Judgment_paragraph 3 · Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission of the European Communities (C-352/98 P)

3In paragraphs 1 to 5 of the contested judgment, the Court of First Instance set out the legislative background in the following terms:1 Pursuant to Article 4 of Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (OJ 1976 L 262, p. 169; hereinafter “the Cosmetics Directive”), as amended in particular by Council Directive 93/35/EEC of 14 June 1993 (OJ 1993 L 151, p. 32), the Member States were required to prohibit the marketing, beyond the limits and outside the conditions laid down, of cosmetic products containing any of the substances specified in the “List of substances which cosmetic products must not contain” (Annex II to the Directive) or the “List of substances which cosmetic products must not contain except subject to the restrictions and conditions laid down” (Annex III, Part 1).2 Article 9 of the Cosmetics Directive sets up a Committee on the adaptation to technical progress of the directives on the removal of technical barriers to trade in the cosmetic products sector (hereinafter “the Adaptation Committee“), consisting of representatives of the Member States, with a representative of the Commission as chairman.3 Commission Decision 78/45/EEC of 19 December 1977 (OJ 1978 L 13, p. 24) established a Scientific Committee on Cosmetology (hereinafter ”the Scientific Committee“) attached to the Commission. Under Article 2 of that decision, the Committee's task is to give the Commission an opinion on any problem of a scientific or technical nature in the field of cosmetic products and particularly on substances used in the preparation of cosmetic products and on the conditions of use of these products. The decision also provides that the members of the Scientific Committee are to be appointed by the Commission from among ”highly qualified leading scientific figures with competence in the field [of cosmetic products]” (Article 4); that the representatives of the Commission departments concerned are to attend the meetings of the Committee (Article 8(2)); that the Commission may also invite “leading figures with special qualifications in the subjects under study” to attend those meetings (Article 8(3)); and that the Scientific Committee may also form working parties which are to meet when convened by the Commission (Articles 7 and 8).4 Article 8(2) of the Cosmetics Directive provides that the amendments necessary for adapting Annex II to technical progress are to be adopted in accordance with the procedure laid down in Article 10.5 That procedure comprises the following stages:— the Adaptation Committee is convened by its chairman;— the representative of the Commission submits a draft of the measures to be adopted;— the Adaptation Committee delivers an opinion on the draft, to be adopted by a qualified majority vote, in which the chairman does not take part;— where the proposed measures are in accordance with the opinion of the Committee, they are adopted by the Commission;— where the proposed measures are not in accordance with the opinion of the Committee, or if no opinion is adopted, the Commission must without delay propose to the Council — which acts by a qualified majority — the measures to be adopted; if, however, within three months of the proposal being submitted to it, the Council has not acted, the proposed measures are to be adopted by the Commission.’