**Joined Cases C-154/04 and C-155/04**

**The Queen, on the application of Alliance for Natural Health and Others**

**v**

**Secretary of State for Health and National Assembly for Wales**

(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative
Court))

(Approximation of laws – Food supplements – Directive 2002/46/EC – Prohibition on trade in products not complying with the directive – Validity – Legal basis – Article 95 EC – Articles 28 EC and 30 EC – Regulation (EC) No 3285/94 – Principles of subsidiarity, proportionality and equal treatment – Right to property – Freedom to pursue an economic activity – Obligation to state reasons)

Opinion of Advocate General Geelhoed delivered on 5 April 2005

Judgment of the Court (Grand Chamber), 12 July 2005

Summary of the Judgment

1.     *Approximation of laws — Food supplements — Directive 2002/46 — Prohibition on trade in food supplements containing certain
vitamins or certain minerals — Measure aimed at improving the functioning of the internal market — Legal basis — Article 95 EC
— Need to ensure a high level of human health protection*

*(Art. 95 EC; European Parliament and Council Directive 2002/46, Arts 3, 4(1) and 15(b), and Annexes I and II)*

2.     *Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Prohibition, arising from a Community
measure, on marketing food supplements containing certain vitamins or certain minerals — Not permissible — Justification —
Protection of public health — Conditions*

*(Arts 28 EC and 30 EC; European Parliament and Council Directive 2002/46, Arts 3, 4(1), 4(5) and 15(b), and Annexes I and
II)*

3.     *Common commercial policy — Regulation by the Community institutions — Regulation No 3285/94 — Purpose — Liberalisation of
imports from non-member States — Effect on the conditions for placing the imported products on the market — None — Effect*

*(Council Regulation No 3285/94)*

4.     *Approximation of laws — Food supplements — Directive 2002/46 — Harmonisation measures — Prohibition on marketing food supplements
containing certain vitamins or certain minerals — Infringement of the principle of subsidiarity — None*

*(Arts 5, second subpara., EC and 95(3) EC; European Parliament and Council Directive 2002/46, Arts 3, 4(1) and 15(a) and (b))*

5.     *Approximation of laws — Food supplements — Directive 2002/46 — Harmonisation measures — Prohibition on marketing food supplements
containing certain vitamins or certain minerals — Infringement of the principle of equal treatment — None*

*(European Parliament and Council Directive 2002/46, 11th recital, Arts 3, 4(1) and 15(a) and (b), and Annex II)*

6.     *Approximation of laws — Food supplements — Directive 2002/46 — Harmonisation measures — Prohibition on marketing food supplements
containing certain vitamins or certain minerals — Failure to respect the private and family life of consumers — None*

*(Art. 6(2) EU; European Parliament and Council Directive 2002/46, Arts 3, 4(1) and 15(b))*

7.     *Community law — Principles — Fundamental rights –– Right to property –– Freedom to pursue a trade or profession –– Restrictions
–– Prohibition, arising from a Community measure, on marketing food supplements containing certain vitamins or certain minerals
–– Breach of the right to property –– None –– Breach of the right of manufacturers of those products freely to pursue a trade
or profession –– Whether permissible –– Restriction justified by the general interest –– Breach of the principle of proportionality
–– None*

*(European Parliament and Council Directive 2002/46, Arts 3, 4(1) and 15(b))*

1.     When there are obstacles to trade, or it is likely that such obstacles will emerge in the future, because the Member States
have taken, or are about to take, divergent measures with respect to a product or a class of products, which bring about different
levels of protection and thereby prevent the product or products concerned from moving freely within the Community, Article
95 EC authorises the Community legislature to intervene by adopting appropriate measures.

Consequently, Article 95 EC constitutes the only appropriate legal basis for Articles 3, 4(1) and 15(b) of Directive 2002/46
relating to food supplements, owing to the differing national rules to which they were subject before the adoption of the
directive and the inherent risk of their free movement being impeded, which may have a direct impact on the functioning of
the internal market in this field.

Similar provisions must, however, respect both Article 95(3) EC, which explicitly requires that, in achieving harmonisation,
a high level of protection of human health should be guaranteed, and the legal principles referred to in the Treaty or identified
by the case‐law, in particular, the principle of proportionality. Thus, the fact that human health considerations played a
part in the decision to prohibit marketing food supplements containing the vitamins, minerals or other vitamin or mineral
substances which are not included in the lists annexed to that directive, resulting from the combined provisions of Article
3, 4(1) and 15(b) of Directive 2002/46, cannot invalidate the foregoing assessment.

(see paras 31-32, 35, 40, 42)

2.     The provisions of Articles 3, Article 4(1) and 15(b) of Directive 2002/46 relating to food supplements constitute a restriction
on the free movement of goods between Member States for the purposes of Article 28 EC. By prohibiting the marketing in the
Community of food supplements containing vitamins, minerals, or vitamin and mineral substances not included on the lists annexed
to that directive, those provisions are capable of restricting the free movement of food supplements within the Community.
Such a measure, adopted on the basis of considerations related to the protection of human health, can nevertheless be justified,
pursuant to Article 30 EC, provided that it is necessary and proportionate in relation to the objective pursued.

In order to satisfy the requirement of proportionality, the prohibition on marketing products containing substances not included
on the positive lists laid down in the applicable legislation must be accompanied by a procedure designed to allow a given
substance to be added to those lists and the procedure must comply with the general principles of Community law, in particular
the principle of sound administration and legal certainty. Such a procedure must be accessible in the sense that it must be
expressly mentioned in a measure of general application which is binding on the authorities concerned. It must be capable
of being completed within a reasonable time. An application to have a substance included on a list of authorised substances
may be refused by the competent authorities only on the basis of a full assessment of the risk posed to public health by the
substance, established on the basis of the most reliable scientific data available and the most recent results of international
research. If the procedure results in a refusal, the refusal must be open to challenge before the courts.

The procedure referred to in Article 4(5) of Directive 2002/46, which allows a vitamin, a mineral, or a vitamin and mineral
substance to be added to the lists mentioned above, fulfils those conditions.

(see paras 48-51, 72-74, 89)

3.     The objective of Regulation No 3285/94 on the common rules for imports and repealing Regulation No 518/94 is to liberalise
imports of products originating in non-member States. However, it does not aim to liberalise the placing on the market of
those products, which takes place after import. It follows that that regulation is of no relevance for the purpose of assessing
the legality of Community measures whose effect is to prohibit the placing on the market within the Community of products
imported from non-member States which do not satisfy the conditions laid down for such placing on the market for reasons relating
to the protection of human health.

(see paras 95-96)

4.     Articles 3, 4(1) and 15(b) of Directive 2002/46 relating to food supplements do not infringe the principle of subsidiarity
laid down in the second subparagraph of Article 5 EC.

The prohibition, under those provisions, on marketing food supplements which do not comply with Directive 2002/46, supplemented
by the obligation of the Member States under Article 15(a) of the directive to permit trade in food supplements complying
with that directive, has the objective of removing barriers resulting from differences between the national rules on vitamins,
minerals and vitamin or mineral substances authorised or prohibited in the manufacture of food supplements, whilst ensuring,
in accordance with Article 95(3) EC, a high level of human-health protection. To leave Member States the task of regulating
trade in food supplements which do not comply with Directive 2002/46 would perpetuate the uncoordinated development of national
rules and, consequently, obstacles to trade between Member States and distortions of competition so far as those products
are concerned. Thus, the objective pursued by Articles 3, 4(1) and 15(b) of the directive cannot be satisfactorily achieved
by action taken by the Member States alone and requires action to be taken by the Community.

