Minimum unit pricing for Scotland as Supreme Court dismisses Scotch Whisky Association appeal
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The Scotch Whisky Association’s appeal against the legality of Scotland’s minimum pricing regime has been unanimously dismissed by justices in the Supreme Court who found its enabling legislation does not breach EU law and that it is a proportionate means of achieving a legitimate aim. The Scottish Parliament decided to address the health and social consequences arising from the consumption of cheap alcohol by a minimum pricing regime (‘the Regime’). The Alcohol (Minimum Pricing) (Scotland) Act 2012 (‘the 2012 Act’) amends schedule 3 to the Licensing (Scotland) Act 2005 by inserting in the licence which any retail seller of alcohol in Scotland must hold, an additional condition that an alcohol product must not be sold at a price below a statutorily determined minimum price per unit of alcohol. The minimum price is to be set by secondary legislation but the current proposal is 50 pence per unit of alcohol.
The Scottish Ministers have undertaken not to bring the 2012 Act into force or to make any order setting a minimum price until determination of these proceedings.
The 2012 Act contains a requirement for Scottish Ministers to evaluate and report to the Scottish Parliament on its operation after five years, and a provision terminating its operation automatically after six years, unless the Scottish Ministers by order affirmed by the Scottish Parliament determine that it should continue (‘the Sunset Clause’). The SWA had presented a petition for judicial review challenging the lawfulness of the 2012 Act. The remaining ground of challenge is that minimum unit pricing is disproportionate under EU law, namely: article 34 of the Treaty on the Functioning of the European Union (‘TFEU’) and Regulation (EU) No 1308/2013 establishing a Common Organisation of the Markets in agricultural products (including wine) (‘the Single CMO’ Regulation’) and the Common Agricultural Policy set out in article 39 TFEU (‘CAP’). The claim was rejected at first instance.
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