Two recent judgments handed down by the CJEU show how difficult it can be for a Member State to involve itself in fixing minimum prices for products. Given the ongoing challenge to minimum alcohol pricing in Scotland it is interesting that in both these cases the Court ruled against the fixing of prices, but for very different reasons. Neither case is directly analogous to the Scots alcohol MUP referred to the Court in Case C-333/14, but there are perhaps lessons that can be learnt.
I recently had the pleasure of presenting my thoughts on minimum alcohol pricing and EU law at a Matrix Chambers Seminar on Thursday 4 July. The line up was very impressive, featuring Aidan O’Neill QC, myself, Christopher Brown, and Joanna Buckley. The Seminar was chaired by Jessica Simor QC. It was a fascinating chance to discuss, with both legal professionals and representatives of the drinks industry, the issues surrounding the Scottish Government’s attempt to introduce minimum pricing and the legal response to it.
This post may not be competition law sensu stricto, but it does highlight interaction between wider state regulation and the market place. It also highlights the interrelation between the EU free movement provisions, in Arts 34-36 TFEU, and competition law. Where the activities of the State, acting as the State, impact on the market the free movement provision apply. Where the market is effected by non-state actors the competition law rules apply.
This post 1st appeared on the excellent EUtopia Law blog on 31 May 2013.
There has been debate about the legality of minimum per-unit (MPU) alcohol pricing in the UK, since the SNP-led Scottish Government first suggested adopting such a measure back in 2009. I contributed to the debate on several previous occasions, but now there is a little more substance to be discussed after the Outer House of the Court of Session, on 3 May 2013, handed down its judgment in The Scotch Whisky Association and Ors, Re Judicial Review of the Alcohol (Minimum Pricing)(Scotland) Act 2012  CSOH 70. The judgment answers some of the questions posed, but, sadly, it leaves yet more unanswered. I doubt this will be the last that we see of minimum alcohol pricing before the courts.