Yves Bot, the Advocate General of the European Court of Justice said in a legal opinion that minimum pricing would only be legal if no other mechanism – such as increasing taxes – was capable of bringing about public health benefits.
The court will deliver its final judgement later, a process that could take up to six months. In the meantime, Mr Bot’s opinion is expected to spell defeat for the Scottish government’s attempt to be the first in Europe to introduce minimum pricing.
The Scottish government, however, refused to accept defeat and welcomed the statement from Mr Bot, arguing that it set down guidelines for it follow.
First Minister Nicola Sturgeon said: “We welcome this opinion, in which the Advocate General confirms that minimum unit pricing is not precluded by EU law, but sets out tests that the national court has to apply.
“Importantly, this initial opinion indicates it will be for the domestic courts to take a final decision on minimum unit pricing. The Advocate General finds that the policy can be implemented if it is shown to be the most effective public health measure available.
“As such, the legal process is ongoing and we await a final response from the European Court of Justice, before the case returns to the Scottish courts.
“While we must await the final outcome of this legal process, the Scottish Government remains certain that minimum unit pricing is the right measure for Scotland to reduce the harm that cheap, high-strength alcohol causes our communities.
“In recent weeks statistics have shown that alcohol related deaths are rising again and that consumption may be rising again after a period of decline. We believe minimum unit pricing would save hundreds of lives in coming years and we will continue to vigorously make the case for this policy.”
Despite Ms Sturgeon’s interpretation of the court’s opinion, the drinks industry saw it as a vindication of its position.
David Frost, chief executive of the Scotch Whisky Association, which has taken legal action to challenge the legislation, said: “We welcome the Advocate General’s opinion on minimum unit pricing (MUP) of alcohol. The opinion encourages us in our long-held view that MUP is illegal when there are less trade restrictive measures available. We await the Court of Justice’s final ruling.
“It remains important to address alcohol misuse with a range of other measures of proven effectiveness. We will continue to work closely with the Scottish Government and other stakeholders on this. There is a long-term trend of falling alcohol-related deaths and harms in Scotland which suggests that measures in place are working.”
The SWA, along with spiritsEUROPE and Comite Vins, took legal action against MUP in 2012. The case was referred to the CJEU by the Scottish Court in 2014 for a ruling on questions of EU law. Several Member States – Spain, Portugal, Bulgaria and Poland – raised similar concerns at the CJEU’s hearing in May. The CJEU’s ruling is likely in the new year.
Once it has received the ruling of the Court of Justice, the Court of Session will decide on the next steps.
A big target of the legislation, introduced by the Scottish government in May 2012, was cheap alcohol sold by supermarkets and off licences.
It was supported by medics and the police but fiercely opposed by the drinks industry and those who believe it is misguided and would not achieve the desired result.
Linda Bauld, Professor of Health Policy at Stirling University’s Institute for Social Marketing, said raising the price of alcohol in Scotland would save lives.
Professor Bauld told BBC Radio Scotland’s Good Morning Scotland programme: “The reason the Scottish Parliament passed this measure is that there is strong and clear evidence that increased price reduces both hazardous drinking and alcohol problems.
“It is really unfortunate that we have had this delay because of this legal case.
“We know that since minimum pricing was passed in the Scottish Parliament, around 2,500 Scots have died because of alcohol. If we could raise the minimum price, we know we could save some lives and also the other harm caused by alcohol in Scotland.”
Former Conservative MEP Struan Stevenson said he was concerned about what the introduction of a minimum price for alcohol would do to Scotland’s trade position.
He told Good Morning Scotland: “I think it would drive a cart and horse through the internal market rules in the EU and would also have a detrimental impact on external trade.”