The Office of the Advocate General (OAG), the UK government's Scottish legal team, has referred the case to the European Court of Justice.
SWA chief executive David Frost said: “We welcome the Advocate General’s opinion on minimum unit pricing (MUP) of alcohol. The opinion encourages us in our long-held view that MUP is illegal when there are less trade restrictive measures available.
“We await the Court of Justice’s final ruling. It remains important to address alcohol misuse with a range of other measures of proven effectiveness. We will continue to work closely with the Scottish Government and other stakeholders on this. There is a long-term trend of falling alcohol-related deaths and harms in Scotland which suggests that measures in place are working.”
The OAG provides legal advice, drafting and litigation services to the UK government in relation to Scotland.
The SWA, along with spiritsEUROPE and Comite Vins, took legal action against MUP in 2012. The case was referred to the Court of Justice of the European Union (CJEU) by the Scottish Court in 2014 for a ruling on questions of EU law. Several member states – Spain, Portugal, Bulgaria and Poland – raised similar concerns at the CJEU’s hearing in May.
The CJEU’s ruling is likely in the new year. Once it has received the ruling of the Court of Justice, the Court of Session will decide on the next steps.
The SWA is opposed to minimum unit pricing (MUP) because:
- MUP will not tackle alcohol misuse effectively. Research for the Scottish Government shows it will not reduce the number of people drinking at hazardous and harmful levels.
- The Scottish Government’s own data demonstrates that alcohol sales have been falling in Scotland since 2009.
- Minimum pricing was first ruled illegal as a barrier to trade by the Court of Justice of the European Union (CJEU) more than 30 years ago. The court has consistently ruled against minimum pricing since.
- MUP will set a precedent for equally ineffective and illegal measures by other countries which could severely damage the scotch whisky industry’s export markets and the Scottish economy.
Paul Chase, author and drinks’ industry commentator on alcohol policy and public health, endorsed the same view throughout the legal battle, arguing that minimum pricing will not reduce excessive consumption but will instead penalise responsible, moderate drinkers.
The success of the legal challenge in today’s ruling, is likely to mean that Scotland will not be able to implement the legislation of 2012. European Court’s most senior legal official ruled that minimum unit pricing was an infringement of EU free trade rules.
According to Chase, the Advocate General’s opinion found that fixing a legal price for alcoholic beverages could only be justified if the Scottish Government could prove that alternative means, such as increasing taxation, would not be a “suitable means of curbing excessive consumption”. Chase said it was “difficult to justify” minimum pricing as it appeared “less efficient and effective” than increasing taxes and may even be perceived as discriminatory.
Chase, who has spent years campaigning for transparency on government and health lobby statistics, detailing evidence of problem inflation in his book ‘Culture Wars and Moral Panic - the story of alcohol and society’ said: “I welcome today’s ruling by the European Court of Justice (ECJ) which looks set to reject minimum unit pricing for alcohol. The Scottish Government’s belief that putting a floor under alcohol prices would significantly reduce excessive consumption and health harms was never an evidence-based policy, but a piece of policy-based evidence.
“No matter how many false statistics they tried to crow-bar into the junk-science mathematical models used to justify this measure, the Advocate General has, with his opinion today, seen through this false prospectus and rejected government price-fixing of beverage alcohol.”
“The European Court of Justice in Luxembourg has to next issue its final judgement but follows the Advocate General’s opinion in the vast majority of cases. This will hopefully prevent a measure that would have raised the price of nearly 50% of beverage alcohol products sold in the off-trade, and penalised responsible, moderate drinkers as well as impacting disproportionately on people on low incomes, such as pensioners, without really impacting on the consumption of dependent drinkers.”
The judgement is likely to come from Luxembourg within the next six months and will then be referred back to the Court of Sessions in Edinburgh for a final ruling which is expected late 2015 or early 2016.