Cases C-154/04 & C-155/04 Alliance for Natural Health [2005] ECR I-6451

Key point

The principle of subsidiarity is met for any measure that properly makes use of Article 95 EC (now Article 114 TFEU) as the harmonisation of national rules cannot be achieved by member state action

Directive 2002/46 harmonises national rules governing supplement foods containing concentrated sources of nutrients on the basis of legislative diversity harming the internal market
In both cases Cs argued that the directive interferes with powers of member states in the area of health, social and economic policy and that the member states are best placed to determine the public health requirements which would be a barrier to the free marketing food supplements in their respective markets

Subsidiarity applies where the Community legislature makes use of Article 95 EC in as much as that provision does not give it exclusive competence to regulate economic activity in the internal market but only a competence for improving the conditions for functioning of the internal market
Given that removal of barriers resulting from divergent national rules cannot be achieved by member state action, the principle of subsidiarity is met (paras. 99-108)