(see paras 105-108)

5.     Articles 3, 4(1) and 15(b) of Directive 2002/46 relating to food supplements do not infringe the principle of equal treatment.

The prohibition, under those provisions, on marketing food supplements containing the vitamin and mineral substances which
are not included on the positive list in Annex II to Directive 2002/46 is based on the fact that the substances had not, at
the time when that directive was adopted, been subject to a scientific evaluation by the competent authorities so as to ensure
their conformity with the criteria of safety and bioavailability referred to in the 11th recital of the preamble to the directive,
unlike the substances which are included in it. That difference in situations therefore permits a difference in treatment,
and an infringement of the principle of equal treatment cannot be successfully pleaded.

(see paras 116, 118-119)

6.     The fact that Articles 3, 4(1) and 15(b) of Directive 2002/46 relating to food supplements may deprive people of the right
to consume food supplements which do not comply with that directive cannot be regarded as amounting to a breach of respect
for their private and family life within the meaning of Article 8 of the European Convention on Human Rights.

(see paras 123-124)

7.     The right to property, and likewise the freedom to pursue an economic activity, form part of the general principles of Community
law. However, those principles are not absolute but must be viewed in relation to their social function. Consequently, the
exercise of the right to property and the freedom to pursue an economic activity may be restricted, provided that any restrictions
in fact correspond to objectives of general interest pursued by the Community and do not constitute in relation to the aim
pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed.

In that respect, the prohibition on marketing and placing on the Community market food supplements which do not comply with
that directive, which arises from the provisions of Articles 3, 4(1) and 15(b) of Directive 2002/46 relating to food supplements,
in no way calls property rights into question. No economic operator can claim a right to property in a market share, even
if it held it at a time before the introduction of a measure affecting the market, since such a market share constitutes only
a momentary economic position exposed to the risks of changing circumstances.

Conversely, that prohibition is capable of restricting the freedom of manufacturers of food supplements to carry on their
business activities. However, in the light of the public interest objective of the protection of human health pursued by the
prohibition, such a restriction cannot be found to constitute a disproportionate impairment of the right to exercise the business
activities of these manufacturers.

(see paras 126-129)


JUDGMENT OF THE COURT (Grand Chamber)

12 July 2005 ([\*](#Footnote*))

(Approximation of laws – Food supplements – Directive 2002/46/EC – Prohibition on trade in products not complying with the directive – Validity – Legal basis – Article 95 EC – Articles 28 EC and 30 EC – Regulation (EC) No 3285/94 – Principles of subsidiarity, proportionality and equal treatment – Right to property – Freedom to pursue an economic activity – Obligation to state reasons)

In Joined Cases C-154/04 and C-155/04,

REFERENCES for a preliminary ruling under Article 234 EC from the High Court of Justice England and Wales, Queen’s Bench Division
(Administrative Court), made by decisions of 17 March 2004, received at the Court on 26 March 2004, in the proceedings

**The Queen,** on the application of:

**Alliance for Natural Health** (C-154/04),

**Nutri-Link Ltd**

v

**Secretary of State for Health**

and

**The Queen,** on the application of:

**National Association of Health Stores** (C-155/04),

**Health Food Manufacturers Ltd**

v

**Secretary of State for Health,**

**National Assembly for Wales,**

THE COURT (Grand Chamber),

composed of V. Skouris, President,  P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts (Rapporteur), Presidents of Chambers,
C. Gulmann, A. La Pergola, J.‐P. Puissochet, R. Schintgen, J. Klučka, U. Lõhmus, E. Levits and A. Ó Caoimh, Judges,

Advocate General: L.A. Geelhoed,

Registrar: K. Sztranc, Administrator,

having regard to the written procedure and further to the hearing on 25 January 2005,

after considering the observations submitted on behalf of:

–       the Alliance for Natural Health and Nutri-Link Ltd, by K.P.E. Lasok QC,  A. Howard and  M. Patchett-Joyce, Barristers,

–       the National Association of Health Stores and Health Food Manufacturers Ltd, by  R. Thompson QC and S. Grodzinski, Barrister,

–       the United Kingdom Government, by M. Bethell, acting as Agent, and C. Lewis, Barrister,

–       the Greek Government, by N. Dafniou and G. Karipsiadis, acting as Agents,

–       the Portuguese Government, by  L. Fernandes, acting as Agent,

–       the European Parliament, by M. Moore and U. Rösslein, acting as Agents,

–       the Council of the European Union, by E. Karlsson and E. Finnegan, acting as Agents,

–       the Commission of the European Communities,  by J.‐P. Keppenne and M. Shotter, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 5 April 2005,

gives the following

**Judgment**

1       These references for a preliminary ruling concern the validity of Articles 3, 4(1) and 15(b) 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 (OJ 2002 L 183, p. 51).

2       The references were made following applications brought (i) on 10 October 2003 by the National Association of Health Stores
and Health Food Manufacturers Ltd (Case C‐155/04) and (ii) on 13 October 2003 by the Alliance for Natural Health and Nutri-Link
Ltd (Case C‐154/04) seeking leave for judicial review of the Food Supplements (England) Regulations 2003 and the Food Supplements
(Wales) Regulations 2003 (‘the Food Supplements Regulations’). Those two sets of regulations transpose Directive 2002/46 into
the law of England and Wales.

**Law**

3       Directive 2002/46, adopted on the basis of Article 95 EC, ‘concerns food supplements marketed as foodstuffs and presented
as such’, as is clear from Article 1(1) of the directive.

4       According to the first recital of the preamble to the directive, ‘[t]here is an increasing number of products marketed in
the Community as foods containing concentrated sources of nutrients and presented for supplementing the intake of those nutrients
from the normal diet’.

5       The second recital of the preamble to the directive states:

‘Those products are regulated in Member States by differing national rules that may impede their free movement, create unequal
conditions of competition, and thus have a direct impact on the functioning of the internal market. It is therefore necessary
to adopt Community rules on those products marketed as foodstuffs.’

6       The 5th recital states that ‘[i]n order to ensure a high level of protection for consumers and facilitate their choice, the
products that will be put on to the market must be safe and bear adequate and appropriate labelling’.

7       It is clear from the 6th, 7th and 8th recitals to the directive that, given the wide range of nutrients and other ingredients
which might be present in food supplements, including, but not limited to, vitamins, minerals, amino acids, essential fatty
acids, fibre and various plants and herbal extracts, the Community legislature gave priority to laying down measures for vitamins
and minerals used as ingredients in food supplements. It is stated that other Community rules for nutrients other than vitamins
and minerals, and for other substances with a nutritional or physiological effect used as ingredients in food supplements,
are to be adopted at a later stage once adequate and appropriate scientific data are available and that until those Community
rules are adopted national rules concerning those nutrients and substances can continue to be applied in compliance with the
provisions of the EC Treaty.

8       The 9th, 10th, 11th and 12th recitals to Directive 2002/46 are worded as follows:

‘(9)      Only vitamins and minerals normally found in, and consumed as part of, the diet should be allowed to be present in food supplements
although this does not mean that their presence therein is necessary. Controversy as to the identity of those nutrients that
could potentially arise should be avoided. Therefore, it is appropriate to establish a positive list of those vitamins and
minerals.

(10)      There is a wide range of vitamin preparations and mineral substances used in the manufacture of food supplements currently
marketed in some Member States that have not been evaluated by the Scientific Committee on Food and consequently are not included
in the positive lists. These should be submitted to the European Food Safety Authority for urgent evaluation, as soon as appropriate
files are presented by the interested parties.

