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Published online by Cambridge University Press: 20 January 2017
Legislation passed by the Scottish Parliament in June 2012 to impose minimum unit pricing for alcohol sold in Scotland as part of a strategy to tackle alcohol-related harm has yet to be implemented pending the outcome of a challenge to its legality under EU law before the Scottish Courts brought by three associations of producers of wines and spirits, namely the Scotch Whisky Association, the Confédération Européenne des Producteurs de Spiritueux and the Comité de la Communauté économique européenne des Industries et du Commerce des Vins, Vins aromatisés, Vins mousseux,Vins de Liqueur et autres Produits de la Vigne. The first instance court in Scotland rejected the challenge in May 2013, but Scotland's appeal court decided in April 2014 that before ruling on the producers’ appeal, it should refer a number of questions to the Court of Justice of the European Union (“CJEU”). The CJEU is not expected to rule until late 2015 at the earliest and so the ultimate outcome before the Scottish courts is not likely to be known until 2016.
1 CEPS, also known as the European Spirits Organisation.
2 Abbreviated to CEEV, Comité Européen des Entreprises Vins, and also known as the European Wine Companies Committee.
3 asp 4, 2012.
4 The new requirement is to be inserted pursuant to section 1(2) of the 2012 Act as paragraph 6A in schedule 3 (premises licences: mandatory conditions) of the Licensing (Scotland) Act 2005, asp 16.
5 Paragraph 6A(3).
6 Paragraph 6A(4). The Scottish Ministers are the devolved government in Scotland.
7 Under the draft Alcohol (Minimum Price per Unit) (Scotland) Order 2013. There has been no proposal to amend that price should the judicial review ultimately fail and that appears most likely to be the price applied. However, the Scottish Ministers do, of course, retain a discretion to fix the price at a different level when an Order is finally made.
8 0.50 x 0.13 x 0.75 x 100 = 4.875.
9 0.50 x 0.08 x 1 x 100 = 4.
10 0.50 x 0.40 x 0.7 x 100 = 14.
11 Section 2 of the 2012 Act.
12 Section 3 of the 2012 Act. This also sets out provisions as to the content of such report and the categories of persons to be consulted in the preparation of the report, which includes appropriate persons with functions in relation to health, prevention of crime, education, social work and children and young people.
13 The Bill was introduced into the Scottish Parliament in October 2011 and passed by the Scottish Parliament in May 2012 with only one vote against. Royal Assent was given in June 2012: [2013] CSOH 70, [12].
14 The court allowed an application to intervene against the petitioners brought by Alcohol Focus Scotland: [2012] CSOH 156, Lord Hodge. The intervention was by way of written submission only. The same group was later denied permission to intervene on appeal for the purpose of addressing submissions in support of the legislation after the decision to refer to the CJEU had been made: [2014] CSIH 64.
15 Imperial Tobacco v Lord Advocate [2012] UKSC 61; 2013 SLT 2.
16 Scotch Whisky Association and others v Lord Advocate [2013] CSOH 70; 2013 SLT 776; [2013] 3 CMLR 34. See Bartlett [2014] EJRR 73 Distilling Prospects: Reflections on the Proportionality of Minimum Unit Pricing under EU Law. See also MacCulloch Scottish Minimum Alcohol Pricing and EU law, Lancaster University law School Working Paper, January 2014, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2394018.
17 The grounds based on breach of the Act of Union 1707 were not pursued on appeal.
18 This seems odd when one considers a challenge on similar grounds to a ban on tobacco vending machines in Scottish legislation: Sinclair Collis v Lord Advocate [2012] CSIH 80, [2013] SC 221. In that case, the Extra Division of the Inner House upheld the decision of Lord Doherty in the Outer House to reject a petition for judicial review of the compatibility of the ban with EU law. Both judgments were fully reasoned.
19 The acte clair doctrine relieves a national court of final instance of the obligation to make a reference on a material question of EU law to the CJEU under Article 267 TFEU if the question of interpretation has already been addressed in an earlier case or if the correct application of EU law is so obvious as to leave no scope for any reasonable doubt by any national court: see Case 283/81 CILFIT v Ministry of Health [1982] ECR 3415.
