Out-Law News 2 min. read

Challenge to Scottish minimum alcohol pricing policy referred to Europe

The EU's highest court will be asked to rule on the legality of the Scottish Government's plans to introduce a minimum price per unit of alcohol sold, the Court of Session has confirmed.

The Inner House, which is Scotland's highest civil court, ruled that a challenge to the plans, brought by the Scottish Whisky Association (SWA) and other alcohol producers, raised questions of European law.

Licensing law expert Audrey Ferrie of Pinsent Masons, the law firm behind Out-Law.com, said that the referral would mean that the Scottish government's planned minimum 50p price for a unit of alcohol would face a further delay before it could be implemented. She said that the Alcohol (Minimum Pricing) (Scotland) Act had now been on the statute book for over a year.

The SWA and other trade bodies had appealed to the Inner House against a previous ruling that the proposals were within the powers of Scottish ministers and did not breach EU law by restricting free trade.

In his judgment, Lord Eassie said that there was "an evident area of uncertainty" in relation to whether minimum unit pricing was compatible with the EU's single market rules. Additionally, it "would be of help" to have the CJEU's guidance on how the test of 'justification' under the Treaty of Functioning of the European Union (TFEU) should be applied in this case, as it raised "aspects of those tests and of the role of the national court which are not clearly established".

"Having thus reached the view that not all of the issues of EU law in this case are [reasonably obvious] ... we have also come to the view that it is expedient and appropriate for this court now to request a preliminary ruling under article 267 TFEU," he said.

"In reaching that view we also bear in mind that the EU Commission has expressed an adverse opinion on the minimum unit provisions and that of the eleven member states who have expressed a view to the Commission [about this case] nine have expressed opposition to the proposals. The Court of Justice is of course a forum in which those parties may make submissions," he said.

The terms of the Court of Session's reference to the CJEU will be finalised in three weeks time after the parties have had the chance to consider its proposed reference, Lord Eassie said.

Scottish health secretary Alex Neil said that it was "regrettable" that the Scottish government would not be able to introduce the policy any sooner. It is likely to take over a year to receive the CJEU's judgment, which will then need to be interpreted by the Court of Session.

"The Scottish government has always believed that minimum unit pricing is the right thing to do and will save lives," Neil said.

"Scotland has a difficult relationship with alcohol and we need to urgently take action to tackle this problem that puts a huge burden on our society ... That is why I welcome the referral to the CJEU. Scotland is leading the way in Europe. We are confident of our case," he said.

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