(11)      The chemical substances used as sources of vitamins and minerals in the manufacture of food supplements should be safe and
also be available to be used by the body. For this reason, a positive list of those substances should also be established.
Such substances as have been approved by the Scientific Committee on Food, on the basis of the said criteria, for use in the
manufacture of foods intended for infants and young children and other foods for particular nutritional uses can also be used
in the manufacture of food supplements.

(12)      In order to keep up with scientific and technological developments it is important to revise the lists promptly, when necessary.
Such revisions would be implementing measures of a technical nature and their adoption should be entrusted to the Commission
in order to simplify and expedite the procedure.’

9       For the purposes of Directive 2002/46 ‘food supplements’ is defined by Article 2(a) of the directive as ‘foodstuffs the purpose
of which is to supplement the normal diet and which are concentrated sources of nutrients or other substances with a nutritional
or physiological effect, alone or in combination, marketed in dose form, namely forms such as capsules, pastilles, tablets,
pills and other similar forms, sachets of powder, ampoules of liquids, drop dispensing bottles, and other similar forms of
liquids and powders designed to be taken in measured small unit quantities’.

10     Article 2(b) of the directive defines ‘nutrients’ as vitamins and minerals.

11     Under Article 3 of Directive 2002/46, Member States are to ensure that food supplements may be marketed within the Community
only if they comply with the rules laid down in the directive.

12     Article 4 of Directive 2002/46 provides:

‘1.      Only vitamins and minerals listed in Annex I, in the forms listed in Annex II, may be used for the manufacture of food supplements,
subject to paragraph 6.

...

5.      Modifications to the lists referred to in paragraph 1 shall be adopted in accordance with the procedure referred to in Article
13(2).

6.      By way of derogation from paragraph 1 and until 31 December 2009, Member States may allow in their territory the use of vitamins
and minerals not listed in Annex I, or in forms not listed in Annex II, provided that:

(a)      the substance in question is used in one or more food supplements marketed in the Community on the date of entry into force
of this Directive,

(b)      the European Food Safety Authority has not given an unfavourable opinion in respect of the use of that substance, or its use
in that form, in the manufacture of food supplements, on the basis of a dossier supporting use of the substance in question
to be submitted to the Commission by the Member State not later than 12 July 2005.

7.      Notwithstanding paragraph 6, Member States may, in compliance with the rules of the Treaty, continue to apply existing national
restrictions or bans on trade in food supplements containing vitamins and minerals not included in the list in Annex I or
in the forms not listed in Annex II.

... ’

13     Article 11 of Directive 2002/46 provides:

‘1.      Without prejudice to Article 4(7), Member States shall not, for reasons related to their composition, manufacturing specifications,
presentation or labelling, prohibit or restrict trade in products referred to in Article 1 which comply with this Directive
and, where appropriate, with Community acts adopted in implementation of this Directive.

2.      Without prejudice to the Treaty, in particular Articles 28 and 30 thereof, paragraph 1 shall not affect national provisions
which are applicable in the absence of Community acts adopted under this Directive’.

14     Article 13 of the Directive is worded as follows:

‘1.      The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health instituted by Regulation (EC)
No 178/2002 ... (hereinafter referred to as “the Committee”).

2.      Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions
of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3.      The Committee shall adopt its rules of procedure.’

15     Article 14 of Directive 2002/46 provides:

‘Provisions that may have an effect upon public health shall be adopted after consultation with the European Food Safety Authority.’

16     Article 15 of the directive provides:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive
by 31 July 2003. They shall forthwith inform the Commission thereof.

Those laws, regulations and administrative provisions shall be applied in such a way as to:

(a)      permit trade in products complying with this Directive, from 1 August 2003 at the latest;

(b)      prohibit trade in products which do not comply with the Directive, from 1 August 2005 at the latest.

...’

17     Pursuant to Article 16, Directive 2002/46 entered into force on 12 July 2002, the day of its publication in the *Official Journal of the European Communities*.

18     Directive 2002/46 contains two annexes drawing up lists concerning the ‘[v]itamins and minerals which may be used in the manufacture
of food supplements’ and ‘[v]itamin and mineral substances which may be used in the manufacture of food supplements’ (‘the
positive lists’).

**The main actions and the question referred to the Court**

19     The claimants in Case C‐154/04 are a Europe-wide association of manufacturers, wholesalers, distributors, retailers and consumers
of food supplements and a small specialist distributor and retailer of food supplements in the United Kingdom.

20     The claimants in Case C‐155/04 are two trade associations representing around 580 companies, the majority of which are small
firms which distribute dietary products in the United Kingdom.

21     All the claimants in the main actions maintain that the provisions of Article 3 in conjunction with those of Article 4(1)
and Article 15(b) of Directive 2002/46 are incompatible with Community law and must consequently be declared invalid. Those
provisions, which prohibit with effect from 1 August 2005 the marketing of foodstuffs which do not comply with the directive,
were transposed into national law by the Food Supplements Regulations.

22     The High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), granted permission to apply
for judicial review and decided to stay the proceedings and to refer to the Court the following question, cast in identical
terms in both these cases:

‘Are Articles 3, 4(1), and 15(b) of Directive 200[2]/46/EC invalid by reason of:

(a)      the inadequacy of Article 95 EC as a legal basis;

(b)      infringement of (i) Articles 28 EC and 30 EC and/or (ii) Articles 1(2) and 24(2)(a) of Council 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));

(c)      infringement of the principle of subsidiarity;

(d)      infringement of the principle of proportionality;

(e)      infringement of the principle of equal treatment;

(f)      infringement of Article 6(2) [EU], read in the light of Article 8 and Article 1 of the First Protocol to the European Convention
on Human Rights, and of the fundamental right to property and/or the right to carry on an economic activity;

(g)      infringement of Article 253 EC and/or the duty to give reasons?’

23     By order of the President of the Court of 7 May 2004, the national court’s applications to apply to the present cases the
accelerated procedure provided for in Article 104a of the Rules of Procedure were dismissed. By the same order, Cases C‐154/04
and C‐155/04 were joined for the purposes of the written and oral procedure and judgment.

**The question referred to the Court**

*Part (a) of the question*

24     By part (a) of its question, the national court is asking whether Articles 3, 4(1) and 15(b) of Directive 2002/46 are invalid
on the ground that Article 95 EC does not afford them an appropriate legal basis.

25     The claimants in Case C‐154/04 submit that the prohibition arising from those provisions of Directive 2002/46 does not contribute
to improving the conditions for the establishment and functioning of the internal market. On the assumption that the reason
for the prohibition lies in public-health considerations, reliance on Article 95 EC constitutes a misuse of powers since,
under Article 152(4)(c) EC, the Community has no power to harmonise national legislation on human health.

26     The claimants in Case C‐155/04 claim, first, that Articles 3, 4(1) and 15(b) of Directive 2002/46 are contrary to the principle
of the free movement of goods within the Community, a principle with which the Community legislature must comply when exercising
its powers under Article 95 EC (see Case C‐51/93 *Meyhui* [1994] ECR I‐3879, paragraphs 10 and 11). Second, the provisions entail direct and immediate restrictions on trade with third
countries and should thus have been adopted on the basis of Article 133 EC.

27     In that regard, it must be borne in mind that, as provided for by Article 95(1) EC, the Council of the European Union, acting
in accordance with the procedure referred to in Article 251 EC and after consulting the European Economic and Social Committee,
is to adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in
Member States which have as their object the establishment and functioning of the internal market.