20 It is open to question whether the court was correct as to the view to be taken by the Supreme Court as to whether to refer. The Supreme Court has in recent years displayed considerable willingness to decide matters of EU law without making a reference to the CJEU. The current approach was pithily expressed by Lord Mance JSC in Bloomsbury International v DEFRA [2011] UKSC 25; [2011] 1 WLR 1546 at [51]: “The Court of Justice’s role is one of interpretation, the national court's one of application.”
21 [2014] CSIH 38, [5]. As Bartlett explains, those Member States expressing opposition would appear to be doing so to protect their export trade in wines and spirits: [2014] EJRR 73, 77.
22 It is understood that, unlike the court's published opinion, the reference does set out the court's reasons for asking its questions at some length. The reference is not, however, in the public domain. In this author's view, it is to be regretted that the court’s reasons for making the reference in a case of this importance have not been published, not least because it would have informed the electorate whose representatives in the Scottish Parliament voted overwhelmingly in support of the legislation.
23 Case C-333/14 Scotch Whisky Association v Lord Advocate, OJ 2014 C 339/4.
24 Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, OJ 2013 L 347/671.
25 [2013] CSOH 70, [85]-[96]. The legislation referred to by Lord Doherty was Regulation 1234/2007, the Single Common Market Organisation (“CMO”) Regulation, OJ 2007 L 299/1. The CMO Regulation was replaced by Regulation 1308/2013 with effect from 1st January 2014, see Article 232 of the latter Regulation.
26 E.g. Joined Cases C-90 and C-176/90 Aragonesa de Publicidad Exterior SA and Publivía SAE v Departamento de Sanidad y Seguridad Social de la Generalitat de Cataluña [1991] ECR I-4151, [16].
27 [2013] CSOH, [91].
28 Case 16/83 Prantl [1984] ECR 1299, [16].
29 Case 73/84 Denkavit [1985] ECR 1015, [12]-[13].
30 Case C-350/97 Monsees [1999] ECR I-2921, [24]-[27].
31 Lord Doherty referred to the predecessor provision at Article 113c.1(b) of the CMO Regulation.
32 [2013] CSOH 70, [94].
33 [2013] CSOH 70, [28]. See Case 82/77 Van Tiggele [1978] ECR 25, [21]: “the establishment by a national authority of a minimum retail price fixed at a specific amount and applicable without distinction to domestic products and imported products constitutes … a measure having an effect equivalent to a quantitative restriction on imports which is prohibited under” Article 34 TFEU.
34 Commission Communication SG(2012) D/52513.
35 [2013] CSOH, [29].
36 Case C-197/08 Commission v France [2010] ECR I-1599, [52]-[53]; Case C-198/08 Commission v Austria [2010] ECR I-1645, [42]-[43]; Case C-221/08 Commission v Ireland [2010] ECR I-1669, [54]-[55]. AG Kokott delivered a single opinion in these three cases. These cases qualify an earlier CJEU judgment by accepting that national law may prohibit sales at a price below cost plus duty: the CJEU had not addressed that question in Case C-216/98 Commission v Greece [2000] ECR I-8921, [31].
37 In this regard only, the author respectfully parts company with Lord Doherty who distinguished the tobacco cases at [2013] CSOH 70, [44] on that basis that the CJEU held that Article 36 TFEU could not be advanced as a defence to infraction of the excise duty directives. It is respectfully submitted that the CJEU was not limiting its reasoning in that way, and its reasoning on Article 36 TFEU was of general application.
38 Case C-197/08 Commission v France [2010] ECR I-1599, [52]; Case C-198/08 Commission v Austria [2010] ECR I-1645, [42]; Case C-221/08 Commission v Ireland [2010] ECR I-1669, [54].
39 The BRIA is available at: http://www.scotland.gov.uk/Topics/Health/Services/Alcohol/minimum-pricing/regulatoryimpactassessment.
40 [2013] CSOH, [35].
