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Luxembourg - The European Court of Justice heard oral arguments
yesterday in a case brought by the Alliance for Natural Health, the British
Health Food Manufacturers Association and the National Association of Health
Food Stores, to overturn the prohibitive provisions of the European food
supplements directive.
The directive, passed in 2002 for the purpose of harmonizing European laws
on health products, is set to require expensive research to prove the
innocence of numerous vitamin and mineral ingredients in supplements, for
products to be allowed to stay on the market. Many current supplements will
not make the grade and are expected to vanish some time after August 2005,
the date by which supplements must conform to the new rules.
On the same day in London's Westminster Hall, the House of Commons debated
an opposition motion asking Tony Blair to re-negotiate the directive in the
coming semester of British presidency of the EU. While the government
strenuously opposed the motion, conservative politicians as well as some in
the ranks of the government's Labour party pointed out that the directive
will be bad for both consumers and the smaller, more innovative producers of
supplements. The government was unable to provide evidence of any harm that
must be averted from consumers and said they got "the best possible deal" in
the negotiations leading up to the passage of the directive.
Some of the British Members of Parliament point out that a prohibition of
supplements is really without sense because consumers will buy what they
will over the internet. The issue is a political hot patato. "Why do people
think less and less of Europe", said one of the MPs, continuing "it is
precisely because of issues such as this one. Government thinks it's a small
matter, but people are concerned about their access to natural products".
However despite a good debate, the opposition motion was defeated and
replaced by a government sponsored motion that lauds the government's
handling of the matter.
Earlier in the day, these same concerns had reverberated around a court room
in the European Court of Justice, where a challenge against the British laws
to put the directive into effect was heard. At one point, Advocate General
Geelhoed described the procedure for adding nutrients to the "positive list"
of those allowed by the directive to be "as transparent as a black box". The
Advocate General is expected to file an opinion on 5 April, while the final
decision of the court is expected to come some time in June, just before the
July/August deadline of enforcement for the directive.
The Alliance for Natural Health, one of the parties to the action,
describes the hearing as follows:
EUROPEAN COURT OF JUSTICE ADVOCATE GENERAL DESCRIBES
VITAMIN AND MINERAL BAN "AS TRANSPARENT AS A BLACK BOX"
UK GOVERNMENT DECIDES NOT TO ATTEND COURT HEARING TO MAKE ITS OBJECTIONS TO
THE CHALLENGE
The Alliance for Natural Health today presented its oral submission to the
European Court of Justice in Luxembourg in its landmark case challenging the
ban in the EU Food Supplements Directive on 75% of vitamin and mineral forms
currently sold in the EU market.
Opposing oral submissions were made by the European Commission, the Council
of Ministers, the European Parliament and only one EU Member State, Greece.
UK Government does not present its objections to
the challenge.
Interestingly, neither the UK government nor Portugal attended to present
oral arguments despite having filed Written Observations in the case. This
means that none of the major EU countries felt the need to oppose the ANH's
application for a declaration that the ban in the Directive was unlawful.
David Hinde Solicitor and ANH Legal Director said:
"Given the vigour with which the UK government resisted this application at
the Judicial Review stage, it was extraordinary it did not now think the
issue sufficiently important to warrant being represented at the ECJ to make
oral submissions. The question inevitably arises whether this signifies a
change of attitude on their part and a retreat from their previously bullish
position about the legality of the Directive."
Paul Lasok QC, a world leading expert on EU law, representing the ANH opened
the proceedings and systematically undermined the legal and scientific basis
of the Directive, highlighting contradictions between various arguments put
forward by the key bodies involved in developing the Directive, namely the
European Commission, the Council of Ministers and the European Parliament.
When asked by Judge Lenaerts as to the origin of the positive list which
appeared to have been derived from an old list produced by the European
Commission, and so omitted a vast array of nutrients that can normally be
found in food, Mr Lasok responded:
"The list was put together without adding, without subtracting and without
thinking."
Advocate General Geelhoed, the senior judge at today's hearing, appeared to
be baffled by the procedure for adding nutrients to the positive list, which
he described:
"As transparent as a black box."
Dr Robert Verkerk, executive director of the ANH said after the hearing:
"It was remarkable that the vast majority of points that we had gone to
great length to show the Court were not countered in any effective way by
the opposing parties. The Commission, the Council and the Parliament were
not able to give any adequate scientific explanations for why so many forms
of vitamins and minerals that naturally occur in foods could be banned
across the EU."
Final judgement expected in June 2005
The Advocate General announced that he would deliver his opinion on 5 April
2005, while the Court is expected to give its judgment in June, shortly
before the ban would otherwise be set to come into effect on 1 August 2005.
For further information contact:
Alliance for Natural Health
www.alliance-natural-health.org
David C. Hinde, Solicitor, Legal Director
Tel: 0207 738 1640
Mobile: 07958 548 186
E-mail: davidh@alliance-natural-health.org
Dr Robert Verkerk, Executive Director
Tel: 01252 371 275
Mobile: 0771 484 7225
E-mail: robv@alliance-natural-health.org
And here some more details about the discussion in
Parliament, provided by Paul Taylor:
The Hansard transcript of yesterday's debate in the British House of Commons
is enclosed.
Unfortunately, and not at all surprisingly, the opposition motion.....
"That this House regrets the passing of the Food Supplements Regulations
(England) 2003; mandates the Government to use the UK Presidency to
renegotiate the Food Supplements Directive with the European Union; and
indicates a willingness to repeal the regulations if the renegotiation does
not reach a satisfactory compromise to protect the interests of consumers
and manufacturers in the United Kingdom."
.....was roundly defeated, by 283 votes to 189.
In its place, the Government put an amended motion.....
"That this House congratulates the Government on successfully negotiating a
final text of the Directive that works in the interests of UK consumers and
industry by ensuring that products are safe, properly labelled, and can be
freely traded across EU member states; notes that UK legislation gives
maximum flexibility that ensures that as many products as possible can
continue to be marketed after the Directive comes into effect on 1st August,
and that all of the vitamins and most of the minerals currently on sale in
the UK will still be available; agrees with the Government's assessment that
re-opening discussion on the Directive at this point runs the risk of making
its effects more restrictive and is thus against UK interests; and welcomes
the Government's continued commitment to working with the industry on
assessing the safety of individual food supplements, and to facilitating
negotiations with the European Food Standards Agency."
.....that was passed by 279 votes to 172.
Interested in the details of the debate? Here is the
transcript in MS Word (.doc) format for
download.
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