28     By virtue of the Court’s case-law, while a mere finding of disparities between national rules is not sufficient to justify
having recourse to Article 95 EC (see, to that effect, Case C‐376/98 *Germany* v *Parliament and Council* [2000] ECR  I‐8419, paragraph 84), it is, however, otherwise where there are differences between the laws, regulations or
administrative provisions of the Member States which are such as to obstruct the fundamental freedoms and thus have a direct
effect on the functioning of the internal market (Case C‐434/02 *Arnold André* [2004] ECR I‐0000, paragraph 30, and Case C‐210/03 *Swedish Match* [2004] ECR I‐0000, paragraph 29; see also, to that effect, *Germany* v *Parliament and Council*, paragraph 95, and Case C‐491/01 *British American Tobacco (Investments) and Imperial Tobacco* [2002] ECR I‐11453, paragraph 60).

29     It also follows from the Court’s case-law that, although recourse to Article 95 EC as a legal basis is possible if the aim
is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws, the emergence
of such obstacles must be likely and the measure in question must be designed to prevent them (*Arnold André*, paragraph 31, and *Swedish Match*, paragraph 30; see also, to that effect, Case C‐350/92 *Spain* v *Council* [1995] ECR I‐1985, paragraph 35, *Germany* v *Parliament and Council*, paragraph 86, Case C‐377/98 *Netherlands* v *Parliament and Council* [2001] ECR I‐7079, paragraph 15, and *British American Tobacco (Investments) and Imperial Tobacco*, paragraph 61).

30     The Court has also held that, provided that the conditions for recourse to Article 95 EC as a legal basis are fulfilled, the
Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is
a decisive factor in the choices to be made (*British American Tobacco (Investments) and Imperial Tobacco*, paragraph 62, *Arnold André*, paragraph 32, and *Swedish Match*, paragraph 31).

31     It must be noted in that regard that the first subparagraph of Article 152(1) EC provides that a high level of human health
protection is to be ensured in the definition and implementation of all Community policies and activities, and that Article
95(3) EC explicitly requires that, in achieving harmonisation, a high level of protection of human health should be guaranteed
(*British American Tobacco (Investments) and Imperial Tobacco*, paragraph 62, *Arnold André*, paragraph 33, and *Swedish Match*, paragraph 32).

32     It follows from the foregoing that when there are obstacles to trade, or it is likely that such obstacles will emerge in the
future, because the Member States have taken, or are about to take, divergent measures with respect to a product or a class
of products, which bring about different levels of protection and thereby prevent the product or products concerned from moving
freely within the Community, Article 95 EC authorises the Community legislature to intervene by adopting appropriate measures,
in compliance with Article 95(3) EC and with the legal principles mentioned in the Treaty or identified in the case-law, in
particular the principle of proportionality (*Arnold André*, paragraph 34, and *Swedish Match*, paragraph 33).

33     Depending on the circumstances, those appropriate measures may consist in requiring all the Member States to authorise the
marketing of the product or products concerned, subjecting such an obligation of authorisation to certain conditions, or even
provisionally or definitively prohibiting the marketing of a product or products (*Arnold André*, paragraph 35, and *Swedish Match*, paragraph 34).

34     It is in the light of those principles that it is necessary to ascertain whether the conditions for recourse to Article 95
EC as legal basis were satisfied in the case of the provisions to which the national court’s question refers.

35     According to the second recital to Directive 2002/46, food supplements were regulated, before the directive was adopted, by
differing national rules liable to impede their free movement and thus have a direct impact on the functioning of the internal
market.

36     As the European Parliament and the Council have noted in their written observations, those statements are borne out by the
fact that prior to the adoption of Directive 2002/46 a number of cases were brought before the Court which related to situations
in which traders had encountered obstacles when marketing in a Member State other than their State of establishment food supplements
lawfully marketed in the latter State.

37     Furthermore, at point 1 of the Explanatory Memorandum to the proposal for a directive of the European Parliament and of the
Council on the approximation of the laws of the Member States relating to food supplements (COM(2000) 222 final, presented
by the Commission on 10 May 2000 (OJ 2000 C 311 E, p. 207)), it is stated, as the Greek Government, the Council and the Commission
have pointed out in their written observations, that before that proposal was presented the Commission services had received
‘a substantial number of complaints from economic operators’ on account of the differences between national rules which ‘the
application of the principle of mutual recognition did not succeed in overcoming’.

38     In those circumstances action on the part of the Community legislature on the basis of Article 95 EC was justified in relation
to food supplements.

39     It follows from the foregoing that Articles 3, 4(1) and 15(b) of Directive 2002/46, which give rise to a prohibition, with
effect from 1 August 2005 at the latest, on marketing food supplements which do not comply with the directive, could be adopted
on the basis of Article 95 EC.

40     In view of the cases cited at paragraphs 30 and 31 of this judgment, the fact that human health considerations played a part
in the formulation of the provisions concerned cannot invalidate the foregoing assessment.

41     As regards the argument of the claimants in Case C‐155/04 that Articles 3, 4(1) and 15(b) of Directive 2002/46 should be based
on Article 133 EC, it must be stated that the fact that those provisions may incidentally affect international trade in food
supplements does not make it possible validly to challenge the fact that the primary objective of those provisions is to further
the removal of differences between national rules which may affect the functioning of the internal market in that area (see,
to that effect, *British American Tobacco (Investments) and Imperial Tobacco*, paragraph 96).

42     Consequently, Article 95 EC constitutes the only appropriate legal basis for Articles 3, 4(1) and 15(b) of Directive 2002/46.

43     It follows that those provisions are not invalid by reason of lack of an appropriate legal basis.

*Part (b) of the question*

44     By part (b) of its question, the national court is asking whether Articles 3, 4(1) and 15(b) of Directive 2002/46 are invalid
by reason of infringement of Articles 28 EC and 30 EC and/or infringement of Articles 1(2) and 24(2)(a) of Regulation No
3285/94.

45     In both the present cases the claimants in the main actions submit that the prohibition arising from the provisions with which
the question referred to the Court is concerned constitutes a restriction on intra-Community and international trade in food
supplements hitherto lawfully put into circulation.

46     The claimants in Case C‐155/04 add that neither Article 30 EC nor Article 24(2)(a) of Regulation No 3285/94 can justify the
sudden introduction of a restriction on trade in products whose safety had never before been put in doubt.

 Articles 28 EC and 30 EC

47     It must be observed that by virtue of settled case-law the prohibition of quantitative restrictions and of all measures having
equivalent effect, laid down in Article 28 EC, applies not only to national measures but also to measures adopted by the Community
institutions (see Case 15/83 *Denkavit Nederland* [1984] ECR 2171, paragraph 15, *Meyhui,* paragraph 11, Case C‐114/96 *Kieffer and Thill* [1997] ECR I‐3629, paragraph 27, and *Arnold André*, paragraph 57).

48     Nevertheless, as Article 30 EC provides, Article 28 EC does not preclude prohibitions or restrictions justified, inter alia,
on grounds of protection of the health and life of humans (see *Arnold André*, paragraph 58, and *Swedish Match*, paragraph 60).

49     The provisions of Article 3 in conjunction with those of Article 4(1) and 15(b) of Directive 2002/46 constitute a restriction
covered by Article 28 EC. By prohibiting the marketing in the Community of food supplements containing vitamins and minerals,
or vitamin and mineral substances, not included on the positive lists, those provisions are capable of restricting the free
movement of food supplements within the Community.

