Dr Rath Health Foundation Newsletter - Health policy

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Wed, 13 Apr 2005 09:50:38 +0000

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Newsletter - Health policy

 

 

Newsletter

 

Health policy

Legal Challenge to the EU Food Supplements Directive

 

On April 5, 2005 Advocate General Geelhoed of the European Court of

Justice gave his opinion in the cases brought before the European

Court by the Alliance for Natural Health and others (the claimants)

challenging the validity of European Directive 2002/46/EC - commonly

known as the Food Supplements Directive.

 

In simple terms, the main challenges to the Directive by the claimants

can be summarized as follows:

 

1.

 

Was the Directive drafted on the correct legal basis?

2.

 

Does the Directive comply with the principles of subsidiarity

(i.e. does it only seek to provide regulations that cannot be achieved

by Member States themselves)?

3.

 

Does the Directive infringe the principle of proportionality

(i.e. are its effects proportionate to the identified problem or are

they unnecessarily prohibitive)?

4.

 

Does the Directive provide equal treatment for all parties

affected by its regulations?

5.

 

Does the Directive contravene fundamental human rights?

 

The Advocate General's opinions on these points of law are as follows:

 

1.

 

Legal Basis: " In my view, it is beyond doubt that the conditions

are met. "

2.

 

Subsidiarity: Since the objective of the Directive is to

eliminate barriers to trade in food supplements within the Community,

the Advocate General argues that this can only be achieved with a

European Directive. He therefore confirms that the Directive complies

with the principles of subsidiarity.

3.

 

Proportionality: Whilst making the point that the objective of

the Directive may have been achieved by less restrictive measures than

curtailing the use of certain vitamin and minerals and prescribing the

only acceptable forms of those permitted, that doesn't make the

Directive invalid.

 

In fact, the Advocate General supports the positive list

approach, saying: " I also wish to state at this juncture that the

choice of a system of positive lists is as such appropriate. "

 

However, he does conclude that the Commission has seriously

failed in its duty to design such a far-reaching measure with all due

care. Consequently the Advocate General's opinion on proportionality is:

 

" ... the Directive infringes the principle of proportionality,

because basic principles of Community law, such as the requirements of

legal protection, of legal certainty and of sound administration have

not been properly taken into account. The Directive is therefore invalid. "

4.

 

Equal Treatment: The Advocate General contends that the

Directive is not discriminatory but warns that this does not mean that

it couldn't be applied in a discriminatory manner. For this reason, he

argues, the Directive should provide adequate and transparent

procedures suitable for preventing discrimination and, in his opinion,

it currently does not.

5.

 

Fundamental Human Rights: Provided that the procedural

guarantees mentioned in points 3 and 4 are inserted into the

Directive, then the Advocate General considers that it does not

constitute a breach of fundamental human rights.

 

All in all, the Advocate General rejects most of the claimant's

arguments, but does agree that the Directive falls short of compliance

with the principles of proportionality. The important points to note

from his opinion are these:

*

 

The Advocate General supports the need for the Directive

and the need to have the so-called positive lists that restrict the

use of certain vitamins and minerals. He doesn't suggest throwing out

the Directive altogether, only re-drafting it so that it complies with

good legal practice.

*

 

The Advocate General's views are non-binding. The European

Court will hand down its judgement on the matter, in due course,

probably in June 2005. However, it is worth noting that the Court

follows the opinion of the Advocate General in the majority of cases.

*

 

Assuming the Court does follow his opinion, it is likely

that the Directive will be referred back to the Commission to be

re-drafted. The Advocate General made the following remarks in this

context: " It should also be noted that the consequences of declaring

the Directive invalid on these grounds would remain limited. Such a

declaration would not, after all, affect the substantive assessment

made by the Community legislature which led to the selection of a

restrictive system with positive lists for marketing nutrients

enriched with minerals or vitamins. A declaration of invalidity would,

however, compel the Community legislature to take better account in

such a system of the interests of private parties and to provide for

the necessary guarantees for their protection. As the Directive only

requires the Member States to prohibit trade in products which do not

appear on the positive lists as from 1 August 2005 at the latest, the

practical consequences of a declaration of invalidity will be limited

if the necessary improvements and amendments to the text of the

Directive are adopted quickly. "

In other words, the Directive is badly drafted, but can be

fixed.

 

So, what happens on August 1, 2005? That will depend on the Court's

judgement, the date on which it is given and the speed at which the

European Commission respond. Our best guess right now is that this

challenge may have bought some extra time and that the Food

Supplements Directive may become less restrictive as a result, but

will still be enacted in principally the same format as it exists now.

However, the issue of annulment may be more pronounced than it might

at first appear in the Advocate General's Opinion, and the European

Court could well decide to annul the entire directive.

 

Whatever the outcome, it is clear that the availability of vitamin and

mineral supplements and information about the positive health benefits

of these natural remedies will continue to be restricted throughout

most countries in the European Union and may yet become more

restricted still.

 

The need for us all to continue to campaign against these restrictions

via participation in initiatives such as the Foundation's EU

Referendum campaign and anti-Codex activities is ever more real with

each passing day. We must continue to push forward with positive

demands for the enactment of European legislation that guarantees our

right of free choice to use natural remedies and to receive

information about the health benefits of vitamins, minerals and other

natural substances for this and all future generations. People's

health and lives depend upon it.

 

(Dr. Rath Health Foundation)

 

 

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