Select Committee on European Scrutiny Thirty-Eighth Report






COM(02) 435

Commission Opinion on the European Parliament's amendments to the Council's common position regarding a draft Council Directive amending for the seventh time Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products.

Legal base:

Articles 95, 152(1) and 153(2) EC; co-decision; qualified majority voting


Document originated:

26 July 2002

Deposited in Parliament:

28 August 2002


Trade and Industry

Basis of consideration:

EM of 30 September 2002

Previous Committee Report:

None; but see HC 152-xvi (2001-02) (30 January 2002)

To be discussed in Council:

See paragraph 22.9 below

Committee's assessment:

Legally and politically important

Committee's decision:





    1. Council Directive 76/768/EC[41] seeks to protect public health by laying down rules governing the contents, labelling, and conditions for use of cosmetic products within the Community. In response to growing animal welfare concerns, an earlier amendment would have introduced a ban on the marketing of such products if they contained ingredients (or combinations of ingredients) which had been tested on animals. However, as a result of doubts which had arisen in the meantime over the drafting of the proposed ban, and its compatibility with the rules of the World Trade Organisation (WTO), the Commission proposed in April 2000 that the intended marketing prohibition should be rescinded, but that instead:

    • the performance of tests on animals on the territory of the Member States should be prohibited so far as finished cosmetic products are concerned; and

    • in the case of ingredients (where suitable alternative tests are not yet available), tests on animals should be prohibited once an alternative method had been scientifically validated, but that, even if such a method had not been agreed, the proposed prohibition should come into force after three years (or five years, if there has still been insufficient progress in developing satisfactory methods to replace animal testing).

    1. The Commission recognised that these prohibitions would not apply to imported products, but it said that, once methods not involving animals had been validated within the Community, it would make efforts within the OECD and in bilateral negotiation to secure their international acceptance.
    2. At the European Parliament's first reading of the proposal on 3 April 2001, it sought to reinstate the marketing ban which had raised the question of WTO compatibility. This was unacceptable to the Council, and the Internal Market, Consumers and Tourism Council on 26 November 2001 subsequently reached political agreement on an amended text which would introduce:

    • a marketing ban for finished cosmetic products which have been subject to animal testing, if an alternative testing method has been accepted and published by the Organisation for Economic Cooperation and Development (OECD);

    • a marketing ban within the Community for cosmetic products containing ingredients which have been subject to animal testing where there is an alternative method which has been accepted and published by OECD;

    • a ban on the carrying out of animal tests on finished cosmetic products within the Community; and

    • a ban on the carrying out of animal tests on cosmetic ingredients within the Community where such tests can be replaced by one or more of the alternative tests listed elsewhere in Community legislation.

    1. This text was adopted by the Council as a Common Position on 14 February 2002, and is supported by the Commission.
    2. The current document

    3. This document sets out the Commission's reaction to the further amendments to the Common Position proposed by the European Parliament at its second reading on 11 June 2002. In particular, the latter would entail:

    • an immediate ban on the testing of finished cosmetic products on animals;

    • a ban on testing ingredients (or combinations of ingredients) on animals, as soon as an alternative method has been established by the Commission following endorsement of its validity by the European Centre for the Validation of Alternative Methods (ECVAM), and in any case from 31 December 2004, but with the possibility of very limited exceptions;

    • a total ban on the marketing of cosmetics, the ingredients of which have been tested on animals, where satisfactory methods exist to replace existing methods (or, where these are not yet available, methods which reduce the number of animals used, or reduce the suffering caused, and which are scientifically validated by ECVAM as offering an equivalent level of protection for the consumer).

    1. The Commission has, however, rejected the re-introduction of a cut-off date for a Community ban on the testing of ingredients, and it has also rejected the re-introduction of a marketing ban, citing the earlier concerns that this would not be in conformity with WTO rules, and would thus be open to challenge.
    2. The Government's view

    3. In her Explanatory Memorandum of 30 September 2002, the Parliamentary Under-Secretary of State for Competition, Consumers and Markets at the Department of Trade and Industry (Miss Melanie Johnson) says that the Parliament's proposal for a test ban is in line with the UK's own voluntary ban on testing cosmetics and their ingredients. However, its position on a marketing ban remains at odds with that taken by the Council in its Common Position text, which provides for such a ban only when alternative tests, internationally validated through OECD, are available. She adds that the UK supports the Council's position, which it regards as much more defensible in WTO terms, in that the European Parliament's text would continue to leave the Community exposed to a challenge.
    4. However, she also considers that the Parliament's amendment represents a significant improvement on its first reading text, notably because it recognises for the first time that the introduction of a marketing ban needs to be linked to the existence of validated alternative tests, allows for a moratorium for the entry into force of the marketing ban for set periods of time, and proposes derogations for certain specific tests where the development of animal alternatives is at an embryonic stage. In view of this, she suggests that there may be a possibility for finding a compromise between the Council and Parliament positions at the conciliation stage, and she says that the UK will continue to work towards persuading other Member States and the Parliament of the need to reach a mutually satisfactory and WTO-compliant solution.
    5. As regards timing, the Minister says that, under the conciliation phase of the co-decision procedure, an informal trialogue took place on 3 September, and that, whilst there was no movement on either side, the Presidency remains optimistic that both sides will be able to find a compromise. She adds that the formal Conciliation Committee met for the first time on 7 October, and is expected to last for three months.
    6. Conclusion

    7. Over the last couple of years, we have exhaustively examined the various attempts to arrive at an acceptable outcome on this vexed issue, which has, among other things, been the subject both of a Special Report to the House on 30 January 2002 and of a debate in European Standing Committee C on 13 March 2002. We have therefore noted with interest the position taken by the European Parliament at its second reading, and the reactions to this of the Commission and the Government. In particular, we note that, although the Parliament's approach here is still somewhat at odds with that taken by the Council and the Commission, the Government believes there may be some scope for compromise during the conciliation process, which has recently begun. We therefore think it right to draw this development to the attention of the House.


41  OJ No. L 262, 27.9.76, p.169. Back

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