Directive on Food Supplements - Report Example

When the European Commission implemented its directive on food supplements, which resulted to the prohibition of marketing of product not abiding by the Directives of the EC law, The Alliance for Natural Health and Nutri-Link Limited, comprised of organization of manufacturers across Europe which also include ‘wholesalers, distributors, retailers and consumers of food supplements, and a small specialist distributor and retailer of food supplements in the United Kingdom, the claimants for these particular cases, C-154/04 and C-155/041 challenged the validity and the legal basis of the said directives.2 The manufacturers invoked the principles of subsidiarity, proportionality, right to property and the right to conduct economic activity under Articles 28 and 30 EC and the European Convention Human Rights Protocol, which specify provisions on basic right to property and the right to conduct economic activity freely. The claimants also invoked infraction of Article 253 EC also referred to as the duty to give reasons. Furthermore, the manufacturers of food supplement also challenged Articles 3, 4(1) and 15 (b) of the EC rulings, which state that only food supplements which comply with aforesaid directives may be sold within the European Community and the vitamins and minerals specified under the directives may be utilised. The directive further stated that effective August 1, 2005, products which did not comply with the directives should be prohibited.3 The court has dealt with these issues in the past as for instance in the case of Swedish Match and Arnold Andre4 and has made its decisions based on the judgments brought forth on that particular case. The EC Directives define ‘food supplements’ as products or items whose purpose is to supplement the daily diet, foodstuffs which contain concentrated nutrients or materials having nutritional or physiological results. These supplements are either marketed in isolation or come in dosage forms, which include capsules, tablets or pills. One of the disputed directives state that only ‘vitamins and minerals’ specified ‘in the forms listed in Annex I and in the forms listed in Annex II maybe used for the manufacture of food supplement5. The court riling and the EC directives likewise invoked treaties signed by the member states of the EC. The Directive provided in Article 15 also affirmed that ‘Member States shall bring into the force of laws’ and other aforesaid stipulations needed to abide by the Directive6. The manufacturers of health foods asked the courts to commence proceedings on their claim that the stipulations specified in Articles 3 and 4 (1) and paragraph (b) of Article 15 of the Directive as contestable and the August 1 prohibitions imposed on the manufacturers do not conform to the EC law and should therefore be deemed null and void. The Queens Bench Division of the High Court of Justice of England and Wales heard resumed with proceedings while the court restricted the scope of the case to Articles 3, 4(1) and 15 (b) specified in the directives. The court’s legal basis during the case proceedings was specified in Article 95 EC but the claimants argue that this could not be utilized as the foundation of the rulings or the directives as these do not improve the conditions that prevail in a free market economy. The claimants contend that the prohibition, which aims to protect the consumers and the welfare of the public, becomes inappropriate and only shows abuse of authority because according the EC Article 152 (4, c), the community does not have the authority to imposed universal and harmonized legal procedures and regulations on public health. The manufacturers claim that Article 95 is an incorrect invocation of the EC law and asserted that the stipulations of the community is an infraction of the principles of ‘free movements of goods’ within the boundaries of the community. The court countered that the aim of the Directives is to enhance the prevailing situations for the proper movement of the internal market by abolishing disparity in national legislation with regards food supplement. The court judgment found in paragraph 60 asserted that the claimant could not use Article 95 of the EC law as a legal argument as it is purported to abolish the obstacles to the free movement of goods. It should be considered that market for food supplement products is increasingly becoming more popular and lucrative business. However, these products are also regulated the territories of the member states by national legislations which thwart free and liberal movements. This generates unequal conditions for free market competition and thus the importance of community directives on these particular products could not be discounted.7 The court has illustrated and asserted that national legislations that lay down the regulations for the free movement of products are responsible for the lack of harmony on systems and ground rules within the community.8 However, the claimants contend that the provisions they are disputing are contrary to the conventional commercial policy under the EC’s Import Regulation policies (Article 1(2) and24(2)(a))9 thereby claiming that the Community Directives violate these regulation. 10 With regards the principle of proportionality, the main arguments brought forth by the claimants are that the community directives and stipulations are disproportionate as they contend that the Directives and provisions are not crucial as the EC bestowed Member States the discretions (Art 4, 7) to control or ban goods that do conform with the directives. Likewise, the asserted that the prohibition has adverse consequences on the products and the business itself as the nutrients and minerals are crucial to health and diet and do not pose threats to health and well being. The treatment of the issue under the rules laid down by the EC also lacks transparency and equality. However, experts contend that the directives do not violate the principles of proportionality as the provision put forth by the EC under its directives could not occur unless they have considered other existing directives. Member States cannot invoke other existing Articles of the EC law in this issue as Community provisions and legislations must be given broad jurisdiction so as to safeguard public health of the individuals that comprise the community.11 These restrictive regulations do not support the contention that the EC has violated the principle of proportionality as the directives were aimed at the abolition of health risks to the community as a whole. On the one hand, the listing of substances allowed somewhat restricts the freedom of the manufacturers but this is strictly for health reasons, on the other hand this cannot be deem as a violation of the principle of proportionality. The claimants furthermore contend that the disputed community provisions violate the principles of subsidiarity as the directives of the EC intervene with authority and the jurisdiction of the member states in areas deemed sensitive such as health, economic and social institutions.12However, some countries take the contrary contentions. Article 5 of the EC law specifies the principle of subsidiarity, states that in areas