This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.

You can find the current article at its original source at http://www.theguardian.com/society/2015/sep/03/scotlands-minimum-alcohol-price-plan-dealt-huge-blow

The article has changed 3 times. There is an RSS feed of changes available.

Version 1 Version 2
Scotland's minimum alcohol price plan dealt blow Nicola Sturgeon vows to fight for minimum alcohol price in Scotland
(about 5 hours later)
Nicola Sturgeon’s plan to fix a minimum price for alcohol has suffered a huge blow after the European court’s top lawyer ruled it would risk infringing EU law on free trade. Nicola Sturgeon has said she will “vigorously” defend her plans to fix a minimum price for alcohol in Scotland despite a European court being told that the policy could be discriminatory and breach EU free trade rules.
In a formal opinion on Sturgeon’s flagship policy, the advocate general to the European court of justice, Yves Bot, has said fixing a legal price for all alcoholic drinks could only be justified to protect public health if no other mechanism, such as tax increases, could be found. Scotland’s first minister said she believed the advice from the European court of justice’s (ECJ) advocate general, Yves Bot, to the court of justice would ultimately give the Scottish government a fresh chance to win legal approval for the measure despite heavy opposition from the whisky industry and other member states.
Bot’s opinion is expected to mean a final defeat for the Scottish government’s efforts to be the first in Europe to introduce minimum pricing – supported by leading figures in the medical profession and the police, after several years of legal battles. The case would eventually come back to Scotland’s civil court, the court of session, and Sturgeon said: “We believe minimum unit pricing would save hundreds of lives in coming years and we will continue to vigorously make the case for this policy.”
It is highly likely the ECJ in Luxembourg will now uphold complaints from the Scotch Whisky Association (SWA) and nine other member states, including France, Spain and Bulgaria, because its judgments rarely contradict an opinion from the advocate general. In a major blow to Sturgeon’s government, Bot has advised the ECJ that he believes her flagship policy of setting an across-the-board 50p minimum price per unit of alcohol, which would raise prices for all consumers, clearly breached EU competition and free trade laws.
Bot said: “I feel that, having regard to the principle of proportionality, it is difficult to justify the rules at issue, which appear to me to be less consistent and effective than an ‘increased taxation’ measure and may even be perceived as being discriminatory.” The court’s final decisions rarely contradict opinions from the advocate general.
The ECJ said Bot was “of the opinion that such a system risks 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. Bot said the measure could be justified on public health grounds – the central justification put forward by Sturgeon – but only if the Scottish government could prove it was more effective and less damaging than other measures such as targeted taxation, and was a measure of last resort.
“In particular, the advocate general suggests that increasing taxation of alcohol could be an alternative and it would be for the Scottish government to prove that this was not a suitable means of curbing excessive consumption of alcohol.” Related: Minimum alcohol pricing cuts serious crime, study reveals
Nicola Sturgeon said on Twitter she believed that Bot’s opinion did not rule out minimum pricing entirely but established the legal tests that a national court needed to apply – implying the Scottish government still believed its policy could be authorised by the courts. “I feel that, having regard to the principle of proportionality, it is difficult to justify the rules at issue, which appear to me to be less consistent and effective than an ‘increased taxation’ measure and may even be perceived as being discriminatory,” Bot said.
Sturgeon added that she welcomed the opinion because it said minimum pricing was not precluded by EU law, and it said that domestic courts had the final say. Bot said an EU member state can use minimum pricing to restrict trade and distort competition on health grounds but “only on condition that it shows that the measure chosen [minimum pricing] has additional advantages or fewer disadvantages than the alternative measure.”
His opinion will heavily influence a decision by the ECJ, which is studying a legal challenge to the policy on competition and free trade grounds from the Scotch Whisky Association (SWA), several European drinks industry groups and nine member states.
The court’s decisions rarely contradict opinions from the advocate general, and his analysis was welcomed by the SWA. “The opinion encourages us in our long-held view that minimum unit pricing is illegal when there are less trade restrictive measures available,” said David Frost, the association’s chief executive.
But Sturgeon said it was highly significant that Bot had confirmed that minimum pricing was not of itself illegal under EU law – a point made forcibly by health campaigners who back the policy on Thursday.
“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,” she said.“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,” she said.
“In recent weeks statistics have shown that alcohol-related deaths are rising again and that consumption may be rising again after a period of decline. We believe minimum unit pricing would save hundreds of lives in coming years and we will continue to vigorously make the case for this policy.” Although Scottish government data shows alcohol sales are falling following other control measures, Sturgeon said too many Scots were dying from alcohol abuse.
