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European court says minimum alcohol pricing 'could break trade rules' Alcohol price plans face further delay after European ruling
(about 2 hours later)
Plans to introduce a minimum unit price for alcohol in Scotland risk infringing EU rules on free trade, according to an initial ruling by Europe's top court. Plans to introduce minimum unit pricing for alcohol in Scotland face further delay, following an initial ruling by Europe's highest court.
The European Court of Justice (ECJ) said it would only be legal if it could be shown no other mechanism - such as raising taxes - could deliver the desired public health benefits. MSPs passed legislation on 2012 which set a minimum unit price of 50p.
In 2012, MSPs passed legislation which set a minimum unit price of 50p. But European Court of Justice advocate general Yves Bot said the move risked infringing EU rules on free trade.
But the Scottish Whisky Association (SWA) challenged the proposals. In an official opinion, he said it would only be legal if it could be shown no other mechanism could deliver the desired public health benefits.
It argued that the legislation acted as a barrier to trade. Scotland's First Minister Nicola Sturgeon welcomed the opinion, saying it confirmed that minimum unit pricing was not precluded by EU law.
The legal bid was initially rejected by judge Lord Doherty at the Court of Session in Edinburgh in 2013. The Scottish government, which has argued that minimum pricing is vital to address Scotland's "unhealthy relationship with drink", has been unable to implement the policy while the legal process is ongoing.
'Barrier to trade'
The Scottish legislation was challenged by the Scottish Whisky Association (SWA) in 2013, when it argued that it acted as a barrier to trade.
Its legal bid was initially rejected by judge Lord Doherty at the Court of Session in Edinburgh.
What's happening in Scotland? Keep in touch through our live page.What's happening in Scotland? Keep in touch through our live page.
But following an appeal hearing, the case was referred to the European court in Luxembourg last year.But following an appeal hearing, the case was referred to the European court in Luxembourg last year.
Court opinion Public health
In an Opinion released on Thursday, the court's advocate general Yves Bot said a minimum unit pricing (MUP) system risked infringing the principle of the free movement of goods and would only be legal if it could be shown that no other mechanism was capable of achieving the desired result of protecting public health. In an opinion released on Thursday, Mr Bot said a minimum unit pricing (MUP) system risked infringing the principle of the free movement of goods and would only be legal if it could be shown that no other mechanism was capable of achieving the desired result of protecting public health.
He stated that "a Member State can choose rules imposing a minimum retail price of alcoholic beverages, which restricts trade within the European Union and distorts competition, rather than increased taxation of those products, only on condition that it shows that the measure chosen presents additional advantages or fewer disadvantages by comparison with the alternative measure".He stated that "a Member State can choose rules imposing a minimum retail price of alcoholic beverages, which restricts trade within the European Union and distorts competition, rather than increased taxation of those products, only on condition that it shows that the measure chosen presents additional advantages or fewer disadvantages by comparison with the alternative measure".
The Scottish government, which has argued that minimum pricing is vital to address Scotland's "unhealthy relationship with drink", has been unable to implement the policy while the legal process is ongoing. The European court is expected to take up to six months to issue its final ruling, before the case is referred back to the Court of Session in Edinburgh.
It is understood that ministers regard the European court's preliminary ruling as "better than expected" as it "does not preclude" minimum pricing. First Minister Nicola Sturgeon said: "We welcome this opinion, in which the advocate general confirms that minimum unit pricing is not precluded by EU law, but sets out tests that the national court has to apply.
"Importantly, this initial opinion indicates it will be for the domestic courts to take a final decision on minimum unit pricing.
"The advocate general finds that the policy can be implemented if it is shown to be the most effective public health measure available.
"As such, the legal process is ongoing and we await a final response from the European Court of Justice, before the case returns to the Scottish courts.
'Right measure'
"While we must await the final outcome of this legal process, the Scottish government remains certain that minimum unit pricing is the right measure for Scotland to reduce the harm that cheap, high-strength alcohol causes our communities."
The Scotch Whisky Association welcomed the advocate general's opinion.The Scotch Whisky Association welcomed the advocate general's opinion.
Chief executive David Frost said: "The opinion encourages us in our long-held view that MUP is illegal when there are less trade-restrictive measures available.Chief executive David Frost said: "The opinion encourages us in our long-held view that MUP is illegal when there are less trade-restrictive measures available.
"We await the Court of Justice's final ruling.""We await the Court of Justice's final ruling."
The European court is expected to take up to six months to issue its final ruling, before the case is referred back to the Court of Session in Edinburgh. Scottish Conservative health spokesman Jackson Carlaw said: "After two-and-a-half years the Scottish government has not been able to introduce minimum pricing and today's ruling from the European Court hardly makes matters any clearer.
'Hazardous drinking' "Assurances at the time that there was no legal case to answer were clearly overly optimistic.
Linda Bauld, Professor of Health Policy at Stirling University's Institute for Social Marketing, said raising the price of alcohol in Scotland would save lives. "Even if minimum pricing does finally jump all the legal hurdles it is far from clear if it will then be supported by the European Commission."
Professor Bauld told BBC Radio Scotland's Good Morning Scotland programme: "The reason the Scottish Parliament passed this measure is that there is strong and clear evidence that increased price reduces both hazardous drinking and alcohol problems. Scottish Green MSP Patrick Harvie criticised the whisky body for "delaying the introducing of minimum pricing for alcohol".
"It is really unfortunate that we have had this delay because of this legal case. He added: "The stymying of minimum pricing by a lobby group representing big drinks multinationals mirrors the tactics of the tobacco industry when it tried to stop life-saving legislation.
"We know that since minimum pricing was passed in the Scottish Parliament, around 2,500 Scots have died because of alcohol. If we could raise the minimum price, we know we could save some lives and also the other harm caused by alcohol in Scotland." "Today's statement from the European Court is disappointing and we must hope that wiser heads prevail when the final judgement is issued."
Former Conservative MEP Struan Stevenson said he was concerned about what the introduction of a minimum price for alcohol would do to Scotland's trade position.
He told Good Morning Scotland: "I think it would drive a cart and horse through the internal market rules in the EU and would also have a detrimental impact on external trade.
"If you consider there is a ban on price fixing within the internal market on the freedom of movement of goods, and if you also take into account we are trying in the last stages to negotiate a free trade agreement with India, they apply a 150% tariff on Scots whisky.
"If we suddenly say we are putting up the minimum price of alcohol on health grounds, it undermines our whole negotiating position."