Is minimum alcohol unit pricing in Scotland contrary to EU law?

Scotch Whisky Association and others (Appellants) v The Lord Advocate and another (Respondents)

On appeal from the Court of Session (Scotland)

Scotland’s minimum unit pricing saga will come under the scrutiny of Supreme Court justices this July.

The issue in this case is whether the Alcohol (Minimum Pricing)

(Scotland) Act 2012 is incompatible with European Union law and therefore unlawful under the Scotland Act 1998.

The 2012 Act amended the Licensing (Scotland) Act 2005 by introducing a new paragraph 6A(1) to Schedule 3, requiring that “Alcohol must not be sold … at a price below its minimum price”.

The Scottish ministers have prepared a draft order specifying a minimum price per unit of 50 pence but neither the 2012 Act nor the order have been brought into force pending these proceedings.

The appellants presented a petition for judicial review challenging the lawfulness of the 2012 Act. The remaining grounds of challenge are that minimum unit pricing is disproportionate as a matter of EU law, operating as a quantitative restriction on the free movement of goods and impacting on the proper functioning of the Common Agricultural Policy’s Common Market Organisation on the production, marketing and sale of wine.

The appellants argue that alternative pricing measures exist which would be less disruptive of free trade and less distortive of competition across the EU single market, and would have at least an equivalent level of effectiveness in achieving the aim of the Scottish government to improve public health.

The claim was rejected at first instance. An Extra Division of the Inner House hearing the appellants’ reclaiming motion made a preliminary reference to the Court of Justice of the EU. Following a ruling from the CJEU, the First Division of the Inner House refused the reclaiming motion.