Opinion of Advocate General Campos Sánchez-Bordona delivered on 24 March 2022.#Fédération des entreprises de la beauté v Agence nationale de sécurité du médicament et des produits de santé (ANSM).#Request for a preliminary ruling from the Conseil d'État (France).#Reference for a preliminary ruling – Approximation of laws – Cosmetic products – Regulation (EC) No 1223/2009 – Article 27 – Safeguard clause – Article 27(1) – Scope – Provisional national safeguard measures – General measure – Application to a category of cosmetic products containing the same substance – Individual measure – Application to an identified cosmetic product – Provisional national measure imposing certain labelling requirements on a category of leave-on products containing phenoxyethanol.#Case C-4/21.

1.

Regulation (EC) No 1223/2009 ( 2 ) provides as a general rule that Member States must not refuse, prohibit or restrict the making available on the market of cosmetic products which comply with its requirements.

2.

However, that regulation contains a ‘safeguard clause’ whereby the authorities of a Member State may adopt provisional measures (such as withdrawal or limitations on availability) in respect of one or more cosmetic products in the event of a serious risk to human health.

3.

Where the safeguard clause is activated, the European Commission must indicate as soon as possible whether the provisional measure is justified or not, after consulting, where appropriate, the Scientific Committee on Consumer Safety (‘SCCS’). ( 3 )

4.

In France, the Agence nationale de sécurité du médicament et des produits de santé (National Agency for the Safety of Medicinal Products and Health Products; ‘ANSM’) adopted a provisional measure laying down certain requirements in connection with the labelling of products containing phenoxyethanol ( 4 ) which are intended for children of three years or less. These requirements differed from those contained in Regulation No 1223/2009, which itself adheres to the requirements recommended in an SCCS opinion. ( 5 )

5.

The Fédération des entreprises de la beauté (Federation of Beauty Companies; ‘FEBEA’) made an application for the annulment of the ANSM’s decision to the Conseil d’Etat (Council of State, France), which has submitted to the Court of Justice a request for a preliminary ruling on the interpretation of Regulation No 1223/2009.

6.

Recitals 3 and 4 of Regulation No 1223/2009 are worded as follows:

…’.

7.

Article 1 (‘Scope and objective’) states:

‘This Regulation establishes rules to be complied with by any cosmetic product made available on the market, in order to ensure the functioning of the internal market and a high level of protection of human health.’

8.

Article 2 (‘Definitions’) provides:

‘1.   For the purposes of this Regulation, the following definitions shall apply:

…’

9.

Article 3 (‘Safety’) provides:

‘A cosmetic product made available on the market shall be safe for human health when used under normal or reasonably foreseeable conditions of use …’

10.

Article 10 (‘Safety assessment’) provides:

‘1.   In order to demonstrate that a cosmetic product complies with Article 3, the responsible person shall, prior to placing a cosmetic product on the market, ensure that the cosmetic product has undergone a safety assessment on the basis of the relevant information and that a cosmetic product safety report is set up in accordance with Annex I.

…’

11.

Article 11 (‘Product information file’) states:

‘…

2.   The product information file shall contain the following information and data which shall be updated as necessary:

…’

12.

Article 13 (‘Notification’) reads:

‘1.   Prior to placing the cosmetic product on the market the responsible person shall submit, by electronic means, the following information to the Commission:

…’

13.

Article 22 (‘In-market control’) states:

‘Member States shall monitor compliance with this Regulation via in-market controls of the cosmetic products made available on the market. They shall perform appropriate checks of cosmetic products and checks on the economic operators on an adequate scale, through the product information file and, where appropriate, physical and laboratory checks on the basis of adequate samples.

…’

14.

Article 23 (‘Communication of serious undesirable effects’) states:

‘1.   In the event of serious undesirable effects, the responsible person and distributors shall without delay notify the following to the competent authority of the Member State where the serious undesirable effect occurred:

…’

15.

Article 24 (‘Information on substances’) provides:

‘In the event of serious doubt regarding the safety of any substance contained in cosmetic products, the competent authority of a Member State in which a product containing such a substance is made available on the market may by reasoned request require the responsible person to submit a list of all cosmetic products for which he is responsible and which contain this substance. …’

16.

Article 25 (‘Non-compliance by the responsible person’) reads:

‘1.   … competent authorities shall require the responsible person to take all appropriate measures … where there is non-compliance with any of the following:

…

5.   The competent authority shall take all appropriate measures to prohibit or restrict the making available on the market of the cosmetic product or to withdraw the product from the market or to recall it in the following cases:

…’

17.

