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Minimum pricing: all to play for

Philip Kolvin QC explains the European Court's judgment concerning the Scottish Government's alcohol pricing proposal.

Both sides claimed victory from the long-awaited judgment of the European Court on the Scottish Government's proposal to set a minimum price for alcohol of 50p per unit.

The headlines are that it is a score draw. Here is the summary

  1. Minimum pricing is an obstacle to the free movement of goods.
  2. It is justifiable on grounds of the protection of health only if it is proportionate to the objective pursued
  3. Minimum pricing is an appropriate means of promoting health both at population level and among hazardous drinkers.
  4. But it is  not proportionate where it is possible for health to be protected equally effectively by tax measures.
  5. This is because tax increases can be absorbed by sellers, who remain free to sell at a price of their choosing.
  6. The Scottish court must now decide whether measures other than minimum pricing, such as tax measures, are as effective in protecting health. If they are, minimum pricing is disproportionate.
  7. In making that decision, the Scottish court will have to examine all the evidence provided by the Scottish Government, and not just that which was available when it passed the minimum pricing legislation

Reports in the press of the demise of minimum pricing are therefore exaggerated. More litigation awaits. It will all be over by next Christmas.