42 BRIA, [2.9].
43 It also involves a much lighter touch than other means which have been deployed to address this issue which are compatible with EU law, such as a national alcohol retail monopoly, as to which see Alemanno and Garde The emergence of an EU Lifestyle Policy: the Case of Alcohol, Tobacco and Unhealthy Diets (2013) 50 CMLRev 1745, 1756.
44 BRIA, [2.33]-[2.41].
45 BRIA, Annex A, [72]-[78].
46 BRIA, Annex A, [74].
47 See, e.g. Case C-197/08 Commission v France [2010] ECR I-1599, [4].
48 BRIA, [2.31].
49 BRIA, Annex A, [73].
50 BRIA, Annex A, [78].
51 BRIA, [2.26]-[2.32].
52 [2013] CSOH 70, [38]. For more recent evidence on the superiority of the targeted effect of minimum unit pricing against cheaper alcoholic drinks when compared with excise duties, see Brenna et al Potential benefits of minimum unit pricing for alcohol versus a ban on below cost selling in England for 2014: modelling study BMJ 2014;349:g5452.
53 Bartlett [2014] EJRR 73, 76.
54 See, for example, Case C-231/83 Cullet v Centre Leclerc [1985] ECR 305, in which it was held at [34] that Treaty rules “do not prohibit national rules providing for a minimum price to be fixed by the national authorities for the retail sale of fuel”.
55 There are no other issues raised in the case as to whether the legislation would offend other Treaty provisions or principles of protection of fundamental rights.
56 Council Directive 92/83/EEC on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages, OJ 1992 L 316/21; Council Directive 92/84/EEC on the approximation of the rates of excise duty on alcohol and alcoholic beverages, OJ 1992 L 316/29. For the background to these directives, see R v HM Treasury ex p Shepherd Neame [1999] 1 CMLR 1274 (CA), [3]-[9].
57 [2013] CSOH 70, [82]-[83].
58 Case 199/82 San Giorgio [1983] ECR 3595 and authorities cited therein. The effectiveness of EU law may require consideration of new material where there may have been a significant change in circumstances since the adoption of the original legislation: Case C-167/97 Seymour Smith [1999] ECR I-623, [47]-[48].
59 Fordham Judicial Review Handbook (6th ed, 2012), § 17.2 Fresh evidence in judicial review. (While this is a book on English public law, it is understood that the same approach would be applied under Scots public law.)
60 Case C-197/08 Commission v France [2010] ECR I-1599, 1617, [61]. The following authorities were cited at footnote 27 at the end of this passage for that proposition: Case C-41/02 Commission v Netherlands [2004] ECR I-11375, [46] and [51]; Case C-169/07 Hartlauer [2009] ECR I-1721, [30]; and Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes and Others [2009] ECR I-4171, [19]. See also the authorities to similar effect cited by Bartlett [2014] EJRR 73 at 76.
61 As was done in the tobacco vending machine ban cases in both England, R (Sinclair Collis) v Secretary of State for Health [2011] EWCA Civ 437, [2012] QC 394, [49], [135], [213]; and in Scotland, Sinclair Collis v Lord Advocate [2012] CSIH 80, [2013] SC 221, [59]. As Green J observed in Gilbraltar Betting & Gaming Association v Secretary of State for Culture, Media & Sport [2014] EWHC 3236 (Admin) at [120] “In areas relating to public health protection the precautionary principle is well established”, citing Laws LJ at [42] and Arden LJ at [142]-[143] in the English Sinclair Collis case.
62 As noted above, the Scottish Parliament does not have the power to vary excise duties as this is not a devolved power: BRIA, Annex A, [78].
63 Tridimas The General Principles of EU law (2nd ed, 2006), p 215 “The more tenuous the restriction on free movement, the more lax the standard of proportionality”, citing Joined Cases 60 & 61/84 Cinéthèque [1985] ECR 2605.
64 Case C-36/02 Omega [2004] ECR I-9609, [31]: “The fact remains, however, that the specific circumstances which may justify recourse to the concept of public policy may vary from one country to another and from one era to another. The competent national authorities must therefore be allowed a margin of discretion within the limits imposed by the Treaty.”