Article 27 (‘Safeguard clause’) states:

‘1.   In the case of products meeting the requirements listed in Article 25(1), where a competent authority ascertains, or has reasonable grounds for concern, that a cosmetic product or products made available on the market present or could present a serious risk to human health, it shall take all appropriate provisional measures in order to ensure that the product or products concerned are withdrawn, recalled or their availability is otherwise restricted.

2.   The competent authority shall immediately communicate to the Commission and the competent authorities of the other Member States the measures taken and any supporting data.

For the purposes of the first subparagraph, the information exchange system provided for in Article 12(1) of Directive 2001/95/EC shall be used.

Article 12(2), (3) and (4) of Directive 2001/95/EC shall apply.

3.   The Commission shall determine, as soon as possible, whether the provisional measures referred to in paragraph 1 are justified or not. For that purpose it shall, whenever possible, consult the interested parties, the Member States and the SCCS.

4.   Where the provisional measures are justified, Article 31(1) shall apply.

5.   Where the provisional measures are not justified the Commission shall inform the Member States thereof and the competent authority concerned shall repeal the provisional measures in question.’

18.

According to Article 28 (‘Good administrative practices’):

‘1.   Any decision taken pursuant to Articles 25 and 27 shall state the exact grounds on which it is based. It shall be notified by the competent authority without delay to the responsible person, who shall at the same time be informed of the remedies available to him under the law of the Member State concerned and of the time limits to which remedies are subject.

…’

19.

Article 31 (‘Amendment of the Annexes’) states:

‘1.   Where there is a potential risk to human health, arising from the use of substances in cosmetic products, which needs to be addressed on a Community-wide basis, the Commission may, after consulting the SCCS, amend Annexes II to VI accordingly. …

…’

20.

In September 2012, the Commission received from the ANSM a risk assessment stating that the maximum authorised concentration (of 1%) of phenoxyethanol for use as a preservative should be reduced to 0.4% in cosmetic products for children aged three years or less, and that phenoxyethanol was not to be used in cosmetic products intended for the nappy area. ( 6 )

21.

On 6 October 2016, the SCCS issued an opinion in which it considered the use of phenoxyethanol as a preservative with a maximum concentration of 1.0% to be safe, regardless of the target age group.

22.

In December 2017, the ANSM convened a temporary specialised scientific committee which endorsed the proposal which that authority had made in September 2012.

23.

On 13 March 2019, the ANSM applied the safeguard clause provided for in Article 27 of Regulation No 1223/2009 by laying down specific conditions for making available on the market in France leave-on cosmetic products containing phenoxyethanol.

24.

In the contested decision, the ANSM laid down a temporary obligation to indicate on the labelling of ‘leave-on cosmetic products’ ( 7 ) containing phenoxyethanol – with the exception of deodorants, styling products and make-up – that they are not suitable for use on the buttocks of children aged three years or less. ( 8 )

25.

On 10 May 2019, the ANSM communicated the contested decision to the Commission.

26.

On 27 November 2019, a Commission official ( 9 ) sent the Director-General of the ANSM an e-mail (‘letter from the head of unit’) stating, inter alia, ( 10 ) that the provisional measure, since it affected a category of products rather than a specific product or specific products, did not fall within the scope of Article 27 of Regulation No 1223/2009.

27.

On 6 December 2019, the Director-General of the ANSM expressed his disagreement with the analysis set out in the letter from the head of unit and informed the head of unit that he would be maintaining the contested decision on a temporary basis until such time as the Commission adopted a measure in accordance with Article 27 of Regulation No 1223/2009.

28.

On 8 April 2019, the FEBEA made an application to the Conseil d’Etat (Council of State) seeking the annulment of the contested decision.

29.

In the FEBEA’s view, the provisional measure was in breach of Regulation No 1223/2009 because, despite the fact that the conditions for the application of Article 27 thereof were not present, that measure imposed a labelling requirement not provided for in the regulation. It therefore infringed Article 9 thereof on the free movement of cosmetic products.

30.

In order to dispose of the aforementioned application, the Conseil d’État (Council of State) considers it essential to establish:

31.

In order to dispel its doubts, the Conseil d’État (Council of State) referred to the Court of Justice for a preliminary ruling six questions of which I shall, at the Court’s direction, address the first three:

32.

