Alcohol Pricing, EU Law and the Court of Session

Angus MacCulloch

There has been debate about the legality of minimum per-unit (MPU) alcohol pricing in the UK, since the SNP-led Scottish Government first suggested adopting such a measure back in 2009. I contributed to the debate on several previous occasions, but now there is a little more substance to be discussed after the Outer House of the Court of Session, on 3 May 2013, handed down its judgment in The Scotch Whisky Association and Ors, Re Judicial Review of the Alcohol (Minimum Pricing)(Scotland) Act 2012 [2013] CSOH 70. The judgment answers some of the questions posed, but, sadly, it leaves yet more unanswered. I doubt this will be the last that we see of minimum alcohol pricing before the courts.

The SWA petitioned the court challenging the legality of the Alcohol (Minimum Pricing)(Scotland) Act 2012 and a proposed Order under that Act which would have set the minimum price at 50p per unit. Under that Order the minimum price for a product would be set using the formula: MPU x strength x volume in litres x 100. For one of my favourite red wines this would mean a minimum price of £5.62 per bottle (£0.50 x 15% x 0.75 x 100). For a can of Stella Artois the minimum price would be £1.14 (£0.50 x 5.2% x 0.44 x 100). Continue reading

Minimum Alcohol Pricing and EU Law

Angus MacCulloch

The announcement regarding minimum alcohol pricing on Friday 22nd March was unusual in a number of respects. The UK Govt does not usually make significant announcements on Friday, as most MPs are away from Westminster on constituency business, but it also indicated a reversal of their previous policy. Plans for the introduction of a minimum price per unit are already well advanced in Scotland but the Westminster Govt is a more recent convert. As soon as the proposal was announced it was clear the implementation of the policy was likely to come under legal challenge from the drinks industry. The Telegraph, The Guardian and the Daily Mail all indicate that the drinks industry had ‘legal advice’ that the minimum pricing would be contrary to EU Law.

But does this claim stand up to scrutiny, or is this simply the familiar use, or abuse, of EU law as a non-specific political bogeyman?

The media reporting lays the basis of these claims at the door of the EU competition rules, but the wording also suggests a health justification of the sort seen in the Treaty’s free movement provisions. I’ll consider both of those possibilities.

Continue reading