Court says plan passed by Holyrood justified only if it was more proportionate and effective than tax measures

The European court has ruled that the Scottish government’s plan to impose a blanket minimum price for alcohol is in breach of EU free-trade laws.



In a significant blow to one of Nicola Sturgeon’s flagship policies, the European court of justice (ECJ) said the policy could be justified on health grounds under EU law only if it was more proportionate and effective than using general taxation.

Using taxation would still allow retailers to set their own prices, and compete against each other. Imposing a 50p per unit minimum price on alcoholic drinks – a policy the Scottish parliament passed with cross-party support – would restrict retailers in doing so.

Nicola Sturgeon vows to fight for minimum alcohol price in Scotland Read more

The ECJ returned the case to Scotland’s civil courts for a final ruling, but said: “The court of justice considers that the effect of the Scottish legislation is significantly to restrict the market, and this might be avoided by the introduction of a tax measure designed to increase the price of alcohol instead of a measure imposing a minimum price per unit of alcohol.”

The court said it noted that the Scottish legislation “pursues a twofold objective, namely to reduce not only the hazardous consumption of alcohol, but also, more generally, the Scottish population’s consumption of alcohol”.

“Although the imposition of a minimum price per unit intended to increase the price of cheap alcohol is an appropriate means of reducing the consumption of alcohol, a practice such as that adopted in Scotland is not justified where it is possible for health to be protected equally effectively by less restrictive tax measures.”

The Scottish health secretary, Shona Robison, said her government was looking forward to the case returning to the Scottish courts in the new year but, with the court warning that minimum pricing was a significant restriction on a free market, struck a cautious tone.

“While we must await the final outcome of this legal process, the Scottish government remains certain that minimum unit pricing is the right measure for Scotland,” Robison said.



“We believe it is the most effective mechanism for tackling alcohol misuse and reducing the harm that cheap, high-strength alcohol causes our communities. We maintain that minimum unit pricing would target heavy drinkers as they tend to drink the cheap, high-strength alcohol that will be most affected by the policy.”

Alcohol campaigners were far more upbeat about the ruling. Eric Carlin, director of Scottish Health Action on Alcohol Problems, which represents many senior medical and doctors’ colleges, said it was welcome.



It had effectively confirmed that minimum unit pricing (MUP) was legal because it did not in itself contravene EU law, Carlin said.

“We welcome the ECJ opinion, which effectively confirms that the Scottish minimum unit pricing policy has to be justified as a regulatory measure to work alongside taxation increases. Taxation increases, incidentally, are also consistently opposed by the opponents of MUP.

“We hope that the Scottish courts will now move quickly to gather evidence to conclude this case and that the Scottish government will then implement this key policy without delay.”

Peter Bennie, chairman of the British Medical Association Scotland, said the ruling “puts Scotland a step closer to implementing minimum pricing”. He said the case for minimum pricing “has always been based on the fact that it achieves what taxation cannot when it comes to reducing the harm caused by alcohol, so the decision of the European court setting out the test that must be applied to the policy is a welcome one”.



The ruling echoes an opinion by the court’s chief legal adviser in September that the policy clearly breached European free trade and competition rules, and could only be justified if it was better than using targeted taxation.

It is the latest twist in a long-running legal battle led by the Scotch Whisky Association (SWA) after the Scottish parliament voted in favour of minimum pricing in 2012. Ministers set the minimum price at 50p per unit of alcohol, a measure which would see whisky priced at a minimum of £14 a bottle.

The SWA has been backed by two major European producers’ associations – the spirits producers’ confederation and the winemakers’ association – and nine EU member states, including France and Spain. They argue the measure is disproportionate and unjustified, as it penalises every consumer and restricts free competition.

For the SNP government in Edinburgh, the issue is part of the central constitutional argument over the devolved parliament’s powers. While Holyrood is responsible for health policy in Scotland and has a separate legal system, it cannot control alcohol taxation.

After David Cameron initially floated a minimum price of 40p a unit for England and Wales under pressure from the medical profession and the police, the UK government has also rejected minimum pricing, leaving the Scottish government isolated.

The Scottish government argues that this gives it limited scope for controlling prices to protect public health, other than through minimum pricing, although it has already banned bulk discounts for alcohol and two-for-one offers by Scottish retailers.

The Guardian view on drinking culture: statistics, myths and alcohol abuse | Editorial Read more

Yves Bot, advocate general to the European court of justice, told the court that imposing a blanket minimum price on all alcoholic drinks could be allowed on health grounds if it was not disproportionate – a view welcomed at the time by Sturgeon, the Scottish first minister.

David Frost, chief executive of the SWA, said the association welcomed the ruling. He said: “This settles EU law issues once and for all. The court has confirmed that minimum unit pricing is a restriction on trade, and that it is illegal to choose [it] where there are less restrictive ways of achieving the same end.”

Frost said the industry wanted to tackle Scotland’s higher than average death rate from alcohol abuse by collaborating on “practical measures that actually work”. He added: “Alcohol-related deaths have fallen by a third over the last decade in Scotland, which suggests we are already on the right path. We remain committed to working closely with the Scottish government and everyone else with an interest.”