The request for a preliminary ruling was registered at the Court on 4 January 2021.

33.

Written observations have been lodged by the FEBEA, the French and Greek Governments, and the Commission. All of the parties except for the Greek Government attended the hearing held on 20 January 2022.

34.

The first question, concerning the legal nature of the letter from the head of unit (that is to say, whether it is a preparatory act or a final decision), must be viewed in the context of Article 27(3) of Regulation No 1223/2009.

35.

Considered from that point of view, the question is whether, for the purposes of that article, the letter from the head of unit may be construed as the Commission’s official response or reply to the ANSM’s provisional measure.

36.

All of those taking part in these preliminary ruling proceedings (in particular, the two principal interlocutors, namely, the ANSM, represented by the French Government, and the Commission) agree that the letter from the head of unit is not in the nature of a Commission decision.

37.

If the ANSM had regarded that letter as a final Commission decision, the French Government could have brought an action for its annulment under Article 263 TFEU. Not only did it fail to do so, but instead, on 6 December 2019, the ANSM informed the Commission that it was maintaining the provisional measure until such time as that institution adopted a decision under Article 27(3) of Regulation No 1223/2009.

38.

The Commission, in particular, does not consider that letter to be in the nature of a decision and regards it as being merely a preparatory act. It relies in this regard on a number of arguments with which I agree:

39.

It is clear from the foregoing information that the letter from the head of unit is not equivalent to a decision which the Commission is to adopt under Article 27(3) of Regulation No 1223/2009.

40.

I would recall that, under that provision, the Commission must inform the national authority whether its provisional measure is justified or not. The letter from the head of unit, however, does not expressly state that the contested decision is unjustified. Neither does it require the national authority to repeal the provisional measure, as prescribed by Article 27(5) of Regulation No 1223/2009 in the case where a provisional measure is not justified.

41.

The letter from the head of unit, as I have said, simply suggests that the national authorities should re-examine the provisional measure and, if they consider it appropriate to do so, send new scientific data on the basis of which to review the SCCS’s opinion on phenoxyethanol.

42.

Furthermore, as the French Government notes, since the head of unit does not have the power to take decisions on the Commission’s behalf and his letter does not state the legal basis on which it is adopted, that letter does not satisfy the legal certainty requirement applicable to measures intended to create legal effects. Indeed, the binding force of such a measure derives specifically from a provision of EU law that must be indicated as the legal basis on which the measure is founded. ( 11 )

43.

In short, Article 27(3) of Regulation No 1223/2009 must be interpreted as meaning that a letter such as that from the head of unit, which does not formally make clear to the ANSM whether the provisional measure adopted in accordance with Article 27(1) of that regulation is justified or not, cannot be classified as a final Commission decision.

44.

The second question starts from the (correct) assumption that the letter from the head of unit does not express the Commission’s decision. On that premiss, the referring court’s uncertainty has to do with the powers of the national court called upon to verify the legality of the provisional measure in the action brought before it.

45.

The Conseil d’État (Council of State) wishes to ascertain whether and in what terms it may give a ruling, pending the adoption of a Commission decision on that provisional measure under Article 27(3) of Regulation No 1223/2009.

46.

The answer to the first part of that (twofold) question does not present any difficulties. The guarantee of judicial protection for the persons concerned, at national level, is set out in Article 28 of Regulation No 1223/2009. Under that provision, any decision taken pursuant to Articles 25 and 27 must be notified without delay ‘to the responsible person, who shall at the same time be informed of the remedies available to him under the law of the Member State concerned and of the time limits to which remedies are subject’. ( 12 )

47.

The term ‘remedies’ in Article 28 of Regulation No 1223/2009 thus means that the national court has the power to review a decision to adopt provisional measures which is taken by the authorities of the country concerned under Article 27(1) of that regulation, if that country’s domestic law authorises it to do so.

48.

The second part of the question is focused on a definition of the powers of the national court adjudicating upon the action brought against such provisional measures.

49.

The Court has already ruled in similar proceedings, in which a provision of EU law conferred powers on the national authorities to adopt provisional measures and left the final assessment to the EU institutions.

50.

The judgment in Monsanto and Others ( 13 ) was delivered in the context of Regulation (EC) No 1829/2003, ( 14 ) the scheme of which mirrors that of Regulation No 1223/2009.

51.

