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Minimum alcohol price in Scotland could breach EU law, court rules Minimum alcohol price in Scotland breaches EU law, court rules
(34 minutes later)
The European court of justice (ECJ) has ruled that the Scottish government’s plan for a minimum alcohol price would breach EU law if less restrictive tax measures could be introduced. The European court has ruled that the Scottish government’s plan to impose a blanket minimum price for alcohol is in breach of EU free-trade laws.
Judges at the Luxembourg court concluded that the policy would restrict the market, which could be avoided by the introduction of an alternative tax measure designed to increase the price of alcohol. In a significant blow to one of Nicola Sturgeon’s flagship policies, the European court of justice has said the policy could be justified on health grounds under EU law only if it was more proportionate and effective than using general taxation.
They said it was ultimately for the national court of an EU state to determine whether other measures would be as effective in achieving the desired public health benefit. Using taxation would still allow retailers to set their own prices, and compete against each other. Imposing a 50p per unit minimum price on alcoholic drinks – a policy passed with cross-party support by the Scottish parliament – would prevent retailers from doing so.
Scotch Whisky Association (SWA) officials mounted a legal challenge alongside other European wine and spirits producers after legislation to introduce minimum pricing was passed by the Scottish parliament in 2012. Related: Nicola Sturgeon vows to fight for minimum alcohol price in Scotland
The case will now be referred back to the court of session in Edinburgh for a final decision.This is a breaking news story, please check back for further updates It returned the case to Scotland’s civil courts for a final ruling, but said: “The court of justice considers that the effect of the Scottish legislation is significantly to restrict the market, and this might be avoided by the introduction of a tax measure designed to increase the price of alcohol instead of a measure imposing a minimum price per unit of alcohol.”
The court said it noted that the Scottish legislation “pursues a twofold objective, namely to reduce not only the hazardous consumption of alcohol, but also, more generally, the Scottish population’s consumption of alcohol. Although the imposition of a minimum price per unit intended to increase the price of cheap alcohol is an appropriate means of reducing the consumption of alcohol, a practice such as that adopted in Scotland is not justified where it is possible for health to be protected equally effectively by less restrictive tax measures.”
The ruling echoes an opinion by the court’s chief legal adviser in September that the policy clearly breached European free trade and competition rules, and could only be justified if it was better than using targeted taxation.
The ECJ ruling is the latest twist in a long-running legal battle led by the Scotch Whisky Association after the Scottish parliament voted in favour of minimum pricing in 2012. Ministers set the minimum price at 50p per unit of alcohol, a measure which would see whisky priced at a minimum of £14 a bottle.
The SWA has been backed by two major European producers’ associations – the spirits producers confederation and the winemakers association – and nine EU member states, including France and Spain. They argue the measure is disproportionate and unjustified, as it penalises every consumer and restricts free competition.
For the SNP government in Edinburgh, this raises the central constitutional argument over the devolved parliament’s powers. While Holyrood is responsible for health policy in Scotland and has a separate legal system, it cannot control alcohol taxation.
After David Cameron initially floated a minimum price of 40p a unit for England and Wales under pressure from the medical profession and the police, the UK government has also rejected minimum pricing, leaving the Scottish government isolated.
The Scottish government argues that this gives it limited scope for controlling prices to protect public health, other than through minimum pricing, although it has already banned bulk discounts for alcohol and two-for-one offers by Scottish retailers.
Related: The Guardian view on drinking culture: statistics, myths and alcohol abuse | Editorial
Yves Bot, advocate general to the European court of justice, told the court that imposing a blanket minimum price on all alcoholic drinks could be allowed on health grounds if it was not disproportionate – a view welcomed at the time by Nicola Sturgeon, the first minister.
David Frost, chief executive of the Scotch Whisky Association, said the association, which had led the legal challenge, welcomed the ruling. He said: “This settles EU law issues once and for all. The court has confirmed that minimum unit pricing is a restriction on trade, and that it is illegal to choose [it] where there are less restrictive ways of achieving the same end.”
Frost said the industry wanted to tackle Scotland’s higher-than-average death rate from alcohol abuse by collaborating on “practical measures that actually work. Alcohol-related deaths have fallen by a third over the last decade in Scotland, which suggests we are already on the right path. We remain committed to working closely with the Scottish government and everyone else with an interest.”