Our public law team continues to act for the Scotch Whisky Association, spiritsEUROPE and CEEV (the European wine body) in their high-profile challenge to the Scottish Government’s flagship minimum pricing legislation. The Government concedes that this restricts the free movement of goods within the EU, by preventing 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.
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), with the CJEU hearing the case in spring 2015. It issued a ruling that agreed minimum pricing would be unlawful if alternative measures were available that would be less restrictive of free movement (such as increasing excise duty). The Inner House considered the case further last summer in light of the CJEU’s decision, and ultimately decided that the legislation was lawful.
This decision is being appealed to the Supreme Court, which will hear the case on 24 and 25 July. The key issue will be whether the Inner House correctly applied the CJEU’s ruling, particularly in relation to whether excise duty changes could be at least as effective at achieving MUP’s health aims while doing less to restrict intra-EU trade. The Court’s decision could then be issued towards the end of 2017.