Article 34 of Regulation No 1829/2003 provides for the adoption of emergency measures where products authorised by that regulation are likely to constitute a serious risk to human health, animal health or the environment. In such a situation (and in the circumstances provided for in Article 54(1) of Regulation (EC) No 178/2002/EC), ( 15 ) Member States may take interim protective measures which they must immediately communicate to the other Member States and the Commission.

52.

The Court found as follows, in this regard, in the judgment in Monsanto and Others:

53.

To my mind, those considerations can be transposed to the interpretation of Regulation No 1223/2009, Article 27(1) of which allows the competent authority of the Member State to ‘[ascertain], or [have] reasonable grounds for concern, that a cosmetic product or cosmetic products made available on the market present or could present a serious risk to human health’. In such circumstances, that authority may ‘take all appropriate provisional measures in order to ensure that the product or products concerned are withdrawn, recalled or their availability is otherwise restricted’.

54.

Once such a decision has been adopted, the national court before which that decision has been challenged retains full jurisdiction to adjudicate on the action, for as long as the Commission has not taken the decision provided for in Article 27(3) of Regulation No 1223/2009.

55.

If, conversely, the Commission has taken that decision, which is binding on all of the authorities of the Member State concerned until such time as it is annulled by the Court, the dispute before the national court will henceforth be devoid of purpose.

56.

Thus, for as long as the Commission has not taken the decision referred to above, it will be for the national court to assess ( 20 ) whether the authority having adopted the provisional measure complies both with the substantive requirements of Article 27 of Regulation No 1223/2009 and with the procedural requirements laid down in that regulation and, of course, in the applicable national legislation:

57.

In giving its ruling, whether in favour or against, pending the exercise by the Commission of its competence under Article 27(3) of Regulation No 1223/2009, ( 22 ) the national court does not interfere in the exercise of the Commission’s exclusive jurisdiction in this regard:

58.

The Commission’s final decision, as I have already pointed out, is binding on all of the bodies of the Member State for as long as it is not annulled by the Court. Prior intervention by the national court is not therefore incompatible with the subsequent intervention of the Commission.

59.

Contrary to the Commission’s contention, ( 23 ) a national judicial decision annulling a decision to adopt provisional measures does not impede the actions taken by the Commission itself any more than would the withdrawal or repeal of those measures by the competent authority of the Member State on its own initiative.

60.

If the national authority, on its own initiative or in implementation of a court judgment, annuls its decision to adopt a provisional measure, the Commission will no longer have to rule on whether that measure is justified (because the measure will have ceased to exist), but this in no way affects its own powers to assess the risks inherent in using a substance in cosmetic products and to act accordingly.

61.

In short, for as long as the Commission does not exercise its power under Article 27(3) of Regulation No 1223/2009, the national court may annul or maintain in being, to serve the precautionary purpose for which they were introduced, the provisional measures adopted by the national authority.

62.

The referring court wishes to ascertain whether Article 27(1) of Regulation No 1223/2009 permits the adoption of provisional measures in connection with a category of products containing the same substance.

63.

The Commission and the FEBEA choose to answer that question in the negative. That article, they submit, authorises the adoption of provisional measures only in respect of a specific product as it has been commercially exploited, that is to say made available on the market. The national authority may take action only in respect of a product presented on the market under a particular trade mark or trade name.

64.

The French and Greek Governments take issue with that interpretation by recourse to arguments with which, in essence, I agree. I recognise, however, that there are strong arguments in favour of both propositions.

65.

My analysis will look first at the concept of cosmetic product and then turn to the objective pursued by Regulation No 1223/2009. Finally, I shall consider the Commission’s arguments concerning the system for exchanging information with the national authorities.

66.

Article 2(1)(a) of Regulation No 1223/2009 defines ‘cosmetic product’ as ‘any substance or mixture intended to be placed in contact with the external parts of the human body … with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, protecting them, keeping them in good condition or correcting body odours’.

67.

In the words of the Court, that definition ‘is based on three cumulative criteria: (i) the nature of the product in question (substance or mixture); (ii) the part of the human body with which it is intended to be placed in contact; and (iii) the purpose of its use’. ( 24 )

68.

Of those criteria, the one most relevant to this dispute is the first. ( 25 ) The cosmetic product does indeed consist of a substance ( 26 ) or mixture. ( 27 ) The association between the cosmetic product and the substances or mixtures that comprise it is therefore undeniable.

69.

