Minimum Alcohol Pricing in Scotch Whisky Association v Lord Advocate
Published date | 01 January 2015 |
Date | 01 January 2015 |
Pages | 106-112 |
Author | Angus MacCulloch |
DOI | 10.3366/elr.2015.0253 |
The Alcohol (Minimum Pricing) (Scotland) Act 2012 empowers the Scottish Ministers, by order, to set a minimum price per unit of alcohol (“MPU”). A draft order setting the MPU at £0.50
The Alcohol (Minimum Price per Unit) (Scotland) Order 2013. The minimum price for a product would be set using the formula: MPU × strength × volume in litres × 100. For a bottle of red wine with 13% alcohol by volume the minimum price would be £4.88 [£0.50 × 13 × 0.75 × 100]. For a typical bottle of Scotch whisky the price would be £14.00 [£0.50 × 40 × 0.70 × 100].
was immediately challenged by the Scotch Whisky AssociationThe judgment focuses on whether the MPU can be justified. It spends no time discussing how the MPU order falls within the terms of the prohibition of quantitative restrictions on trade in article 34 of the Treaty on the Functioning of the European Union (“TFEU”). Both parties agreed that the MPU order was a measure “having equivalent effect” to a quantitative restriction.
Council Directive 98/34/EC OJ 1998 L204/37, laying down a procedure for the provision of information in the field of technical standards and regulations.
Case 82/77
See AG Kokott in Cases C-197, 198 & 221/08
Case C-405/98
As these issues were not contested, the legal assertions made by the Commission in its opinion were not scrutinised. However, the opinion is less than convincing. It was not formally published or subject to any transparent debate or challenge, and yet it appears to have been decisive. If the Commission wishes to play a role in developing public policy it should surely do so in a much more transparent and accountable fashion.
The Scottish Government sought to justify the MPU order as reducing the harm to public health and public disorder caused by problematic alcohol consumption.
Para 38.
The petitioners argued that less restrictive measures were possible. Their main suggestion was a “combination of increases in excise duty and bans on below duty plus vat sales, or below cost plus vat sales”.
Para 33.
They also argued it would be wrong to allow the Scottish Parliament any “margin of appreciation” in relation to the measure.Para 34.
The approach of Lord Doherty in the...
To continue reading
Request your trial