In Case C-482/04

ORDER OF THE COURT (Fifth Chamber)

21 November 2005 (*)

(Appeal – Directive on cosmetic products – Restrictions on the use of polyacrylamides in the composition of cosmetic products)

In Case C-482/04 P,

APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 19 November 2004,

SNF SA, established in Andrézieux (France), represented by K. Van Maldegem and C. Mereu, lawyers,

appellant,

the other party to the proceedings being:

Commission of the European Communities, represented by X. Lewis and A.Caeiros, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of J. Makarczyk (Rapporteur), President of the Chamber, R. Schintgen and R. Silva de Lapuerta, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

after hearing the views of the Advocate General,

makes the following

Order

1In its appeal, SNF SA (‘SNF’) seeks annulment of the order of the Court of First Instance of the European Communities of 6 September 2004 in Case T‑213/02 SNF v Commission [2004] ECR II-0000 (‘the contested order’), in which the Court of First Instance declared inadmissible SNF’s action seeking partial annulment of the Twenty-sixth Commission Directive 2002/34/EC of 15 April 2002 adapting to technical progress Annexes II, III and VII to Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products (OJ 2002 L 102, p. 19; ‘the contested directive’), in so far as it restricted the use of polyacrylamides in the composition of cosmetic products.

Legal background

2Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (JO 1976 L 262, p. 169), as amended, before the adoption of the contested directive, by Commission Directive 2000/41/EC of 19 June 2000 postponing for a second time the date after which animal tests are prohibited for ingredients or combinations of ingredients of cosmetic products (OJ 2000 L 145, p. 25; ‘the cosmetics directive’), is aimed essentially at safeguarding public health, such aim having to be achieved by means also taking account of economic and technological needs.

3Article 4(1) of the cosmetics directive provides:

‘Without prejudice to their general obligations deriving from Article 2, Member States shall prohibit the marketing of cosmetic products containing:

…

b)substances listed in the first part of Annex III, beyond the limits and outside the conditions laid down,

…’

4According to Article 8 of that directive:

‘1.In accordance with the procedure laid down in Article 10 the following shall be determined:

–the methods of analysis necessary for checking the composition of cosmetic products,

–the criteria of microbiological and chemical purity for cosmetic products and methods for checking compliance with those criteria.

2.The common nomenclature of ingredients used in cosmetic products and, after consultation of the Scientific Committee on Cosmetology, the amendments necessary for the adaptation to technical progress of the Annexes shall be adopted in accordance with the same procedure, as appropriate.’

5Article 9 of the cosmetics directive provides:

‘1.The Committee on the Adaptation to Technical Progress of the Directives on the Removal of Technical Barriers to Trade in the Cosmetic Products Sector, hereinafter called “the Committee”, is hereby set up. It shall consist of representatives of the Member States with a representative of the Commission as chairman.

2.The Committee shall adopt its own rules of procedure.’

6Article 10 of that directive provides:

‘1.Where the procedure laid down in this Article is to be followed, matters shall be referred to the Committee by the chairman, either on his own initiative or at the request of the representative of a Member State.

2.The representative of the Commission shall submit to the Committee a draft of the measures to be adopted. The Committee shall deliver its opinion on the draft within a time-limit set by the chairman according to the urgency of the matter. …

3.a)The Commission shall adopt the proposed measures when they are in accordance with the opinion of the Committee.

b)Where the proposed measures are not in accordance with the opinion of the Committee, or if no opinion is adopted, the Commission shall without delay propose to the Council the measures to be adopted. The Council shall act by a qualified majority.

c)If, within three months of the proposal being submitted to it, the Council has not acted, the proposed measures shall be adopted by the Commission.’

7According to Article 13 of the cosmetics directive:

‘Precise reasons shall be stated for any individual measures placing a restriction or ban on the marketing of cosmetic products taken pursuant to this Directive. [They] shall be notified to the party concerned together with particulars of the remedies available to him under the laws in force in the Member States and of the time‑limits allowed for the exercise of such remedies.’

8On 15 April 2002, the Commission of the European Communities adopted the contested directive in accordance with Article 8(2) of the cosmetics directive and after having consulted the Scientific Committee on Cosmetic Products and Non-Food Products intended for consumers (‘the SCCNFP’).

9Article 1 of the contested directive provides:

‘Directive 76/768/EEC is hereby amended as indicated in the Annex to this Directive.’

10According to Article 2 of that directive:

‘Member States shall take the necessary measures to ensure that cosmetic products containing the substances listed in Annexes II, III and VII to Directive 76/768/EEC, as set out in the Annex to this Directive, which are supplied to the final consumer after 15 April 2004, comply with the provisions of this Directive.’

