directly concerned by the measure at issue because it is
    the only person to be affected by it.
                                                                      An action against the Kingdom of Belgium was brought
Ð Manifest error of assessment made by the Court of                   before the Court of Justice of the European Communities
    First Instance with regard to the fault committed by              on 29 September 1998 by the Commission of the
    the Commission: contrary to the statement made in                 European Communities, represented by Maria Patakia, of
    the relevant provision of the Adapting Directive, it              its Legal Service, acting as Agent, with an address for
    was perfectly possible Ð on the basis of all the                  service in Luxembourg at the office of Carlos Gómez de la
    scientific studies available on Bergasol as a finished            Cruz, Wagner Centre, Kirchberg.
    product Ð logically to conclude that Bergasol is both
    harmless and efficacious. The approach adopted by
    the Commission, which deliberately disregarded the                The Commission claims that the Court should:
    principle of audi alteram partem, played into the
    hands of Bergaderm's commercial competitors.
                                                                      1. Declare that, by adopting, within the framework of
                                                                           the Law of 10 April 1990 on security firms, security
(By way of subsidiary pleas)                                               systems firms and internal security services, provisions
                                                                           which:
Ð Breach of Community law in that the Court of First
    Instance did not find any breach of a higher-ranking                   (a) make it necessary to obtain prior authorisation in
    rule of law for the protection of individuals. In the                       order to operate an undertaking of any of the
    context of the Cosmetics Directive' (3), the                               kinds referred to in the said Law, that
    Commission has no discretion, because it must follow                        authorisation being subject to a certain number of
    a strict procedure involving consultation and approval,                     conditions, namely that:
    and if it in any way fails to have proper regard for
    that procedure or commits any error in connection                           Ð a security firm must have a place of business
    therewith, it incurs liability. Specifically, in the present                    in Belgium;
    case:
                                                                                Ð persons who
    Ð the Commission should have approached the                                     Ð have charge of the actual management of
        Council after the Adaptation Committee delivered                                 a security firm or internal security service,
        an unfavourable opinion on 1 June 1992 Ð or, as                                  or who