The ECJ is now expected to refer the case back to the court of session for a final decision, but Bot made clear he believed that Scottish ministers would had to prove that minimum pricing had fewer disadvantages than using general or targeted taxation – a difficult test to meet.
The Scottish government could now argue in court that it has no other powers because it is unable to control alcohol taxation since that is controlled by the UK government, leading to further legal battles in the Scottish courts and a fresh constitutional row over Holyrood’s tax powers.
Bot said an EU member state can use minimum pricing to restrict trade and distorted competition on health grounds “only on condition that it shows that the measure chosen [minimum pricing] has additional advantages or fewer disadvantages than the alternative measure.
“I shall add that the fact that the alternative measure of increased taxation is capable of procuring additional advantages by contributing to the general objective of combating alcohol abuse does not justify rejecting that measure in favour of the MUP measure.”
The latest statistics showed that alcohol-related deaths in Scotland rose last year by 5% to 1,152 deaths. It was the third year in a row the death rate had increased after a long-term decline from a high of 1,546 in 2006 – well above the rate in the rest of the UK.The latest statistics showed that alcohol-related deaths in Scotland rose last year by 5% to 1,152 deaths. It was the third year in a row the death rate had increased after a long-term decline from a high of 1,546 in 2006 – well above the rate in the rest of the UK.
In 2013, nearly 30 men out of every 100,000 died of alcohol-related diseases in Scotland, against a UK average of 19 deaths per 100,000.In 2013, nearly 30 men out of every 100,000 died of alcohol-related diseases in Scotland, against a UK average of 19 deaths per 100,000.
A law introducing a 50p minimum price for each unit of alcohol was passed by the Scottish parliament in May 2012, after opposition parties reluctantly backed a policy championed by Sturgeon while she was the Scottish health secretary. Eric Carlin, director of Scottish Health Action on Alcohol Problems, set up by Scotland’s royal medical colleges, said: “This is a good day for public health. The advocate general has made clear that the Scottish minimum unit pricing policy is justified as a regulatory measure that is permitted in European law to work alongside taxation to reduce the lives being destroyed and early deaths causes to Scots every day by cheap alcohol.”
Its implementation had to be suspended until the legal challenges were exhausted. A first challenge by the SWA was rejected by Lord Docherty at the court of session, Scotland’s civil court, in 2013. The Scottish government could now argue in court that it has no other powers available to it because alcohol taxation is controlled by the UK government, leading to further legal battles in the Scottish courts and a fresh constitutional row over Holyrood’s tax powers.
An SWA challenge to that ruling was then referred on appeal by the court of session to the European court in April 2014, without it then going to the UK supreme court. It said there were many complex issues which had to be investigated and settled at European level. However, competition law experts said the advocate general’s ruling actually set very tough tests for Sturgeon’s policy. Bot said Scottish ministers had rejected the tax route to the court, but then offered no serious evidence that using taxes would have a more damaging impact than minimum pricing.
The case was being watched closely by the UK government, which had been toying with a lower minimum price of 45p in England and Wales but had backed down in 2013. While doctors’ leaders and previous chief medical officers heavily backed the measure it has been resisted by the Home Office and the drinks industry. The ECJ said Bot was “of the opinion that such a system risks 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.”
The proposal had split the drinks industry: leading companies in the pub trade supported minimum pricing because cheap alcohol in supermarkets damaged their business. Graeme Young, a competition law partner with the global law firm CMS, said: “The advocate general restates well established principles of EU law, and assuming it is followed by the court of justice, will set a very high bar for the Scottish government in terms of defending its minimum price per unit legislation in the court of session.”
The UK’s most powerful distillers, such as the gin, vodka and whisky giant Diageo, opposed it because it would increase prices of their cheaper brands, raising the starting price for a standard bottle of whisky to £14.
Branding it “un-targeted, misguided and illegal”, the SWA said Scottish government data showed a 50p minimum price would affect 33% of the alcohol bought by those in poverty and 22% of that bought by those not in poverty, so it had a regressive impact by penalising responsible drinkers.
In response to the ruling, David Frost, SWA chief executive, said: “We welcome the advocate general’s opinion on minimum unit pricing (MUP) of alcohol. 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.
“It remains important to address alcohol misuse with a range of other measures of proven effectiveness. We will continue to work closely with the Scottish Government and other stakeholders on this. There is a long-term trend of falling alcohol-related deaths and harms in Scotland which suggests that measures in place are working.”
Scotland had already banned multi-buy discounts for alcohol and introduced tougher controls on alcohol displays by supermarkets. The SWA said alcohol-related deaths had fallen 32% since their peak in 2003, while related hospital admissions had fallen 19% since 2007/08. Binge drinking figures had fallen, as had convictions for drink driving.