Alcohol (Minimum Pricing) (Scotland) Act 2012 considered lawful


Re: Scotch Whisky Association & Ors v The Lord Advocate & Anor [2017] UKSC 76

This appeal considered whether the Alcohol (Minimum Pricing) (Scotland) Act 2012 is incompatible with European Union law, and therefore unlawful under the Scotland Act 1998.

The Supreme Court held unanimously dismissed the appeal. The Court stated that the issues had to be considered in light of the CJEU ruling which had held that, where a national court examines national legislation in the light of the justification relating to the protection of health under TFEU art 36, it is bound to examine objectively whether it may reasonably be concluded that the means chosen are appropriate and the least restrictive for the attainment of the objectives pursued from the evidence submitted by the Member State concerned. The Supreme Court held that the objective of the Alcohol (Minimum Pricing) (Scotland) Act 2012 was that its costs should be made prohibitive for drinkers, thus striking at alcohol misuse and over-consumption manifesting themselves in particular in health and social problems. It rejected the appellants’ submission that an excise or tax would be a less restrictive and equally effective, and concluded that the comparison to be undertaken was between two incomparable values: (i) health and (ii) the market and economic impact on producers, wholesalers and retailers of alcoholic drinks across the EU. As the courts should not second guess the value which a domestic legislator puts on health, the Supreme Court considered there to be limited scope for the criticism made by the appellants about the lack of EU market impact evidence.

Aidan O’Neill QC was involved in this case.