European Court of Justice advocate general Yves Bot said in an official opinion that the Minimum Unit Pricing policy, intended to be introduced in Scotland and other European countries, is not precluded by EU law.
In the official opinion, the European Court of Justice (ECJ) said Minimum Unit Pricing (MUP) would only be legal if it could be shown that no other mechanism could deliver the desired public health benefits. He also cautioned that MUP risked infringing EU rules on free trade and the principle of free movement of goods. In the official opinion he said:
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.
Nicola Sturgeon, First Minister of Scotland reacts
Scotland’s First Minister Nicola Sturgeon welcomed the opinion, saying it confirmed that minimum unit pricing was not precluded by EU law.
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.
The Guardian reports that Mrs Sturgeon said she believed the advice from the ECJ’s advocate general 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 alcohol industry. 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.
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.
Bot has advised the ECJ that he believes the MUP policy 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. The ECJ’s final decisions rarely contradict opinions from the advocate general.
The MUP policy
The Minimum Unit Pricing policy by the Scottish governments intends to setting an across-the-board 50p minimum price per unit of alcohol. The Scottish Parliament had passed legislation in 2012 to introduce MUP for alcohol in Scotland.
But the Scottish government, which has argued that minimum pricing is vital to address Scotland’s unhealthy relationship with alcohol, has been unable to implement the policy while the legal process is ongoing.
The BBC reports that the MUP policy had been challenged in 2013 by the Scottish Whisky Association (SWA), 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. But following an appeal hearing, the case was referred to the European court in Luxembourg last year. 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.
Member of the Scottish Parliament Patrick Harvie, Scottish Green Party, criticised the alcohol industry and its lobby groups for “delaying the introducing of minimum pricing for alcohol”.
The stymying of minimum pricing by a lobby group representing big [alcohol] multinationals mirrors the tactics of the tobacco industry when it tried to stop life-saving legislation.
Alcohol Focus Scotland statement
Jennifer Curran, the Acting Deputy Chief Executive of Alcohol Focus Scotland, said in a statement:
Today’s opinion from the Advocate General hopefully means we are one step closer to implementing minimum unit pricing in Scotland. Taxation alone simply cannot deliver the same benefits that minimum pricing can in raising the price of the cheapest alcohol that causes the most harm.
More than 2,500 Scots have died because of alcohol since minimum pricing was passed by the Scottish Parliament in May 2012. In the last year we have seen a concerning rise in alcohol sales and deaths, underlining the need to implement minimum pricing as soon as possible. […]
Evidence shows that a minimum unit price of 50p will protect health, cut crime and save lives.
By taking this legal action in the first place, the Scotch Whisky Association (SWA) have undermined the collective view of the Scottish Parliament and they are costing taxpayers thousands of pounds in legal costs. It is quite clear that the multinational companies represented by the SWA prioritise their profits over people’s lives.
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For further reading:
Alcohol Focus Scotland responds to today’s opinion on minimum unit pricing from the Advocate General of the European Court of Justice
Institute of Alcohol Studies press statement: “IAS welcomes the European Advocate General’s opinion on MUP“
Scottish Health Actions on Alcohol Problems statement: SHAAP & Medical Professions welcome ECJ Advocate General opinion