Alcohol minimum price only legal if no other health measure available: AG
Scottish Parliament legislation setting a minimum price for the sale of alcohol will infringe European Union law unless it can be shown that no other mechanism is capable of delivering the desired health benefits, according to an advocate general of the European Court of Justice.
Yves Bot has delivered his opinion in the action brought by the Scotch Whisky Association, supported by other alcohol producers, challenging the legality of the Alcohol (Minimum Pricing) (Scotland) Act 2012 as contrary to EU free trade law.
He 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.
“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”, he stated.
It would be for the Scottish Government to prove that increasiong taxation was not a suitable means of curbing excessive consumption of alcohol.
He concluded: “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 case was referred to the Court of Justice of the European Union by the Court of Session last year. The advocate general's opinion is accepted by the court in about 80% of cases. It will be a further few months before the court gives its decision, which will be a statement of the legal principle that applies, and the case will then be returned to the Court of Session to apply the ruling to the facts of the case.
The Scottish Government argues that minimum pricing is vital to address Scotland's "unhealthy relationship with drink", but the Scotch Whisky Association claims that the measures in the 2012 Act are not backed by evidence and will act as a barrier to trade.
David Frost, the Association's chief executive, commented: “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."
He added: “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.”