European Federation for Cosmetic Ingredients, R (on the application of) v Secretary of State for Business, Innovation and Skills & Ors

Declaratory relief may be granted in public law proceedings where a genuine legal issue arises on a proper factual basis and there is a cogent public or individual interest in resolving it. That remains so where the issue concerns whether conduct would constitute a criminal offence, particularly where resolving the issue without proceedings would require a person to risk prosecution. A reference under Article 267(2) TFEU is appropriate where interpretation of harmonised European Union legislation is necessary to determine the claim and the issue raises questions of context, language, purpose or legislative development suitable for determination by the Court of Justice.

The claimant, a trade association representing manufacturers of cosmetic ingredients, sought declarations concerning Article 18(1)(b) of Regulation (EC) No. 1223/2009 on cosmetic products. The provision prohibits placing on the Community market cosmetic products containing ingredients tested on animals in order to meet the requirements of that Regulation.

The ingredients in issue had been tested outside the European Union to satisfy third-country regulatory requirements. The parties disputed whether their use in products marketed within the European Union would contravene Article 18(1)(b) and constitute a criminal offence under the domestic Regulations. The central questions were whether declaratory relief was appropriate and whether the interpretation issue should be referred to the Court of Justice.

1. Declaratory relief. The court accepted that declaratory proceedings generally require a genuine dispute and a proper factual context. Courts are cautious about advisory declarations divorced from live facts, and particularly cautious where the declaration concerns criminal liability. Nevertheless, a declaration may be granted where there is a genuine issue of law and a cogent public or individual interest in resolving it. The claimant had such an interest because the alternative route to clarification would require a manufacturer to market products containing the ingredients and risk prosecution. The dispute was supported by evidence concerning actual third-country testing and involved competing legal arguments. The issue was therefore suitable for determination.
2. Reference to the Court of Justice. Interpretation of Article 18(1)(b) was necessary to enable the court to give judgment. The legislation was intended to harmonise the rules governing cosmetic products throughout the European Union, making a definitive interpretation by the Court of Justice desirable. Applying the guidance in CILFIT Srl v Ministero dello Sanita [1982] ECR 3415, the court considered relevant the equal authenticity of different language versions, the distinctive terminology of European Union law, and the need to interpret the provision in its legislative context, in light of its objectives and state of evolution.
3. The court accordingly referred questions concerning whether Article 18(1)(b) prohibits marketing products containing ingredients tested outside the European Union to satisfy third-country requirements, and whether the answer depends on safety-assessment data, the nature of the third-country requirements, foreseeability of European Union marketing, or another factor.