Today’s Victory in the
EU Court of Justice
Will It Help Us at
Codex?
It all depends...
By Suzanne Harris,
J.D.
journalist
Copyright
©
2005 The Law Loft
April 5, 2005
This morning the very first thing I found on the internet was the
announcement that at 8:30 a.m. this morning in Luxembourg, the European
Court of Justice’s Advocate General Leendert Geelhoed had issued an
advisory non-binding opinion concerning the all important EU food
supplements directive.
Obviously this was important but what did it mean? Since I’m a
journalist and not a practicing attorney let alone an EU lawyer, what
follows are my impressions with a focus on the window of opportunity
that may be opening before us for political action and not an attempt at
analysis of the fine points of EU law, so here goes:
Apparently, the Advocate General found as follows:
Ÿ
That the
European Union (as distinguished from the individual states that make up
the EU) has the power under the treaties that currently form the
founding documents of the EU (and thus serve as EU’s constitution for
now) has the power to write and enforce a directive on food supplements
(dietary supplements) as a proper exercise of its powers to harmonize
the economic market within the EU.
Ÿ
The idea
of a positive list of nutrients that can be traded within the EU is not
invalid per se. Which is just another way of saying that the EU
could have created a valid positive list.
Ÿ
However,
the way it was done here is “seriously deficient” “I must
conclude the [EU legislature in enacting the directive as put forth by
the European Commission] has seriously failed in its duty to design such
a far-reaching measure with all due care,” said the Advocate General.
Ÿ
Deficiencies in the way it was done include lack of
proportionality [ that’s like saying they used a sledge hammer instead
of a laser], and because the principles of sound administration, legal
protection, and legal certainty were not taken into account. As the
Advocate General put it “In short, this procedure, in so far as it may
exist and in so far as it may deserve this title, has the transparency
of a black box.” [ A stinging choice of language that echoes his
comments at the oral hearing.]
So what does this all
mean for Europeans? For Americans? At Codex?
That’s a hard one and we certainly don’t mean to suggest in what follows
that we are experts on EU law or procedure, but we do know how
Codex works, so here goes:
For Europeans:
The advisory opinion is neither binding nor final. A final opinion
issued by judges is due in June or July. Most press reportage so far has
focused on the fact that in 4 out of 5 cases, the judges follow the
advisory opinion, that is in effect adopt it. So the advisory opinion is
therefore likely to be adopted.
We think there is another reason to guess that it may be adopted either
in whole or in part in the actual opinion to follow and that is - that
the European Community signaled at the Codex Committee meeting on
Nutrition and Foods for Special Dietary Uses last fall, that it was
willing to accept a guideline from that body that included natural
as well as synthetic substances. To us that suggested that the EC
had already concluded that it could not justify on a scientific basis
the decision contained in the directive to exclude natural substances
from the positive list. So, we think the court will ultimately follow
suit and declare the positive list invalid insofar as it excludes
natural substances.
If
the court follows the
advisory opinion in another particular, that is the suggestion that the
directive, as is, is invalid and throws the whole directive in its
current form out, that will create a window of opportunity inside the
countries of the European Union for aggressive lobbying on behalf of
dietary supplements at the national level and at the EU level before the
next directive is written and adopted.
For Americans:
As we have said many times before, what happens inside the EU affects us
for a variety of reasons. One is because the EU exercises a heavy
influence on the content of Codex standards and guidelines and those
standards and guidelines take on legal significance within the framework
of WTO agreements.
Yet another reason what happens inside the EU is important to us is the
continuing effort by both the USA and the EU to harmonize their market
rules to a single standard and/or to compatible and interchangeable
standards so that a product accepted once is accepted everywhere. This
process of harmonization occurs in a variety of contexts not just within
the WTO.
So, Americans are theoretically better off if the current EU directive
is replaced by something more palatable and more compatible with DSHEA.
Whatever they come up with is not going to be wonderful or as freedom
oriented as current US law but when you are dealing with a series of
processes designed to harmonize our laws to theirs, a less harmful
directive in EU represents important progress. It is better for us if
US bureaucrats and later legislators try to harmonize to something from
the EU that is just plain bad as opposed to something that is
unbelievably hideous.
Americans and especially the small and medium sized supplement
manufactures, health food stores, vitamin retailers, chiropractors and
other health care providers should be working now to achieve a unified
strategy that encompasses much more than just letter writing. It is
suicidal just to sit back and wait to see what happens in Europe. We,
the USA, are half the force that stands behind the current USA-EU
harmonization efforts.
At Codex:
Currently, Codex is the chosen vehicle for harmonization of food laws,
that is, the most visible effort to make US and EU laws and regulations
alike or compatible occurs within the context of Codex. That is so for
the obvious reasons that Codex standards and guidelines have legal
effect at the WTO and using Codex as the harmonization vehicle drags
other countries not just in Europe along with the harmonization process
at the same time.
The EU exerts a huge force at Codex for several reasons. One is the mere
fact that it’s got 25 votes. When those votes are scattered among
differing positions of differing countries inside the EU that influence
is less strong than when they are united within a single bloc vote.
Under current Codex rules adopted in 2003, where a directive, like the
food supplements directive, unites the EU into a single position, the EC
files a notice of assumption of competency and wields the vote of every
single member present at a meeting as a bloc.
If
the European Court of
Justice were to adopt the advisory opinion before July 4th
or 5th and if that opinion included a declaration
that the directive is invalid, then the bloc would break apart.
Would breaking the
bloc, end the threat at Codex?
Not necessarily. The EU member states hold meetings in advance of Codex
meetings such as the upcoming Codex Commission meeting in July to see
whether or not they can achieve agreement among themselves on a
single position even where no directive binds them formally into a
single position.
This latter point, the fact that EU member states pre-meetings can set
policy for the member states as a whole and turn the EU members’ votes
into a de facto bloc, means that it’s essential for European
grassroots groups and industry lobbyists to redouble their efforts to
persuade their own legislatures and to persuade the European parliament
not to adopt a draconian directive again. If the bloc formation
effect can either be avoided altogether or shifted to a more health
freedom friendly position, we will be in a better position at the Codex
Alimentarius Commission meeting in July.
What to do now:
European grassroots organizations should co-ordinate their efforts with
the industrial groups that are plaintiffs in the EU lawsuit. It’s always
important for grassroots groups to understand that their interests are
not identical with the interest of any industrial group. But here the
compatibility is great enough to warrant working together albeit with
caution.
American small and medium sized supplement companies may see a temporary
reprieve here from the stupidity of thinking that large transnational
supplements interests will always serve their best interest. It looks
like a second chance for Americans to get it right.
‘Instant experts’ should step back and stop trying to tell others what
to do. Some of the opinions circulating on the internet are inaccurate
and awful almost beyond belief. We’ve been studying the WTO-Codex
problem for over 10 years and we are still learning. This is a complex
subject that cannot be mastered in a few weeks no matter how smart you
are.
Grassroots groups and industry should seek out real expertise and
attempt to unite behind a single strategy or at least complementary
strategies right now. The best we as Americans can hope for from
the EU is a window of opportunity to get our own house in order and act
in a smart, multifaceted concerted strategy. We are in a better place
today than we were yesterday but the war is far from won.
Copyright
©
2005 The Law Loft. All rights reserved. No extract, portion or part of
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