AND so the minimum unit price saga on alcohol grinds on and the democratic will continues to be thwarted.
The Scotch Whisky Association (SWA), which ought to be safeguarding quality products instead of defending the cheapest, is celebrating the latest opinion by Yves Bot, the Advocate General of the European Court of Justice, to the effect that it may yet prove that MUP might breach free trade rules.
But this tells us absolutely nothing new. It has always been known that such a policy in support of public health would only be valid if it was proven that alternatives such as the use of direct taxation, would not work. In the case of the Scottish Government, Ministers remain resolute that they have ruled out all other possibilities, particularly because Holyrood does not control the relevant taxes.
Mr Bot said MUP risked infringing the principle of the free movement of goods and would only be legal if it could be shown that no other mechanism was capable of achieving the desired result of protecting public health.
He said: “A Member State can choose rules imposing a minimum retail price of alcoholic beverages, which restricts trade within the European Union and distorts competition, rather than increased taxation of those products, only on condition that it shows that the measure chosen presents additional advantages or fewer disadvantages by comparison with the alternative measure.”
This goes to the heart of the issue, that Scotland is not a member state and therefore does not have access to the full levers of taxation. However, it is instructive to look at the response of the Irish to the ruling. They, of course, have control over their own taxation and excise duties but would prefer to follow Scotland in using MUP as the most appropriate mechanism.
“I am encouraged by the opinion of the Advocate General which indicates that minimum unit pricing may be compatible with EU law if it can be shown to be more effective than other alternative measures,” said the Irish Health Minister.
The SWA, which brought the challenge to the policy to Europe, said the opinion by M. Bot encouraged its view that minimum pricing would be ruled illegal.
It is now three years since MSPs overwhelmingly passed legislation introducing MUP and Ministers remain confident that the healthy policy imperatives and consideration of all other avenues will see the measure approved.
Ireland seems confident that it will get the go-ahead, but then Dublin will have looked at all alternatives. Holyrood, as a sub-national legislature within a member state my yet find this counts against its aspirations.
That the SWA is reduced to challenging on narrow trade grounds rather than public health arguments does it little credit. The legal machinations will continue to grind on.
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