Government plans for minimum alcohol unit price could affect free movement of goods says ECJ

The Scottish government’s plans to create a minimum unit price for alcohol could adversely affect the free movement of goods the Advocate General to the European Court of Justice has said.

Yves Bot said the plans would only be legal where there was no other option, such as increasing taxes, to achieve the same result – safeguarding public health.

Legislation to establish a minimum unit price of 50p was passed in May 2012 at Holyrood but a legal challenge brought by the Scotch Whisky Association (SWA) argued this was in breach of EU law.

Lord Doherty in the Court of Session rejected the challenge in 2013 but, following an appeal hearing, the case was referred to Luxembourg last year.

Typically, the court’s final judgment is the same as that of the Advocate General.

During the legal dispiute the Scottish government has been unable to implement the policy, which it argues is essential to deal with Scotland’s “unhealthy relationship with drink”.

The case will be remitted to the Court of Session for a final decision.

Linda Bauld, professor of health policy at the University of Stirling’s Institute for Social Marketing said increasing the price would prevent deaths.

Speaking to Scottish Legal News, Stephen McGowan, partner and head of licensing in Scotland at TLT Solicitors said: “Although we await the ECJs final ruling, if they follow the opinion of the Advocate General‎ this suggests that minimum pricing should only be effected if less restrictive alternatives have been explored and ruled out, it will be interesting to see how the Court of Session, and in turn the Scottish government, react to the final ruling.

“The ‘alternatives’ point was recognised by the Court of Session so this does not yet mean the matter is at an end.

“Speculating on whether minimum pricing legislation is not to proceed, one wonders what alternatives Holyrood would look to take forward.”

Responding to the news, chair of BMA Scotland Dr Peter Bennie said: “Figures that have been published in recent days show that both the volume of alcohol sales and the number of alcohol related deaths increased in 2014.

“We know from all the evidence that minimum unit pricing will help to save lives, lowering consumption and reducing the damage caused to the most harmful drinkers.

“There is still some way to go in the legal process holding up implementation and even at this stage we would encourage the Scotch Whisky Association to act in the public interest by ending their efforts to delay minimum unit pricing in the courts.”