Minimum Alcohol Pricing Paper on SSRN

Malt Whisky

My latest Working Paper, entitled ‘Scottish Minimum Alcohol Pricing & EU Law’, which I will present at Queen’s University Belfast School of Law on the 3rd March 2014, has been published on SSRN.

The link to the Working Paper is:

The SNP Government in Scotland introduced Minimum Price per Unit (MPU) for alcohol in the Alcohol (Minimum Pricing) (Scotland) Act 2012. A challenge to those provisions was brought by the Scotch Whisky Association and others in SWA and Others for Judicial Review of the Alcohol (Minimum Pricing) (Scotland) Act 2012 [2013] CSOH 70. This article examines the impact of the first phase of that legal challenge. The analysis is broadly in three parts: first, an analysis of the Commission Opinion on MPU which went on to have significance in the case itself; second, an analysis of the Outer House judgment itself; and, finally, a discussion of the policy choices which underlie some of the arguments advanced in the case and what they tell us about the balance between free movement and undistorted competition in the internal market.

I conclude that:

1) The ‘margin of appreciation’ afforded to MSs under Art 34TFEU is not usually given the attention it deserves. A MS should take time to carefully consider the rationale for their domestic measures and target them at a clear and defined problem. by doing so they can thereafter significantly narrow the frame of reference of any subsequent proportionality challenge.

2) In SWA we can see the Commission trying to use its special role under the Technical Standards Directive to influence the development of a domestic public health policy to protect retail price competition between domestic and imported products. This sees the co-option of an internal market process to protect competition; where the Commission would not have power to act directly against the MS on pure competition grounds. The attempt to introduce competition elements into free movement situations is a clear expansion of policy and a move away from the narrow focus in many Art 34 TFEU cases on non-discriminatory ‘market access’.

As ever, comments and suggestions about the paper are welcome!

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