50     As the Advocate General has stated at point 40 of his Opinion, it is clear from the preamble to Directive 2002/46, and in
particular from the 5th, 9th, 10th and 11th recitals thereto, that the Community legislature gives, as the rationale for the
prohibition, considerations related to the protection of human health.

51     It remains necessary to ascertain whether the measure is necessary and proportionate in relation to the objective of protecting
human health.

52     With regard to judicial review of those conditions, the Community legislature must be allowed a broad discretion in an area
such as that involved in the present case, which entails political, economic and social choices on its part, and in which
it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that area can be affected
only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking
to pursue (see *British American Tobacco (Investments) and Imperial Tobacco*, paragraph 123).

53     In the present cases, the claimants in the main actions submit that the prohibition at issue is neither necessary nor proportionate
in relation to the objective put forward.

54     First, they deny that the prohibition is necessary. They maintain to that end that Articles 4(7) and 11(2) of Directive 2002/46
give the Member States the power to restrict trade in food supplements which do not comply with the directive. A Community
prohibition is thus superfluous.

55     First of all, it must be stated that Article 4(7) of Directive 2002/46 – as is clear from its actual wording and from the
legislative history of the directive – is intrinsically linked to Article 4(6) of the directive, as was confirmed at the hearing
by the Parliament, the Council and the Commission.

56     It follows that the power of the Member States laid down in Article 4(7) of Directive 2002/46 to continue to apply, in compliance
with the rules of the Treaty, existing national restrictions or bans on trade in food supplements containing vitamins and
minerals or vitamin and mineral substances not included on the positive lists is merely the corollary of a Member State’s
ability under Article 4(6) to allow in its territory until 31 December 2009 the use of such constituents on the conditions
set out in that provision.

57     As the Advocate General has observed at point 22 of his Opinion, the purpose of Article 4(7) of Directive 2002/46 is solely
to provide that Member States other than a State which allows on its territory, within the limits and in compliance with the
conditions set out in Article 4(6), the use in the manufacture of food supplements of vitamins, minerals or vitamin or mineral
substances not included on the positive lists, do not have to allow imports into their own territory of food supplements containing
such ingredients.

58     The argument of the claimants in the main actions which is founded on Article 4(7) of Directive 2002/46 thus does not give
grounds for concluding that the prohibition at issue is unnecessary.

59     Next, as regards Article 11(2) of Directive 2002/46, when that provision is read in conjunction with the 8th recital to the
directive, it becomes clear that its purpose is to preserve, until specific Community rules are adopted, the application,
in compliance with the Treaty, of national rules concerning nutrients other than vitamins and minerals or other substances
with nutritional or physiological effect used as ingredients in food supplements.

60     Article 11(2) of Directive 2002/46 is thus directed solely at food supplements containing nutrients or substances not falling
with the material scope of the directive. Consequently, it is of no relevance for the purpose of ascertaining whether the
prohibition in Articles 3, 4(1) and 15(b) of the directive is necessary.

61     Second, the claimants in the main actions maintain that the prohibition is disproportionate.

62     They submit in that regard that the positive lists are inadequate. That is because the list of substances in Annex II to Directive
2002/46 was compiled on the basis not of the criteria pertaining to safety and bioavailability set out in the 11th recital
in the preamble to the directive but of lists identifying ingredients authorised in the manufacture of food for particular
nutritional purposes. It follows that the prohibition affects a large number of nutrients which are none the less suitable
for a normal diet and are currently manufactured and marketed in certain Member States and which have hitherto not been shown
to represent a risk to human health. The prohibition in Directive 2002/46 is also unjustified and disproportionate in the
case of vitamins and minerals in natural forms, although they are usually found in the normal diet and are better tolerated
by the body than vitamins and minerals from synthetic sources.

63     It must be stated, at the outset, that if the various recitals in the preamble to Directive 2002/46 are read together, it
is apparent that the directive concerns food supplements containing vitamins and/or minerals derived from a manufacturing
process using ‘chemical substances’ (11th recital), and not food supplements whose ingredients include ‘amino acids, essential
fatty acids, fibre and various plant and herbal extracts’ (6th recital), whose conditions for use consequently remain ‘until
... specific Community rules are adopted’ within the scope of ‘national rules’, ‘without prejudice to the provisions of the
Treaty’ (8th recital).

64     Next, it must be noted that the positive lists correspond, as the claimants in Case C-155/04 have observed, to the list of
substances included in the categories ‘vitamins’ and ‘minerals’ in the Annex to Commission Directive 2001/15/EC of 15 February
2001 on substances that may be added for specific nutritional purposes in foods for particular nutritional uses (OJ 2001 L
52, p. 19).

65     As is stated in the 4th recital in the preamble to Directive 2001/15, the selection of the substances identified in the annex
to the directive took into account criteria of safety and availability for use by humans, criteria referred to in the 11th
recital to Directive 2002/46.

66     As is clear when the 10th and 11th recitals to Directive 2002/46 are read together, the fact that a certain number of chemical
substances used as ingredients in food supplements marketed in some Member States are currently not authorised at European
level is explained by the fact that the substances at issue in the main actions had not, at the time when the directive was
adopted, received a favourable evaluation, from the point of view of the criteria of safety and bioavailability, from the
competent European scientific authorities.

67     The information provided by the claimants in the main actions in their written observations about certain vitamin or mineral
substances not included on the positive list in Annex II to Directive 2002/46 is not such as to cast doubt on the merits of
that explanation. It is apparent from it that at the time when the directive was adopted those substances had not yet been
evaluated by the Scientific Committee on Food or that, at the very least, the committee continued to entertain serious doubts,
in the absence of adequate and appropriate scientific data, regarding their safety and/or their bioavailability.

68     In those circumstances and in view of the need for the Community legislature to take account of the precautionary principle
when it adopts, in the context of the policy on the internal market, measures intended to protect human health (see, to that
effect, Case C‐157/96 *National Farmers’ Union and Others* [1998] ECR I‐2211, paragraph 64, and Case C‐180/96 *United Kingdom* v *Commission* [1998] ECR I‐2265, paragraph 100, and Case C‐41/02 *Commission* v *Netherlands* [2004] ECR I‐0000, paragraph 45), the authors of Directive 2002/46 could reasonably take the view that an appropriate way
of reconciling the objective of the internal market, on the one hand, with that relating to the protection of human health,
on the other, was for entitlement to free movement to be reserved for food supplements containing substances about which,
at the time when the directive was adopted, the competent European scientific authorities had available adequate and appropriate
scientific data capable of providing them with the basis for a favourable opinion, whilst giving scope, in Article 4(5) of
the directive, for obtaining a modification of the positive lists by reference to scientific and technological developments.

69     It is also necessary to state in that regard that, by virtue of Article 7 of Regulation (EC) No 178/2002 of the European Parliament
and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European
Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1), the Community legislature
is entitled to adopt the provisional risk management measures necessary to ensure a high level of health protection and may
do so whilst awaiting further scientific information for a more comprehensive risk assessment, as is stated in the 10th recital
to Directive 2002/46.

70     Contrary to the contention of the claimants in Case C‐154/04, a negative list system, which entails limiting the prohibition
to only the substances included on that list, might not suffice to achieve the objective of protecting human health. Reliance
in this instance on such a system would mean that, as long as a substance is not included on the list, it can be freely used
in the manufacture of food supplements, even though, by reason of its novelty for example, it has not been subject to any
scientific assessment apt to guarantee that it entails no risk to human health.