and issues ‘not falling within its exclusive competence, the Community is to take action only’ if the objectives of the action put forth ‘cannot be sufficiently achieved by the member states’ the actions can be achieved more effectively if the Community takes up the proposed actions instead. Thus, the claimants argue if the directive deemed the actions of the EC to prohibit food supplements as actions that cannot be sufficiently achieved by the member states. Yet, the cases and claims on these directives only go on to show that the objective cannot be achieved at the community level as evident on the plethora of complaint against the Commission and the cases filed against courts with regard the issue.13 The principle of equal treatment has also been invoked by the claimants stating that it is unfair to specify or include particular food supplements on the positive list brought forward by the EC as the substances did not go through a process of additional tests or examination but on the other hand impose extremely restrictive measures and requirements if a manufacturer seeks inclusion to the list.14 This principle of non-discrimination contend that the equality of treatment necessitates similar conditions cannot be treated disparately unless of course such treatment can be justified in an objective method. However, the substances specified and included in the list had gone through testing and examination before being included on the list as well as undergone strict scientific evaluation. The fault of the authorities here come in if manufacturers have not been informed that tests like the one mentioned were conducted by the EC. Yet these directives are not considered discriminatory as the evaluation of the substances were not done in a discriminatory manner. However, the transparency of the procedure in conducting the evaluation in that it could avoid ‘doubts’ in its with regards its process of evaluation. The transparent procedure can also avoid discrimination in the evaluation of the substances. Hence the utilization of the positive list by the EC does not entail breach of the equal treatment principle. On the issue of fundamental rights, the claimants argued that the disputed stipulations violate their fundamental freedom. The claimants invoked Article 8 of the European Convention on Human Rights and Fundamental Freedoms and the right to property stipulated in the First Protocol of the Article 1. The claimants likewise invoked the right to conduct business and trade freely as well as claimed violations of the consumer’s rights as the Directives limit their alternative actions. These principles are the most vital provisions under the community law and which the court also gives full considerations. Although not absolute, these rights must be regarded with consideration. Restriction could be impinged on these rights only when the objectives protect the interests of the community. Unjust and intolerable intervention on the rights could mean weakening the essence of these rights. Article 4(1) of the directives, which utilized lists of products limit the freedom of the manufacturers to practice their profession or trade. However, it has already been asserted that the purpose of the positive list is to protect the health and the interests as well as safeguard the consumers and the individuals in member states, which comprise the community (Article 95(3) EC, Art 8(2). However, the process which the EC utilized to conduct evaluation in order to identify which substances would comprise the list violates the principles of proportionality as the process did not guarantee that doubts and question with regards legality and objectivity of the process would not arise. The administration of the process of evaluation becomes questionable as consider legal procedural requirements. This has adverse implications on other manufacturers, as it is not apparent if the list asserts that those substances not included in the list were of substandard quality and will consequently affect their trade or the producers’ ability to conduct business more effectively. This, for me, is an example of a breach of freedom to carry on with one’s trade and business dealings as the directives could affect the ‘delisted’ products’ market value. Claimants in this case also invoked Article 253 EC, the duty to provide reasons with regard the principle of subsidiarity. The statement of reasons must be apparent in illustrating the reasoning of the authorities which implemented a disputed policy in order to provide the persons concerned to determine the logic and reasoning behind the aforesaid policy as well as bestow the Court the ability to efficiently implement judicial review. 15The reasoning behind the directives implemented by the EC as aforementioned is to protect the health of the public as well as eliminate barriers in trade within the Community level. These barriers were the consequences of concerns with regards protection of the public well being, welfare and health. The EC took into consideration instructions specified in EC statutes specifically articles 152 (1) and 95(3) for them to fully consider high quality protection measures on public health in their actions and policies. This is the reasoning behind the positive list and hence, after the Community legislators considered objectively which measure could protect the public, they have opted to come up with a positive list. The application of reasoning is apparent in these policies and methods.16 However, if the Directives have at least some questionable aspects or components it failed to take into careful consideration, it is more just and equitable to doubt its validity. BIBLIOGRAPHY Armin von Bogdandy & Jürgen Bast, The Vertical Order of Competences, in Principles of European Constitutional Law 65 Barber, N.W., Subsidiarity in the Draft Constitution, 11 European review of public law (ERPL) 197 (2005). Bermann, G.A., Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Columbia Law Review 344 (1998) Case C_210/03 Swedish Match [2004] ECR I_0000 and Case C_434/02 Case C_210/03 Swedish Match [2004] ECR I_0000, paragraph 59 Case C_491/01 British American Tobacco (BAT) (Investment) and Imperial Cases C-154/04 and C-155/04, Alliance for Natural Health, para. 102, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=CELEX:62004J0154:EN:HTML. Craig P, Competence: Clarity, Containment and Consideration, 29 European Law Review 324 (2004) Davies, G., Subsidiarity: The wrong Idea, in the wrong Place, at the wrong Time, 43 Common Market Law Review (CML Rev.) 63 (2006) EU Report, Subsidiarity and Proportionality in Spatial Planning: Activities in the European Union - Final Report. London: Communities and Local Government Publications, (1999) Grainne de Búrca, Reappraising Subsidiarity’s Significance after Amsterdam, Harvard Jean Monnet Working Paper, 7/99 Paul Craig and Grainne De Burca, EU Law, Text, Cases and Materials, 3rd ed., OUP, (2003) Regulation (EC) No 3285/94 of 22 December 1994 on the common rules for imports and repealing Regulation (EC) No 518/94 (OJ 1994 L 349, p. 53). Ritzer, AuthorC., & Linhart, K, . How to Sharpen a Dull Sword – The Principle of. Subsidiarity and its Control. Vol. 7, , (2006) p.1-12 Tobacco [2002] ECR I_11453. Read More