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Plans by the Scottish Government to introduce a minimum price of 50p per unit of alcohol are likely to breach EU rules on free trade, according to one of the EU Court's Advocates General.
In his opinion, Advocate General Yves Bot stated that minimum pricing would interfere with the EU's free movement of goods rules and could only be justified if proportionate and if no other, less restrictive means, could be found to achieve the desired result (protection of public health):
"A member state can choose rules imposing a minimum retail price of alcoholic beverages, which restricts trade within the European Union and distorts competition, rather than increased taxation of those products, only on condition that it shows that the measure chosen presents additional advantages or fewer disadvantages by comparison with the alternative measure."
This is in line with the EU Court's ruling on minimum pricing for tobacco.
The Scottish Government's policy is being challenged by the Scottish Whisky Association (and the SWA is supported by nine other member states including France, Spain and Bulgaria). The challenge was unsuccessful in the lower courts in Scotland. However, the highest civil court in Scotland referred the issue to the EU Court because it raised questions of EU law.
The opinion of the Advocate General is not binding on the EU Court, but it is rare for the Court to depart from such opinions. Once the EU Court has made its decision, the matter will be referred back to the Scottish court so that the (clarified) EU law can be applied to the facts: the Scottish court will have the task of identifying the precise objectives of the Scottish Government's policy, and weighing up the relative advantages and disadvantages of both a minimum price and an overall increase in tax.
If you are interested in these issues, please do not hesitate to contact John Cassels at john.cassels@fieldfisher.com