71     The claimants in the main action submit that the procedures referred to in Article 4(5) and (6) of Directive 2002/46 lack
transparency because of the lack of precision in the criteria applied by the European Food Safety Authority in its examination
of dossiers seeking authorisation to use a substance not included on the positive lists. The procedures thus represent a particularly
heavy financial and administrative burden.

72     In that regard, a measure which, like that at issue in the main actions, includes a prohibition on marketing products containing
substances not included on the positive lists laid down in the applicable legislation must be accompanied by a procedure designed
to allow a given substance to be added to those lists and the procedure must comply with the general principles of Community
law, in particular the principle of sound administration and legal certainty.

73     Such a procedure must be accessible in the sense that it must be expressly mentioned in a measure of general application which
is binding on the authorities concerned. It must be capable of being completed within a reasonable time. An application to
have a substance included on a list of authorised substances may be refused by the competent authorities only on the basis
of a full assessment of the risk posed to public health by the substance, established on the basis of the most reliable scientific
data available and the most recent results of international research. If the procedure results in a refusal, the refusal must
be open to challenge before the courts (see, by analogy, Case C‐24/00 *Commission* v *France* [2004] ECR I‐1277, paragraphs 26, 27 and 36, and Case C‐95/01 *Greenham and Abel* [2004] ECR I‐1333, paragraphs 35, 36 and 50).

74     In the case of Directive 2002/46, the procedure accompanying the measure at issue, by which a vitamin, a mineral or a vitamin
or mineral substance may be added to the positive lists, is referred to in Article 4(5) of the directive, which deals with
modification of the lists.

75     It follows that, for the purposes of assessing the validity of the prohibition stemming from Articles 3, 4(1) and 15(b) of
Directive 2002/46, the Court’s review must concern solely the legality of the procedure referred to in Article 4(5) of the
directive. A review of the validity of the procedure laid down in Article 4(6), which is designed for obtaining a temporary
national authorisation and which thus pursues a different purpose from that of the procedure laid down in Article 4(5), falls,
however, outside the scope of the assessment in these cases.

76     Article 4(5) of Directive 2002/46 refers to Article 13(2) of the directive, which provides, in its first subparagraph, that
‘[w]here reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions
of Article 8 thereof’.

77     As is stated in the 12th recital to Directive 2002/46, the reference to the procedure laid down in Articles 5 and 7 of Council
Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission
(OJ 1999 L 184, p. 23) meets the concern that it should be possible, when it is necessary to revise the positive lists to
reflect scientific and technological developments, to use a simplified and accelerated procedure in the form of technical
implementing measures for whose adoption the Commission is responsible.

78     As is shown by the 7th and 9th recitals in the preamble to Decision 1999/468, that procedure, known as ‘comitology’, is intended
to reconcile, on the one hand, the requirement for effectiveness and flexibility arising from the need regularly to amend
and update aspects of Community legislation in the light of developments in scientific understanding in the area of the protection
of human health or safety and, on the other hand, the need to take account of the respective powers of the Community institutions.

79     Within the framework of the comitology procedure, provision is made, under Article 5 of Decision 1999/468, for the Commission
to submit to the committee referred to in Article 13(1) of Directive 2002/46, a draft of the measures to be taken, on which
the committee must deliver its opinion ‘within a time-limit which [its] chairman may lay down according to the urgency of
the matter’ (Article 5(2)). When the committee has delivered its opinion, it is for the Commission to adopt the measures envisaged
if they are in accordance with the opinion (Article 5(3)). If that is not the case or if the committee does not deliver an
opinion, the Commission must, ‘without delay’, submit to the Council a proposal relating to the measures to be taken and must
inform the European Parliament (Article 5(4)) and the Council may act within a period of three months (Article 5(6), first
subparagraph, of Decision 1999/468; Article 13(2), second subparagraph, of Directive 2002/46). If within that period the Council
opposes the Commission’s proposal, the Commission must re-examine its proposal and may submit the same proposal or an amended
proposal to the Council or present a legislative proposal on the basis of the Treaty (Article 5(6), second subparagraph).
However, if on the expiry of that period the Council has neither adopted the proposed implementing act nor indicated its opposition
to the proposal for implementing measures, those measures are adopted by the Commission (Article 5(6), third subparagraph).

80     The provisions of Article 13(2), second subparagraph, of Directive 2002/46 in conjunction with those of Article 5 of Decision
1999/468, to which Article 4(5) of Directive 2002/46 refers, ensure that once the matter has been brought before the committee
by the Commission under Article 5(2) of the decision the procedure for amending the positive lists is completed within a reasonable
time.

81     It would, no doubt, have been desirable, as regards the stage between the filing of a dossier seeking modification of the
positive lists and the time when the matter is brought before the committee (a stage which includes, inter alia, consultation
of the European Food Safety Authority as envisaged in both Article 14 of, and the 10th recital to, Directive 2002/46), for
the directive to have included provisions which in themselves ensured that that stage be completed transparently and within
a reasonable time.

82     The absence of any such provisions cannot, however, be regarded as such as to jeopardise the proper functioning of the procedure
for modifying the positive lists within a reasonable time. It is none the less the responsibility of the Commission, by virtue
of the implementing powers conferred on it by Directive 2002/46 concerning, inter alia, the way the procedure is operated,
to adopt and make accessible to interested parties, in accordance with the principle of sound administration, the measures
necessary to ensure generally that the consultation stage with the European Food Safety Authority is carried out transparently
and within a reasonable time.

83     By providing for the procedure established in Article 5 of Decision 1999/468 to apply, Article 4(5) of Directive 2002/46 also
ensures that an application for inclusion on the positive lists of a vitamin, a mineral or a vitamin or mineral substance
can be rejected only by a binding legal act, which may be subject to judicial review.

84     It must be added in that regard that Directive 2002/46 contains nothing to compel or encourage the competent European authorities
to take account, in the procedure referred to in Article 4(5) of the directive, of criteria which do not relate to the objective
of protecting human health.

85     On the contrary, it is clear from the 9th recital to Directive 2002/46 that the criterion that the vitamin or mineral be normally
found in, and consumed as part of, the diet is the only relevant criterion for the purposes of the list in Annex I to the
directive. As the claimants in Case C‐154/04 have observed, although the proposal for the directive mentioned at paragraph
37 of this judgment provided for a second criterion, namely that the vitamins and minerals in question should be ‘considered
essential nutrients’, as is shown by the 7th recital in the preamble to the proposal, that criterion is no longer included
in the 9th recital to Directive 2002/46. As regards the list in Annex II to the directive, it is apparent from the 11th recital
that the only relevant criteria are those relating to the safety and bioavailability of the chemical substance in question.

86     Such statements show that the relevant criteria for the purposes of the positive lists and the application of the procedure
for modification of those lists can, as conceived by the Community legislature, relate only to grounds of human-health protection,
to the exclusion of considerations concerning nutritional needs.

87     It should also be stated that the criticisms made by the claimants in the main actions of the procedure for modifying the
positive lists concern in essence the administrative and financial burdens involved in presenting files seeking such modifications
and the way in which the criteria of safety and bioavailability set out in the 11th recital to Directive 2002/46 are applied
by the European Food Safety Authority when considering individual files.

88     However, although such factors may, depending on the circumstances, be advanced in support of an action for annulment of a
final decision refusing an application for modification of the positive lists or an action for damages against the European
Food Safety Authority under Article 47(2) of Regulation No 178/2002, they cannot, in themselves, affect the legality of the
procedure for modifying the positive lists, as the Greek Government has pointed out in its written observations.

