Legal Updates

Commercial Law – Importation of Cosmetics – Regulatory Law - National Law Obligations – Preliminary Ruling

The case of Roby Profumi Srl v Commune Di Parma [2008] concerned European Community measures on public health. According to Article 7 of Council Directive (EEC) 76/768 on the approximation of the laws of Member States relating to cosmetic products (“the Directive”):

“(1) Member States may not, for reasons related to the requirements laid down in this Directive and the Annexes thereto, refuse, prohibit or restrict the marketing of any cosmetic products which comply with the requirements of this Directive and the Annexes thereto...

(2) They may, however, require that the particulars provided for in Article 6(1)(b), (c), (d) and (f) be expressed at least in their own national or official language or languages; they may also require that the particulars provided for in Article 6(1)(g) be expressed in a language easily understood by the consumer. To that end, the Commission shall adopt a common ingredients nomenclature in accordance with the Article 10 procedure...

(3) Furthermore, a Member State may, for purposes of prompt and appropriate medical treatment in the event of difficulties, require that appropriate and adequate information on substances used in cosmetic products be made available to the competent authority, which shall ensure that that information is used only for the purposes of such treatment... Each Member State shall designate a competent authority and send details thereof to the Commission, which shall publish that information in the Official Journal of the European Communities”.

The applicant company in this case was established under Italian law. It imported and exported cosmetic products within the Community market. On the 9th of October 2000, a local administrative health authority accused the applicant of non-compliance with its domestic law obligations. The obligations required the applicant to notify the domestic authorities of any information relating to imported cosmetic products. As this was not done, the applicant was fined.

The applicant appealed against the fine.

The proceedings were brought before the Supreme Court of Cassation. The applicant submitted that the domestic law should not have been applied on the basis that it was incompatible with Article 28 of the EC Treaty as well as Article 7 of the Directive.

In such circumstances, the domestic court made a referral of the matter in question to the Court of Justice of the European Communities. A preliminary ruling was sought.

The question that had to be decided was whether the provisions of the domestic law were compatible with Article 28 of the EC Treaty and Article 7 of the Directive.

The court held that Article 7 of the Directive did not preclude a national provision which required the importer of cosmetic products to communicate the following to the ministry of health in the interests of prompt and appropriate medical treatment:

§   The name of the business;

§   Its registered office;

§   The registered office of the manufacturing plant; and

§   A full and detailed list of the substances used and the substances contained in those products.

Furthermore, the court was of the opinion that such an obligation to provide information was proportionate to the objective of protecting human health contained in Article 7(3) of the Directive, due to the fact that it ensured that the national authorities had access to detailed information on any particular product.

Please contact us for more information on assessing damages due under termination of a contract at enquiries@rtcoopers.com

Visit http://www.rtcoopers.com/practice_corporatecommercial.php; http://www.rtcoopers.com/practice_pharmaceuticals.php

© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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