First minister will ‘vigorously’ defend policy after European court of justice advocate general said plans risk infringing EU law on free trade

Nicola Sturgeon has said she will “vigorously” defend her plans to fix a minimum price for alcohol in Scotland despite a European court being told that the policy could be discriminatory and breach EU free trade rules.



Scotland’s first minister said she believed the advice from the European court of justice’s (ECJ) advocate general, Yves Bot, to the court of justice would ultimately give the Scottish government a fresh chance to win legal approval for the measure despite heavy opposition from the whisky industry and other member states.

The case would eventually come back to Scotland’s civil court, the court of session, and Sturgeon said: “We believe minimum unit pricing would save hundreds of lives in coming years and we will continue to vigorously make the case for this policy.”

In a major blow to Sturgeon’s government, Bot has advised the ECJ that he believes her flagship policy of setting an across-the-board 50p minimum price per unit of alcohol, which would raise prices for all consumers, clearly breached EU competition and free trade laws.



The court’s final decisions rarely contradict opinions from the advocate general.

Bot said the measure could be justified on public health grounds – the central justification put forward by Sturgeon – but only if the Scottish government could prove it was more effective and less damaging than other measures such as targeted taxation, and was a measure of last resort.

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“I feel that, having regard to the principle of proportionality, it is difficult to justify the rules at issue, which appear to me to be less consistent and effective than an ‘increased taxation’ measure and may even be perceived as being discriminatory,” Bot said.

Bot said an EU member state can use minimum pricing to restrict trade and distort competition on health grounds but “only on condition that it shows that the measure chosen [minimum pricing] has additional advantages or fewer disadvantages than the alternative measure.”

His opinion will heavily influence a decision by the ECJ, which is studying a legal challenge to the policy on competition and free trade grounds from the Scotch Whisky Association (SWA), several European drinks industry groups and nine member states.

The court’s decisions rarely contradict opinions from the advocate general, and his analysis was welcomed by the SWA. “The opinion encourages us in our long-held view that minimum unit pricing is illegal when there are less trade restrictive measures available,” said David Frost, the association’s chief executive.

But Sturgeon said it was highly significant that Bot had confirmed that minimum pricing was not of itself illegal under EU law – a point made forcibly by health campaigners who back the policy on Thursday.

“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 to reduce the harm that cheap, high-strength alcohol causes our communities,” she said.

Although Scottish government data shows alcohol sales are falling following other control measures, Sturgeon said too many Scots were dying from alcohol abuse.

The latest statistics showed that alcohol-related deaths in Scotland rose last year by 5% to 1,152 deaths. It was the third year in a row the death rate had increased after a long-term decline from a high of 1,546 in 2006 – well above the rate in the rest of the UK.

In 2013, nearly 30 men out of every 100,000 died of alcohol-related diseases in Scotland, against a UK average of 19 deaths per 100,000.

Eric Carlin, director of Scottish Health Action on Alcohol Problems, set up by Scotland’s royal medical colleges, said: “This is a good day for public health. The advocate general has made clear that the Scottish minimum unit pricing policy is justified as a regulatory measure that is permitted in European law to work alongside taxation to reduce the lives being destroyed and early deaths causes to Scots every day by cheap alcohol.”

The Scottish government could now argue in court that it has no other powers available to it because alcohol taxation is controlled by the UK government, leading to further legal battles in the Scottish courts and a fresh constitutional row over Holyrood’s tax powers.

However, competition law experts said the advocate general’s ruling actually set very tough tests for Sturgeon’s policy. Bot said Scottish ministers had rejected the tax route to the court, but then offered no serious evidence that using taxes would have a more damaging impact than minimum pricing.

The ECJ said Bot was “of the opinion that such a system risks infringing the principle of the free movement of goods and would only be legal if it could be shown that no other mechanism was capable of achieving the desired result of protecting public health.”

Graeme Young, a competition law partner with the global law firm CMS, said: “The advocate general restates well established principles of EU law, and assuming it is followed by the court of justice, will set a very high bar for the Scottish government in terms of defending its minimum price per unit legislation in the court of session.”