11In particular, reference number 66 was added to Annex III to the cosmetics directive and, in respect of polyacrylamides, fixed a maximum residual acrylamide content of 0.1mg/kg in bodycare leave-on products and 0.5 mg/kg in other cosmetic products.

Factual background

12SNF is a leading producer of acrylamide and acrylamide-based polymers such as polyacrylamides which it sells throughout the world. It has developed a range of polyacrylamides, which are polymers specially designed for use in cosmetics and personal care products, under the trade mark Flocare.

13SNF is also a member of the Polyacrylamide Producers Group (‘the PPG’), made up of the seven producers of polyacrylamides within the European Community. Two of those producers, including SNF, also manufacture acrylamide.

14Before the adoption of the contested directive, the PPG was consulted by the European Cosmetic Toiletry and Perfumery Association (‘Colipa’), an industry association bringing together manufacturers of cosmetic products, on a draft opinion of the SCCNFP, which the latter had sent to Colipa, concerning the risk of cancer associated with the use of polyacrylamides in cosmetic products. On 3 September 1998, Colipa sent a response to the SCCNFP, part of which had been prepared by the PPG. It stated in that response that the SCCNFP’s draft opinion should be revised in the light of new data and current risk-assessment methodology. Colipa and the PPG attended meetings with the SCCNFP and submitted to that body several assessments of the risks associated with the use of polyacrylamides in cosmetic products.

The contested order

15By application lodged at the Registry of the Court of First Instance on 12 July 2002, SNF brought an action for partial annulment of the contested directive. By document lodged on 22 August 2002, on the basis of Article 114(1) of the Rules of Procedure of the Court of First Instance, the Commission raised an objection of inadmissibility.

16By way of measures of organisation of procedure, the Court of First Instance put a number of questions to SNF. Having, moreover, taken the view that there was no need to open the oral procedure, it directly examined the objection brought before it, and in the contested order dismissed the action as inadmissible on the ground that SNF had not shown that it was individually concerned by the contested directive within the meaning of the fourth paragraph of Article 230 EC.

17In that regard, at paragraph 56 of the contested order, the Court of First Instance referred by way of preliminary observation to the consistent case-law of the Court of Justice, as shown, in particular, in paragraph 36 of the judgment in Case C‑50/00P Unión de Pequeños Agricultores v Council [2002] ECRI‑6677 and paragraph 45 of the judgment in Case C-263/02P Commission v Jégo-Quéré [2004] ECRI‑3425).

18The Court held that the provisions in question of the contested directive, which applied to objectively defined situations and gave rise to legal effects in respect of categories of persons defined in general or abstract terms, namely, in particular, all producers of cosmetics, concerned SNF only in its objective capacity in the polyacrylamides manufacturing sector on the same basis as any other operator in the same position (paragraphs 61 and 62 of the order).

19SNF did not have an exclusive right to produce a cosmetic product as defined by Article 1 of the cosmetics directive, since it manufactured solid polyacrylamides which it then supplied to cosmetics producers as raw materials or ingredients for the manufacture of cosmetics. It inferred that SNF was not affected by the contested directive in its capacity as the proprietor of exclusive rights, but merely as a manufacturer of raw materials or ingredients used in the manufacture of cosmetic products in the same way as any other operator manufacturing those raw materials or ingredients (paragraphs 67 and 69 of the contested order).

20The possibility of SNF using the exclusive rights it held in sectors other than cosmetic products, such as pharmaceutical, veterinary and detergent products, highlighted the difference between the applicant’s position and that of the applicant in Case C-309/89 Codorniu v Council [1994] ECR I-1853, in which the effect of the contested provision was to make the applicant’s commercial use of its trade mark immediately and definitively unlawful (paragraphs 70 and 71 of the contested order).

21Having found that the contested directive was not an individual measure restricting or banning the marketing of cosmetic products within the meaning of Article 13 of the cosmetics directive, but a measure of general application adopted by the Commission pursuant to Article 8(2) of that directive, the Court held that that article did not confer any procedural right on SNF, so that no procedural right could have been infringed by reason of the adoption of the contested directive (paragraphs 73 and 74 of the contested order).

22Finally, the Court held that the set of specific circumstances which led the Court of Justice, in Case C‑358/89 Extramet Industrie v Council [1991] ECRI‑2501, to hold that, in that case, the company in question had to be regarded as individually concerned had no equivalent in the proceedings concerning SNF (paragraph 77 of the contested order).

23Having dismissed the action before it, the Court of First Instance ordered SNF to pay the costs.

The appeal

24In its appeal, SNF asks the Court of Justice to declare the applications which it submitted before the Court of First Instance to be admissible, to rule on the substance of the case or, in the alternative, send the matter back before the Court of First Instance and, finally, to order the Commission to pay the costs. By document lodged at the Registry of the Court of Justice on 15 April 2005, SNF applied for a hearing to be held.

