Brodies’ public law & regulatory team continues to act for the Scotch Whisky Association (SWA), spirits EUROPE and CEEV (the European wine body) in their high-profile challenge to the Scottish Government’s Alcohol (Minimum Pricing) (Scotland) Act 2012 (the Act).

The Scottish Government does not dispute that the Act’s minimum pricing scheme restricts the free movement of goods within the EU, as it prevents cheaper imports from competing with more expensive products. The argument is whether the policy can be justified on public health grounds, or is unlawful because it would be ineffective and/or disproportionate. In 2014 the Inner House of the Court of Session referred a number of EU Law questions to the Court of Justice of the European Union (CJEU), asking it to confirm how the relevant legal tests should be applied.

“The argument is whether the policy can be justified on public health grounds or is unlawful because it would be ineffective and/or disproportionate.”

The CJEU heard arguments in May last year, and issued its judgment just before Christmas. The Court was broadly supportive of the challengers’ arguments, agreeing that minimum pricing is unlawful under EU law if there are alternative measures available which would be less restrictive of the free movement of goods, such as increases in excise duty that would preserve the ability of lower-cost producers to compete with higher-cost ones. In particular, the Court confirmed that the key test was whether an alternative could be expected to produce at least the same health benefits as minimum pricing – i.e. the benefits did not have to be identical, meaning that excise duty (for example) could not be dismissed on the basis that it would produce more benefits. The Court’s decision is here, with a summary here.

The case is now back before the Inner House to apply EU law as clarified by the CJEU, including comparing the anticipated effects on both public health and intra-EU trade of the alternative measures (including excise duty) versus minimum pricing. A two day hearing will take place on 7 and 8 June this year.