The Scotch Whisky Association and Others v The Lord Advocate The Advocate General for Scotland

The day before my birthday and an extra dry post <excuse the pun>  This was news regarding Scotland’s desire to implement Minimum Unit Pricing and how the Scottish Whisky Association on behalf of the drinks industry has tied them up in the European Central Court in an attempt to delay or stop this legislature completely.

This is exactly the kind of law that TTIP, if allowed, will override and therefore prioritise the rights of the corporation above those of the Scottish govt.  Meaning that corporations would be able to sue govts for lost revenue irrespective of the public health issue.  In fact I would cynically argue the the industry is stalling for time in the hope that TTIP will be approved thereby making MUP illegal under these new regulations.  It is all very insidious …..

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.

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.

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.”

And here’s the full legal document should you wish to peruse:

The Scotch Whisky Association and Others v The Lord Advocate The Advocate General for Scotland

This was Alcohol Policy UK’s view:

Pro and anti minimum pricing groups claim good news over latest ruling

The European Court of Justices’ Advocate-General (AG) Lord Bot delivered his Opinion on Scotland’s bid to implement Minimum Unit Pricing (MUP). The views of the AG though were claimed as good news by both opponents and supporters of MUP, demonstrating the complexity of the challenge in the context of EU law.

Apologies for the brevity of a pre-celebration day post but this issue bothers me very much and a reminder about MUP and the lengths the industry will go to protect their profits NOT our health is important.

“The drinks industry is reliant, 70% of its shareholder value comes from people who are drinking too much and a third of its shareholder value comes from people who are drinking far too much. Quite simply, it’s not prepared to lose that market share.”

Professor Nick Sheron