On April 5, the Advocate General for the European Union ruled invalid the attempt by the European Parliament to limit the availability of vitamins and other essential nutrients. Justice Leendert A Geelhoed found the so-called EU Directive of 2002 to be in violation of the EU Constitution, as well as various trade laws and international trade treaties. His ruling found in favor of Britain's supplement industry, which had challenged the Directive in both the European Court and the International Court this January.

If upheld, the Directive would have caused all nutritional supplements to be withdrawn from the European market by August 1 of this year. Distribution could not have been resumed until the international body, Codex Alimentarius, to which all 25 EU member states belong, had established (in an unspecified time frame) their safety—through risk assessment procedures applicable only to synthetic drugs and poisons, but not to nutrients.

Justice Geelhoed struck his first blow at the very basis of the EU Directive's authority by showing that Article 152 (4c) of the European Union's Constitution clearly forbids any attempt by any one member country to "harmonize legislation on public health." When the European Parliament adopted this Directive in 2002, it met with such overwhelming protest from the people, that the email and fax systems of the Parliament broke down for days. More than eleven million protest messages were received from the 300 million EU citizens.

However, Norway and Germany did exercise their individual constitutional right to adopt national-local guidelines for supplement availability, and these happen to be the restrictive Directive guidelines, which both countries passed into law within the last two years. (See "Life under Codex" on kospublishing.com (below) which also allows access to the text of the Directive and Justice Geelhoed's decision.)

Secondly, citing a long list of case law and treaties, Justice Geelhoed ruled that EU trade law, as well as applicable international trade treaties, does not permit the "prohibition [of] substances, which no one has ever doubted are essential for the diet, and/or which have not been shown to represent a danger to health." He found that instead of "facilitating trade", as these laws and treaties require, this Directive creates illegal obstacles to trade and erects illegal barriers to their availability.

He observed that the Directive's specifications "betray a preference for the inorganic forms, which results in unjustifiable and disproportionate exclusion, of their natural forms, which are nevertheless common in the normal diet and generally better tolerated by the body." Having put his finger on the sore spot, namely the attempt to allow the marketing only of Big Pharma's synthetic vitamins, he simultaneously showed that this trickery is a violation of trade laws, to which the term "disproportionate exclusion" refers (ie anti-monopoly principles of fair trade). He observed that this "significantly affects the freedom of market operators by impeding the continuation of activities previously regarded as permissible and safe."

Furthermore, he found that no "minimum guarantees for protection" exist for the industry, as the Directive simply allows Codex to decide what supplements may return to the market (following their disappearance in August of this year) and in what dosage, whenever Codex feels like doing so. Nor would the public ever know on what scientific grounds or public health principles such decisions will have been made.

If Codex "in its opinion" deems any supplement to be harmful to the public, there are no mechanisms whereby consumers, manufacturers, or scientists can obtain the supporting facts chosen by Codex for its decision, or have the right to appeal in this Directive. Justice Geelhoed slammed the arbitrary powers the Directive grants to Codex as being "about as transparent as a black box" and in total contravention to all existing legal rights or "essential guarantees, which are basic principles of law."

Finally, Justice Geelhoed observed that "It would be odd to start the evaluation procedure [of all supplements according to risk assessment principles used for toxins and synthetic drugs] from zero again, when it is clear that the products concerned have already undergone [tests] establishing safety and bioavailability [which should be used] as the existing evaluations as a starting point.. This may be the ultimate understatement regarding the corporate-driven activities of Codex.

A supporting ruling on the same issue is expected to be handed down by the International Court in Luxemburg this June. If so, this will undermine the efforts of the Codex Alimentarius Committee, which in 2004 adopted the EU Directive as the guideline for the international regulation of supplements.

In its determined effort to outlaw nutritional and preventive medicine worldwide under the guise of facilitating international trade, Codex tripped over those very trade laws and treaties, which they pretend to serve. The EU with its 25 member states constitutes a large block of votes at Codex, so when the EU Parliament harmonized its member countries under this Directive in 2002 (illegally, as it now turns out), Codex appeared to be unstoppable in its aim to impose those same restrictions on the rest of the world.

The World Trade Organization enforces Codex, which is mandated by the UN's World Health Organization to facilitate food trade and regulate food safety. The 171 countries who are members of Codex had agreed (until last November) that compliance was voluntary. However, after all delegates left the general meeting and returned to their countries last November general meeting, the Commission ruled, in their absence and without their supporting vote, that as of 2005, its rulings are to be considered mandatory.

Now that the European Court has found that the EU parliament has violated trade laws, it will be possible for the health freedom movement in the dissenting countries of South Africa, New Zealand, the US, and Canada to strategize more effectively with regard to securing the right of people to preserve their health according to their own judgment—in harmony not with Big Brothers Codex and Big Pharma, but with current science.

German-born, Helke Ferrie is the owner and director of KOS Publishing (incorporated in ON Canada, in July 2002). Ferrie's education includes prehistoric, ancient, Near Eastern and Greek archaeology; Chinese and Buddhist studies; and she holds a master's degree in physical anthropology. Her areas of special interest are the evolution of disease and the application of Complexity Theory to biological evolution.