25The Commission contends that the appeal should be dismissed and SNF ordered to pay the costs.

26Under Article 119 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal in whole or in part, without opening the oral procedure (order in Case C‑360/02P Ripa di Meana v Parliament [2004] ECRI-10339, paragraph 18.

The first plea

Arguments of the parties

27In its first plea in law in support of its appeal, SNF criticises paragraph 51 of the contested order. It argues that the Court of First Instance was wrong to reject its plea for joinder of the plea of inadmissibility with the substance because, first, that rejection, which was based on a misinterpretation of Article 114(1) of the Rules of Procedure, deprived it of the legal protection to which it was entitled, and, second, insufficient grounds were stated for the decision not to open the oral procedure.

28The Commission argues that the first plea must be rejected, in particular because the statement in paragraph 51 of the contested order is correct and full, and moreover that the first plea is not really separate from the other pleas raised in support of the appeal.

Findings of the Court

29Under Article 114(1) to (3) of the Rules of Procedure of the Court of First Instance, where a party asks the Court to rule on admissibility, lack of competence or other preliminary plea not going to the substance of the case, the President shall prescribe a period within which the opposite party may lodge a document containing a statement of the form of order sought by that party and its pleas in law, the remainder of the proceedings being oral, save where the Court of First Instance decides otherwise. Under Article 114(4), the Court of First Instance shall, after hearing the Advocate General, decide on the application or reserve its decision for the final judgment.

30It is clear from those provisions, first, that the Court of First Instance is under no obligation to hold a hearing, and, second, that it alone decides whether it is appropriate to rule immediately on the objection of inadmissibility or to reserve the decision for final judgment. In this case, therefore, by deciding to rule only on the objection of inadmissibility raised by the Commission, without opening the oral procedure on the grounds that it considered itself sufficiently informed by the documents on the file, and in particular by SNF’s replies to the questions which it had put by way of measures of organisation of procedure, the Court of First Instance correctly applied Article 114(1) of the Rules of Procedure (see, to that effect, the order in Ripa di Meana, cited above, paragraph 35).

31The first plea must therefore be dismissed as clearly unfounded.

The second plea

Arguments of the parties

32In the first part of the second plea, SNF argues that the Court of First Instance erred in law in its legal assessment of the facts by holding that there was no causal link between its situation as an operator and the intervention of the Commission, without drawing the consequences of its belonging to a closed circle of producers and suppliers of polyacrylamides.

33According to the second part of the plea, the Court of First Instance also erred in law in assessing the legal consequences attaching to the patents held by SNF. The latter argues, in that respect, that the contested directive has had the effect of preventing it from using its exclusive right to market specific compositions obtained through particular processing methods. Thus, through the effect of that directive, making it immediately and definitively unlawful to make the commercial use of its patented products, SNF was individually concerned within the meaning of the case-law of the Court of Justice in Codorniu.

34In the third part of this plea, SNF argues that the Court of First Instance also erred in law by not qualifying its position as equivalent to that which, in Extramet, was judged sufficient to confer legal standing on the operator concerned. It argues in that respect that it is one of the two companies which, at the time the contested directive was adopted, was manufacturing and marketing both acrylamide and polyacrylamides, that it is the only undertaking in the European Union which, at that time, was producing solid polyacrylamides and marketing them in powder form for cosmetic uses, its business depending to a great extent on its ability to continue to market such products and thereby benefit from the exclusive use conferred by its patents obtained after substantial investment.

35The Commission considers that SNF merely repeats its observations at first instance. It adds that the first part of the second plea does not specify how and why the Court of First Instance erred in law. Concerning the second part of that plea, it argues that the Codorniu judgment is not relevant and that, in any event, the patents held by SNF are not invalidated by the contested directive.

Findings of the Court

36Concerning the first part of the second plea, as the Court of First Instance rightly points out in paragraphs 55 and 56 of the contested order, a legislative measure which applies to the relevant economic operators generally may concern some of them individually only if it affects them by reason of certain attributes which are peculiar to them, or by reason of factual circumstances which differentiate them from all other persons and thereby distinguish them individually in the same way as the person addressed (see, in particular, Case 26/86 Deutz und Gelderman v Council [1987] ECR 941, paragraph 9; Extramet, paragraph 13; Codorniu, paragraph 19; order in Case C‑10/95P Asocarne v Council [1995] ECRI‑4149, paragraph 41; judgment in Unión de Pequeños Agricultores, paragraph 36).

37In addition, in paragraphs 61 and 62 of the contested order, when making its assessment of the legal scope of the contested directive, the Court of First Instance stated that the contested directive applied to objectively defined situations and gave rise to legal effects in respect of categories of persons defined in general or abstract terms, namely, in particular, all producers of cosmetics. It also held that, in any event and contrary to the assertions of SNF, the latter did not belong to a defined circle of operators which could not be enlarged after the entry into force of the contested directive, since the directive did not prohibit sales of polyacrylamides, but merely modified the conditions and limits within which the latter might contain residual amounts of acrylamides for use in cosmetics and bodycare products.

