Court of Justice, 5 April 2005

SUPPLEMENTS - Opinion of Advocated General in Case relating to Directive 2002/46 on Food Supplements

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 5 April 2005

Joined Cases: C-154/04: The Queen, Alliance for Natural Health, Nutri-Link Ltd v Secretary of State for Health and C-155/04: The Queen, National Association of Health Stores, Health Food Manufacturers Ltd v Secretary of State for Health and National Assembly for Wales

[The following is the Introduction and Conclusion from the Opinion. For the Full Opinion, see: http://curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79949594C19040154&doc=T&ouvert=T&seance=CONCL]

(Reference for a preliminary ruling from the High Court of Justice of England and Wales )

(Approximation of laws – Food supplements – Directive 2002/46/EC – Ban on marketing of products which do not comply with the directive – Validity – Legal basis – Article 95 EC – Compliance with Articles 28 EC and 30 EC, and with Regulation No 3285/94 – Principles of subsidiarity, proportionality and equal treatment – Right to property – Freedom to carry on an economic activity – Duty to state reasons)

I – Introduction

1. These references by the High Court of Justice of England and Wales for a preliminary ruling concern the validity of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (hereinafter ‘the Directive' or ‘Directive 2002/46'). More specifically they concern Articles 3, 4(1) and 15(b) of the Directive.

2. The main features of these provisions are that only food supplements in conformity with the Directive may be marketed in the Community, that is to say, inter alia, that only vitamins and minerals listed in the annexes to the Directive may be used and that from 1 August 2005 trade in non-compliant products is prohibited.

3. As I will explain later on, these provisions cannot be dealt with in isolation.

4. Furthermore, it is not the first time the Court has had to deal with questions of the appropriate legal basis, the principles of subsidiarity, proportionality, equal treatment and the fundamental rights protected by the European Convention of Human Rights, more specifically the right to property and/or the right to carry on an economic activity. The Court has dealt with similar questions in its BAT judgment (3) and in its judgments in Swedish Match and Arnold André. (4) The line of reasoning to be followed in the present cases can be deduced from those judgments.

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IV – Conclusion

111. On the basis of the foregoing considerations, I propose that the Court should reply as follows to the questions submitted by the High Court of Justice of England and Wales :

Examination of the provisions of Directive 2002/46/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to food supplements has disclosed that 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.