89     It must therefore be concluded that the analysis at paragraphs 76 to 88 of this judgment has not revealed any factor of such
a kind as to affect the legality of the procedure laid down in Article 4(5) of Directive 2002/46 with regard to modification
of the positive lists.

90     Finally, it should be noted that, when the Community legislature wishes to delegate its power to amend aspects of the legislative
act at issue, it must ensure that that power is clearly defined and that the exercise of the power is subject to strict review
in the light of objective criteria (see, to that effect, Case 9/56 *Meroni* v *High Authority* [1958] ECR 133, at p. 152) because otherwise it may confer on the delegate a discretion which, in the case of legislation
concerning the functioning of the internal market in goods, would be capable of impeding, excessively and without transparency,
the free movement of the goods in question.

91     In this instance, as has been stated at paragraphs 85 and 86 of this judgment, the 9th and 11th recitals to Directive 2002/46
state that the only relevant criteria concerning the positive lists relate, as regards vitamins and minerals, to the fact
that the latter are normally found in and consumed as part of the diet and, as regards chemical substances used as sources
of vitamins or minerals, to the safety and bioavailability of the substance concerned.

92     Those statements, which are closely related to the concrete expression of those criteria through the positive lists in the
body of Directive 2002/46 and which should ideally have been included in the actual provisions of the directive (see, to that
effect the Inter-Institutional Agreement of the European Parliament, of the Council and of the Commission of 22 December 1998
on common guidelines for the quality of drafting of Community legislation (OJ 1999 C 73, p. 1)), limit the Commission’s power
to modify the lists through their reference to objective criteria connected exclusively with public health. They show that
in this instance the Community legislature laid down the essential criteria to be applied in the matter when the powers thus
delegated are exercised (see, to that effect, Case 25/70 *Köster* [1970] ECR 1161, paragraph 6).

93     It follows that Articles 3, 4(1) and 15(b) of Directive 2002/46 are not invalid by reason of an infringement of Articles 28
EC and 30 EC.

 Articles 1(2) and 24(2)(a) of Regulation No 3285/94

94     It is appropriate to point out that Regulation No 2385/94 was adopted in the framework of the common commercial policy, as
is apparent from its legal basis, namely Article 113 of the EC Treaty (now, after amendment, Article 133 EC).

95     The objective of the regulation is to liberalise imports of products originating in non-member States. However, it does not
aim to liberalise the placing on the market of those products, which takes place after import (see Case C‐296/00 *Expo Casa Manta* [2002] ECR I‐4657, paragraphs 30 and 31).

96     It follows that, as the Parliament, the Council and the Commission have rightly submitted and as the Advocate General has
pointed out at points 57 and 58 of his Opinion, Regulation No 3285/94 is of no relevance for the purpose of assessing the
legality of Community measures whose effect is to prohibit the placing on the market within the Community of products imported
from non-member States which do not satisfy the conditions laid down for such placing on the market for reasons relating to
the protection of human health.

97     Furthermore, even if there were a conflict between Articles 3, 4(1) and 15(b) of Directive 2002/46 and Articles 1(2) and 24(2)(a)
of Regulation No 3285/94, it would then be necessary to state that the directive was adopted on the basis of Article 95 EC
and thus does not constitute a measure implementing the regulation.

98     It follows that there is no need to consider the validity of the relevant provisions of Directive 2002/46 in the light of
Regulation No 3285/94.

*Part (c) of the question*

99     By part (c) of its question, the national court is asking whether Articles 3, 4(1) and 15(b) of Directive 2002/46 are invalid
by reason of an infringement of the principle of subsidiarity.

100   In both these cases, the claimants in the main actions submit that the provisions interfere unjustifiably with the powers
of the Member States in a sensitive area involving health, social and economic policy. The claimants in Case C‐154/04 add
that the Member States are the best placed to determine, on their respective markets, the public health requirements which
would justify a barrier to the free marketing of food supplements on their national territory.

101   In that regard, it is appropriate to recall that the principle of subsidiarity is set out in the second subparagraph of Article
5 EC, which provides that the Community, in areas which do not fall within its exclusive competence, is to take action only
if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore,
by reason of the scale or effects of the proposed action, be better achieved by the Community.

102   Paragraph 3 of the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the Treaty,
states that the principle of subsidiarity does not call into question the powers conferred on the Community by the Treaty,
as interpreted by the Court of Justice.

103   As the Court has already held, the principle of subsidiarity applies where the Community legislature makes use of Article
95 EC, inasmuch as that provision does not give it exclusive competence to regulate economic activity on the internal market,
but only a certain competence for the purpose of improving the conditions for its establishment and functioning by eliminating
barriers to the free movement of goods and the freedom to provide services or by removing distortions of competition (*British American Tobacco (Investments) and Imperial Tobacco*, paragraph 179).

104   In deciding whether Articles 3, 4(1) and 15(b) of Directive 2002/46 comply with the principle of subsidiarity, it is necessary
to consider whether the objective pursued by those provisions could be better achieved by the Community.

105   In that regard, it must be stated that the prohibition, under those provisions, on marketing food supplements which do not
comply with Directive 2002/46, supplemented by the obligation of the Member States under Article 15(a) of the directive to
permit trade in food supplements complying with the directive (see, by analogy, *British American Tobacco (Investments) and Imperial Tobacco*, paragraph 126), has the objective of removing barriers resulting from differences between the national rules on vitamins,
minerals and vitamin or mineral substances authorised or prohibited in the manufacture of food supplements, whilst ensuring,
in accordance with Article 95(3) EC, a high level of human-health protection.

106   To leave Member States the task of regulating trade in food supplements which do not comply with Directive 2002/46 would perpetuate
the uncoordinated development of national rules and, consequently, obstacles to trade between Member States and distortions
of competition so far as those products are concerned.

107   It follows that the objective pursued by Articles 3, 4(1) and 15(b) of Directive 2002/46 cannot be satisfactorily achieved
by action taken by the Member States alone and requires action to be taken by the Community. Consequently, that objective
could be best achieved at Community level.

108   It follows from the foregoing that Articles 3, 4(1) and 15(b) of Directive 2002/46 are not invalid by reason of an infringement
of the principle of subsidiarity.

*Part (d) of the question*

109   By part (d) of its question, the national court is asking whether Articles 3, 4(1) and 15(b) of Directive 2002/46 are invalid
by reason of an infringement of the principle of proportionality.

110   The claimants in the main actions maintain that those provisions constitute a disproportionate means of achieving the intended
objective. The arguments put forward in support of that claim are those set out at paragraphs 54, 62, 70 and 71 of this judgment.

111   However, it is clear from the analysis set out at paragraphs 55 to 60, 63 to 70 and 72 to 92 of this judgment that Articles
3, 4(1) and 15(b) of Directive 2002/46 are measures appropriate for achieving the objective which they pursue and that, given
the obligation of the Community legislature to ensure a high level of protection of human health, they do not go beyond what
is necessary to attain that objective.

112   It follows that Articles 3, 4(1) and 15(b) of Directive 2002/46 are not invalid by reason of an infringement of the principle
of proportionality.

*Part (e) of the question*

113   By part (e) of its question, the national court is asking whether Articles 3, 4(1) and 15(b) of Directive 2002/46 are invalid
by reason of an infringement of the principle of equal treatment.

114   The claimants in both actions submit that those provisions infringe that principle because certain substances which do not
satisfy the criteria set out in the 11th recital to Directive 2002/46 were included on the positive lists without having been
subject to additional tests, whereas burdensome requirements are imposed on manufacturers of food supplements containing non-authorised
substances in order to prove that the abovementioned criteria have been met. They add that there is no objective justification
for that difference in treatment, the lists not having been compiled on the basis of the criteria laid down by the Directive.

