Scottish judge rejects challenge to minimum unit pricing for alcohol

The Court of Session in Scotland has rejected a judicial review challenge to the legality of legislation enabling the Scottish Government to set a minimum price for units of alcohol.

The petitioners in the case – the Scotch Whisky Association, the European Spirits Association and the Comite Europeen Des Enterprises, Vins – have already vowed to appeal Lord Doherty’s ruling.

The challenge related to the legality of the Alcohol (Minimum Pricing) (Scotland) Act 2012 as well as the Scottish Ministers’ decision to make an order setting a minimum price at 50 pence per unit of alcohol.

The grounds of challenge advanced by the claimants were that:

  • the Act and the decision to set the minimum price were in breach of the Acts of Union;
  • the Act was outside the legislative competence of the Scottish Parliament and was not law because it purported to modify, or to confer power to modify, Articles 4 and 6 of the Acts of Union so far as they related to freedom of trade (Scotland Act 1998, s. 29(1), (2)(c) and Sched. 4, paragraphs 1(1), 1(2)(a);
  • the Act was outside the legislative competence of the Scottish Parliament and was not law because it was incompatible with EU law (Scotland Act 1998, s. 29 (1),(2)(d);
  • for the same reasons, the proposed Order would, if made, be outside devolved competence and be beyond the powers of the Scottish Ministers (Scotland Act 1998, ss.54(2),(3) and 57(2)).

The petitioners gave three reasons why there was incompatibility with EU law. It was said that minimum pricing:

  1. contravened Article 34 of the Treaty on the Functioning of the European Union and it was maintained that it could not be, or was not, justified under Article 36;
  2. was incompatible with the common organisation of the market relating to wine and certain other alcohol products; and
  3. was in breach of Article 6(2) of Regulation (EC) 110/2008 relating to spirits.

However, in an opinion issued today (3 May) Lord Doherty refused the petition.

The judge held that the 2012 Act was not outside the legislative competence of the Scottish Parliament; and that the proposed order setting a minimum price was within devolved competence and within the powers of the Scottish Ministers.

Lord Doherty concluded that the Acts of Union were not an impediment to the minimum pricing measures. He also found that the measures were not incompatible with EU law.

The judge went on to hold that in so far as the measures had equivalent effect to quantitative restrictions on imports (Article 34 TFEU) they were justified on the grounds of the protection of the life and health of humans (Article 36).

“In my opinion the Article 36 justification has been made out,” he said. “There is objective justification supporting the proportionality of the Act and the proposed minimum price.”

Lord Doherty also ruled that the national authorities retained competence to introduce minimum pricing notwithstanding the fact that there had been a degree of EU common organisation of the market in respect of wine, other fermented products, and agriculturally produced ethyl alcohol (Regulation (EC) 1234/2007 (as amended by Regulation (EC) 491/2009)). The measures were not prohibited by, nor did they undermine, that Regulation.

The court further held that the measures were not struck at by Regulation (EC) No. 110/2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks.

Lord Doherty said the proposition advanced by the petitioners on this front was a startling one.

“If correct, it would mean that in any case where the requirements of the Regulation are satisfied national authorities have no competence to prohibit or restrict, directly or indirectly, the import, sale or consumption of spirit drinks on any grounds whatsoever,” he said. “Thus, for example, any measure directed towards restricting excessive drinking of spirits and other alcohol on public health or public policy grounds would be unlawful.”

Lord Doherty concluded: “In my opinion the construction put forward by the petitioners is plainly wrong. The ambit of the Regulation is much more limited than the petitioners suggest.”

On referring questions of EU law to the Court of Justice for a preliminary ruling, the judge added: “I am satisfied with sufficient certainty that the petitioners' argument that minimum pricing can never be justified is ill-founded; that their arguments based upon Regulations 1234/2007 and 110/2008 fall to be rejected; and that it is unnecessary and inappropriate to refer any question to the Court of Justice for a preliminary ruling.”

A copy of the opinion can be viewed here. 

Scotland’s Health Secretary, Alex Neil, welcomed the judge’s opinion. He said: “We have always believed minimum unit pricing is the right thing to do to tackle Scotland’s problematic relationship with alcohol. Minimum unit pricing will target cheap alcohol relative to strength that is favoured by hazardous and harmful drinkers and which contributes to much of the alcohol-related harm we see in Scotland.

“We now look forward to being able to implement minimum unit pricing and making that transformational change in Scotland’s relationship with alcohol.”

Gavin Hewitt, chief executive of the Scotch Whisky Association, expressed disappointment at refusal of the petition.

He said: “We are surprised at the ruling in light of 30 years of European case law on minimum unit pricing (MUP). We will be appealing against this decision and we remain confident of our position.

"The view from Europe is very different to that expressed by the court and we are not alone in having concerns about the legality of MUP. We are joined in our legal action by spiritsEUROPE and Comite Vins. The European Commission and more than 10 member states have expressed their concerns that MUP contravenes European Union trading rules and their opposition to the Scottish proposals.”

Hewitt added: “We have consistently opposed MUP so our decision to appeal should not come as a surprise. The Scottish Government has agreed to not introduce MUP until the legal process, including appeals, is complete."