38The Court of First Instance was therefore right to hold that, whilst SNF was an economic operator concerned by the contested directive, it was concerned in the same way as any other undertaking operating in the polyacrylamides manufacturing sector in the same position.

39It was thus right to infer that the factors relied on by SNF were not capable of characterising a causal link between the situation of the party concerned and the intervention of the Commission sufficient to show that, by adopting the contested directive, the Commission had determined the treatment to be accorded to that operator.

40Concerning the second part of the second plea, it is true that, in paragraphs 21 and 22 of Codorniu, the Court of Justice acknowledged the company in that case as being in a situation differentiating it from all other operators in relation to the general legislative measure in question, because that provision had led to that company being prevented from using its graphic trade mark in commerce.

41However, as the Court of First Instance rightly held in paragraphs 68 to 71 of the contested order, the contested directive does not have the effect of preventing use of SNF’s exclusive rights arising from the patents which it owns or of depriving it of those rights, which are not, moreover, exclusive rights for the production of cosmetic products for the purposes of the cosmetics directive, and may be used in relation to other products, such as pharmaceutical, veterinary or detergent products.

42The Court was therefore right to hold that SNF did not hold a right exclusively to market products which were the result of its inventions, identical to the right which the operator concerned had, by virtue of its registered trade mark, in Codorniu.

43Concerning the third part of the second plea, by virtue of Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice, the appeal may be based only on pleas concerning the infringement of rules of law. The Court of First Instance therefore has sole jurisdiction to establish and assess the relevant facts and to assess the evidence, save where such facts and evidence have been distorted (see, to that effect, Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECRI‑1981, paragraphs 49 and 66; Joined Cases C‑238/99P, C‑244/99P, C‑245/99P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 194; and Case C‑199/99P Corus UK v Commission [2003] ECR I‑11177, paragraph 65). The Court of Justice has jurisdiction only to review the legal characterisation of the facts and the legal conclusions which the Court of First Instance has drawn from them (see, in particular, the order in Case C‑19/95P San Marco v Commission [1996] ECR I‑4435, paragraph 39).

44The reality in this case is that, without adducing proof of any kind that the evidence in the documents before the Court of First Instance was distorted, SNF in its arguments is doing no more than challenging the assessment of facts which the Court of First Instance made in relation to the characteristics of its economic activity and from which it inferred that SNF was not in a situation comparable with that of the relevant company in Extramet. That assessment does not constitute a question of law submitted, as such, to the review of the Court of Justice on an appeal (Case C‑104/00P DKV v OHIM [2002] ECRI‑7561, paragraph 22; order in Case C‑326/01P Telefon & Buch v OHIM [2004] ECRI‑1371, paragraph 35; order in Case C‑192/03P Alcon v OHIM [2004] ECR I-8993, paragraph 34).

45Therefore, the second plea must be rejected in all its parts, the first two being clearly unfounded and the third being clearly inadmissible.

The third plea

Arguments of the parties

46According to SNF’s third plea, the Court of First Instance, in concluding that SNF had not demonstrated that it was individually concerned by the contested directive, infringed its right to complete and effective judicial protection and its right to be heard. SNF argues in that respect that, by the restriction on the right of action of individuals which it infers, the judgment of the Court of Justice in Unión de Pequeños Agricultores adversely affects the ability of such persons, and thus of SNF, to protect their rights.

47The Commission argues that the third plea is clearly inadmissible, since the argument whereby SNF asks the Court of Justice to amend its own case-law does not enable any error of law on the part of the Court of First Instance to be identified.

Findings of the Court

48The contested order shows that, before the Court of First Instance, SNF invoked, in support of the admissibility of its action, the recent case-law of the Court of Justice, particularly the judgment cited in paragraph 46 of this order.

49The third plea, which is therefore contrary to the argument maintained by SNF before the Court of First Instance and which, moreover, does not formulate any legal criticism of the contested order distinct from the complaints adduced in support of the earlier pleas, must be dismissed as clearly inadmissible.

50It follows from the whole of the above that the appeal by SNF must be dismissed, the pleas raised being in part clearly unfounded and in part clearly inadmissible.

Costs

51Under Article 69(2) of the Rules of Procedure, applicable to the proceedings on appeal by virtue of Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs against SNF and the latter has been unsuccessful in its pleadings, SNF must be ordered to pay the costs.

On those grounds, the Court (Fifth Chamber) hereby orders:

1.The appeal is dismissed.

2.SNF SA is ordered to pay the costs.

Luxembourg, 21 November 2005.

* Language of the case: English.