115   In that regard, it is appropriate to bear in mind that, by virtue of settled case-law, the principle of equal treatment requires
that comparable situations must not be treated differently and that different situations must not be treated in the same way
unless such treatment is objectively justified (see Joined Cases C‐184/02 and C‐223/02 *Spain and Finland* v *Parliament and Council* [2004] ECR I‐7789, paragraph 64; *Arnold André*, paragraph 68, and *Swedish Match*, paragraph 70).

116   As the United Kingdom Government, the Parliament and the Commission have observed in their written observations, the vitamin
and mineral substances which are not included on the positive list in Annex II to Directive 2002/46 are not in the same situation
as those which are included on it. In fact, unlike the latter substances, those that are not included on the list, had not,
at the time when the directive was adopted, been subject to a scientific evaluation by the competent European authorities
so as to ensure their conformity with the criteria of safety and bioavailability referred to in the 11th recital to the directive.

117   Since each substance has, as is stated in those observations, its own characteristics, a substance which had not yet been
evaluated in accordance with those criteria could not be treated in the same way as a substance included on the positive lists.

118   That difference in situations therefore permitted a difference in treatment, and an infringement of the principle of equal
treatment cannot be successfully pleaded.

119   It follows from the foregoing that Articles 3, 4(1) and 15(b) of Directive 2002/46 are not invalid by reason of an infringement
of the principle of equal treatment.

*Part (f) of the question*

120   By part (f) of its question, the national court is asking whether Articles 3, 4(1) and 15(b) of Directive 2002/46 are invalid
by reason of infringement of Article 6(2) EU, read in the light of Article 8 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘the ECHR’) and Article 1 of the First Protocol
to the Convention, and of the fundamental right to property and/or the right to carry on an economic activity.

121   In both cases the claimants in the main actions maintain that there is such an infringement. They submit that Directive 2002/46
is an unjustified and disproportionate impairment of the ability of manufacturers of food supplements to pursue their activities,
which have hitherto been carried on entirely lawfully, and of the individual right to freedom of choice as regards food products.

122   In that regard, it must first be observed that Article 6(2) EU provides: ‘The Union shall respect fundamental rights, as guaranteed
by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of
Community law’.

123   Article 8 of the ECHR entitled ‘Right to respect for private and family life’ provides, at paragraph (1), that ‘[e]veryone
has the right to respect for his private and family life, his home and his correspondence’ and, at paragraph (2), that ‘[t]here
shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others’.

124   The fact that Articles 3, 4(1) and 15(b) of Directive 2002/46 may deprive people of the right to consume food supplements
which do not comply with the directive cannot be regarded as amounting to a breach of respect for private and family life.

125   Article 1 of the First Protocol to the ECHR states, under the heading ‘Protection of Property’:

‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law and by the general principles of international
law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions
or penalties.’

126   It is clear from settled case-law that the right to property, with which the provisions reproduced in the preceding paragraph
are concerned, and likewise the freedom to pursue an economic activity, form part of the general principles of Community law.
However, those principles are not absolute but must be viewed in relation to their social function. Consequently, the exercise
of the right to property and the freedom to pursue an economic activity may be restricted, provided that any restrictions
in fact correspond to objectives of general interest pursued by the Community and do not constitute in relation to the aim
pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (see, inter
alia, Case 265/87 *Schräder* [1989] ECR 2237, paragraph 15, and Case C‐200/96 *Metronome Musik* [1998] ECR I‐1953, paragraph 21).

127   It is the case here that the prohibition on the marketing and placing on the Community market of food supplements which do
not comply with Directive 2002/46 is capable of restricting the freedom of manufacturers of those products to carry on their
business activities.

128   Nevertheless, their right to property is not called into question by the introduction of such a measure. No economic operator
can claim a right to property in a market share, even if he held it at a time before the introduction of a measure affecting
the market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances
(Case C‐280/93 *Germany* v *Council* [1994] ECR I‐4973, paragraph 79, and *Swedish Match*, paragraph 73). Nor can an economic operator claim an acquired right or even a legitimate expectation that an existing situation
which is capable of being altered by measure taken by the Community institutions within the limits of their discretion will
be maintained (Case 52/81 *Faust* v *Commission* [1982] ECR 3745, paragraph 27, and *Swedish Match*, paragraph 73).

129   As has been stated above, the prohibition arising from Articles 3, 4(1) and 15(b) of Directive 2002/46 is intended to protect
human health, which is an objective of general interest. It is not evident that the prohibition is inappropriate in relation
to that objective. In those circumstances, the obstacle to the freedom to pursue an economic activity which a measure of that
kind represents cannot be found, in the light of the aim pursued, to constitute a disproportionate impairment of the right
to exercise that freedom or to the right to property.

130   It follows that Articles 3, 4(1) and 15(b) of Directive 2002/46 are not invalid by reason of infringement of Article 6(2)
EU, read in the light of Article 8 of the ECHR and Article 1 of the First Protocol thereto, the fundamental right to property
or the right to pursue an economic activity.

*Part (g) of the question*

131   By part (g) of its question, the national court is asking whether Articles 3, 4(1) and 15(b) of Directive 2002/46 are invalid
by reason of an infringement of the obligation to state reasons laid down in Article 253 EC.

132   The claimants in Case C‐154/04 maintain that no reasons are given for the prohibition arising from those provisions, which,
in their submission, amounts to an infringement of Article 253 EC.

133   In that regard, it should be observed that, although the reasoning required by Article 253 EC must show clearly and unequivocally
the reasoning of the Community authority which adopted the contested measure so as to enable the persons concerned to ascertain
the reasons for the measure and to enable the Court to exercise its power of review, it is not required to go into every relevant
point of fact and law (Case C‐122/94 *Commission* v *Council* [1996] ECR I‐881, paragraph 29).

134   Furthermore, the question whether a statement of reasons satisfies the requirements must be assessed with reference not only
to the wording of the measure but also to its context and to the whole body of legal rules governing the matter in question.
If the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require
a specific statement of reasons for each of the technical choices made by the institution (see, inter alia, Case C‐100/99
*Italy* v *Council and Commission* [2001] ECR I-5217, paragraph 64).

135   Here, the 9th recital to Directive 2002/46 explains that the vitamins and minerals affected by the prohibition are those which
are not normally found in, or consumed as part of, the diet.

136   As regards existing vitamin and mineral substances covered by the prohibition, the 10th and 11th recitals to Directive 2002/46
clearly disclose that such a measure relates to the general concern, expressed in the 5th recital to the directive, to ensure
a high level of protection for consumers by authorising the placing on the market only of products which are safe for human
health and is explained by the fact that the substances concerned had not, at the time when the directive was adopted, been
evaluated by the Scientific Committee on Food by reference to the criteria of safety and bioavailability on the basis of which
the positive list in Annex II to the directive was drawn up.

137   It follows that Articles 3, 4(1) and 15(b) of Directive 2002/46 are not invalid by reason of an infringement of the obligation
to state reasons laid down in Article 253 EC.

138   In view of all the foregoing considerations, the answer to the question referred to the Court must be that examination of
the question has revealed no factor of such a kind as to affect the validity of Articles 3, 4(1) and 15(b) of Directive 2002/46.

**Costs**

139   Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national
court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than
the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

**Examination of the question referred to the Court has revealed no factor of such a kind as to affect the validity of Articles
3, 4(1) and 15(b) 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.**

[Signatures]

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[\*](#Footref*) Language of the case: English.