It would be a different matter if the product were presented on the market through extrinsic elements unconnected with its own essence, such as the signs (trade marks) that distinguish it in trade or the name given to it by its manufacturer.

70.

The clear connection between product and substance would therefore, in principle, militate in favour of the proposition put forward by the French and Greek Governments.

71.

It is true, however, that certain provisions of Regulation No 1223/2009 appear at first sight to support the interpretation advocated by the FEBEA and the Commission, inasmuch as they suggest that the product is identified by its name:

72.

In my view, an interpretation of those provisions in relation to Article 27 of Regulation No 1223/2009 does not inevitably have the effect of limiting the scope of the latter to single (that is to say, individual) products as they appear on the market under their distinctive signs or their trade name. I shall endeavour to explain that the purpose of that article, in the context of that regulation, supports the other proposition, first and foremost on the basis of the literal definition of the concept of cosmetic product.

73.

As the Court has held, ‘it follows from a reading of the provisions of Regulation No 1223/2009 as a whole, in particular its Article 1, read in the light of recitals 3 and 4 thereof, that that regulation has as its objective an exhaustive harmonisation of the rules in force in the European Union which is aimed at establishing an internal market for cosmetic products while, at the same time, ensuring a high level of protection for human health’. ( 29 )

74.

In attaining those objectives, ‘Member States shall not … refuse, prohibit or restrict the making available on the market of cosmetic products which comply with the requirements of this Regulation’, ( 30 ) but they are permitted to adopt safeguard measures such as those at issue in this dispute.

75.

The protection of public health, which operates as a limit to the free movement of products, permeates the whole of Regulation No 1223/2009. ( 31 ) A distinction can be drawn between two levels of activity in operation in the regulation:

76.

It is the national authority which discharges the market supervision functions and it must have the information necessary to be able to do so. The responsible persons and distributors must inform it, in particular, of the existence of serious undesirable effects in a cosmetic product (Articles 22 and 23 of Regulation No 1223/2009).

77.

Article 24 of Regulation No 1223/2009 provides that, in the event of serious doubt regarding the safety of any substance contained in a cosmetic product, the authority of the Member State in which that product is made available on the market ‘may … require the responsible person to submit a list of all cosmetic products for which he is responsible and which contain this substance’. ( 33 )

78.

The effect of that provision of Regulation No 1223/2009, of course, is that the national authority is in possession of information not only on a single product but on the ‘list’ of products containing the same substance.

79.

The extent to which that ‘list’ amounts to a ‘group’ or a ‘category’ of products strikes me as being more a matter of semantics than reality. What matters is that the supervision by the national authority, whether ex officio ( 34 ) or by communication from the responsible persons or the distributors, may reveal doubts as to the safety of a substance contained in one or more cosmetic products.

80.

In this way, the national authority will be in a position to identify a collection (be it a list, group or category) of cosmetic products which, inasmuch as their composition includes a particular substance, may adversely affect human health. If this is true for Article 24, it will for the same reason be true for Article 27(1) of Regulation No 1223/2009.

81.

The response mechanisms which Regulation No 1223/2009 makes available to national authorities cater for two different scenarios:

82.

In that second scenario (which is the one of relevance here), the national authority that identifies a serious risk to health in one or more cosmetic products, notwithstanding that these comply with the requirements of Regulation No 1223/2009, is implicitly highlighting a possible anomaly in the regulation itself (in particular, in the annexes thereto). That alleged anomaly thus acquires a Community dimension and the national authority cooperates loyally with the Commission when alerting the latter to its existence.

83.

It follows that the national authority’s intervention may only be temporary, pending confirmation by the Commission that the allegedly inappropriate requirement in Regulation No 1223/2009 remains sound (in which case, the national authority must repeal its unjustified provisional measure) or, conversely, must be changed (in which case, the Commission confirms that the provisional measure was justified and the steps set out in Article 31 of the Regulation itself must be followed).

84.

The rationale informing the cooperation between the national authority and the Commission that is inherent in Regulation No 1223/2009 explains why, if the provisional measures are justified, Article 27(4) refers to Article 31(1), on account of the link to the existence of ‘a potential risk to human health, arising from the use of substances in cosmetic products, which needs to be addressed on a Community-wide basis’. ( 38 )

85.

