Advocate General issues opinion over minimum unit pricing for alcohol

EU laws do not preclude members states from imposing a minimum retail price for alcoholic beverages to combat alcohol abuse, according to a much-anticipated opinion from the Advocate General.

However, the opinion from AG Bot went on to say – amongst other things – that member states are precluded from choosing rules that impose a minimum unit price that restricts trade within the EU and distorts competition, rather than increased taxation of those products, unless that state shows that the measure chosen has additional advantages or fewer disadvantages than the alternative measure.

The opinion is the latest stage in a long-running legal battle since the Scottish Parliament passed on 24 May 2012 the Alcohol (Minimum Pricing) (Scotland) Act 2012.

The legislation prohibited the sale of alcohol at a price below a minimum price calculated on the basis of the content in alcohol.

Scottish ministers subsequently drafted the Alcohol (Minimum Price per Unit) (Scotland) Order 2013, which fixed the minimum price per unit of alcohol at 50p.

The Scottish Government’s proposal was challenged by the Scottish Whisky Association, spiritsEUROPE and Comite Vins.

The case was referred by the Court of Session in Scotland to the Court of Justice of the European Union for answers to questions on EU law.

In his opinion Advocate General Bot proposed that the CJEU should answer the questions as follows:

“1. Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 must be interpreted as meaning that it does not preclude national rules, such as those at issue in the main proceedings, which prescribe a minimum retail price for wines according to the quantity of alcohol in the product sold, provided that those rules are justified by the objectives of the protection of human health, and in particular the objective of combating alcohol abuse, and do not go beyond what is necessary in order to achieve that objective.

2. In order to ascertain whether a measure satisfies the principle of proportionality, it is for the national court:

–        to ascertain whether it may reasonably be concluded on the evidence which the Member State is required to place before the national court that the means chosen are appropriate for the attainment of the objective pursued and that, in making that choice, the Member State did not exceed its discretion, and

–        to take into account the extent to which that measure impedes the free movement of goods when it is compared with alternative measures that would enable the same objective to be attained and when all the interests involved are weighed up.

3. When, as in the circumstances of the main proceedings, it is dealing with an application for judicial review of national rules which have not yet come into force and remain, in part, at the draft stage, the national court must, in order to assess the proportionality of those rules to the objective pursued, examine not only the material available to and considered by the national authorities when the rules were being drawn up, but also all the factual information existing on the date on which it determines the matter. There are no particular restrictions on the national court’s power to examine that material, other than those that result from the application of the inter partes principle and, subject to the principles of equivalence and effectiveness, from the national procedural provisions governing the production of evidence in judicial proceedings.

4. Articles 34 TFEU and 36 TFEU must be interpreted as meaning that they preclude a Member State, for the purpose of pursuing the objective of combating alcohol abuse, which forms part of the objective of the protection of public health, from choosing rules that impose a minimum retail price of alcoholic beverages that restricts trade within the European Union and distorts competition, rather than increased taxation of those products, unless that Member State shows that the measure chosen has additional advantages or fewer disadvantages than the alternative measure. 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 measure imposing a minimum price.”

The CJEU’s ruling is expected to be issued in 2016.

Commenting on the AG's opinion, Scotland’s 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.”

Sturgeon added: “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. 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.”

David Frost, Scotch Whisky Association 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."