If all of the foregoing is correct, what the national authority may bring to the Commission’s attention, so that the latter may make a final decision on the matter, is the risk to human health arising from the use of certain substances in cosmetic products. It is therefore more consistent with the purpose of Regulation No 1223/2009 for provisional measures authorised by Article 27(1) thereof to be capable of being extended not only to a single product identified by its trade mark and trade name but also to a number of products ( 39 ) grouped together on the basis of the substance they contain. If those products pose risks to health, it is precisely because they contain that substance.

86.

That interpretation, as I have already said, is consistent with the methodology of the process for reviewing the annexes which the Commission must set in motion, in accordance with Article 31 of Regulation No 1223/2009, if it considers the provisional measure to be justified.

87.

Where that review process has been initiated following action by the national authority which is deemed justified and is aimed at avoiding risks arising from the ‘use of substances in cosmetic products’ (in the plural), ( 40 ) it is reasonable that that authority should have been able to assess the risks associated with a category of products all of which contain the same substance that is allegedly harmful to human health.

88.

Articles 27 and 31 of Regulation No 1223/2009 refer to the cosmetic product, which, as I have recalled, Article 2(1)(a) defines as a substance or mixture. There is, therefore, no reason not to characterise a category of products by the presence of a particular substance in them.

89.

That approach, as I have said, seems to me to be more consistent with attainment of the objectives pursued by the regulation and with its schematic interpretation. The application of a provisional measure to a category of cosmetic products containing elements in common is conducive to the more effective achievement of an appropriate level of protection of human health. In the conflict between the various interests represented in the text of Regulation No 1223/2009, that intention takes precedence.

90.

The foregoing proposition is borne out, in my opinion, by three further arguments:

91.

It is true that a safeguard measure adopted on the basis of the presence of a substance in a category of cosmetic products might affect the free movement of those products more significantly than a safeguard measure applied to a single specific product. The Commission’s concern to avoid a fragmentation of the internal market and to protect the full harmonisation of this sector is therefore legitimate.

92.

However, my proposed interpretation of Article 27(3) of Regulation No 1223/2009 does not disregard the requirements of harmonisation, compliance with which is ensured both by the remedies provided for in Article 28 thereof and, in particular, by the Commission’s power to declare the national measure unjustified, if it is appropriate to do so.

93.

Finally, the safeguard measures available to the national authorities are compatible with the possibility open to the Commission of availing itself of the third subparagraph of Article 31(1) of Regulation No 1223/2009 when it considers there to be ‘imperative grounds of urgency’ in connection with a substance authorised by the annexes to that regulation.

94.

The possibility thus available to the Commission does not, as I have said, exclude initiatives on the part of the national authorities, which are able to identify and respond more quickly to any serious risk to human health represented by a medicine made available on the market in their territory. The added value of the mechanism provided for in Article 27 of the regulation, which supplements the mechanism under Article 31(1), lies in the very fact that it provides those authorities with effective (and immediately enforceable) provisional instruments, while safeguarding the unity of the internal market in cosmetic products, and leaves the final word to the Commission.

95.

The second subparagraph of Article 27(2) of Regulation No 1223/2009 provides that, ‘for the purposes of the first subparagraph, the information exchange system provided for in Article 12(1) of Directive [2001/95] [ ( 44 )] shall be used’.

96.

The Commission observes that the exchange of information through that system (known as ‘RAPEX’) is confined to individual measures for a specific product and is not suited to general measures for one or more categories of products.

97.

In support of that proposition, the Commission cites Implementing Decision (EU) 2019/417, ( 45 ) in particular paragraph 4.4 of Part I of the annex thereto, which states that ‘generally applicable acts adopted at national level and aimed at preventing or restricting the marketing and use of (a) generally described category(ies) of consumer products … should not be notified to the Commission through the RAPEX application’.

98.

That same provision goes on to say, however, that ‘all such national measures that apply to only generally defined categories of products, such as all products in general or all products serving the same purpose – and not to (categories of) products specifically identified by their brand, specific look, producer, trader, model name or number, etc. – are notified to the Commission under Directive (EU) 2015/1535 … [ ( 46 )]’.(

99.

Now, when the ANSM issued the contested decision, which it communicated to the Commission via the RAPEX application, it did not introduce restrictions that were applicable to ‘only generally defined categories of products’ but rather to a precise typology of products specifically identified as containing phenoxyethanol.

100.

In the light of the foregoing, I suggest that the first three questions referred for a preliminary ruling by the Conseil d’État (Council of State, France) be answered as follows: