Last month the European Court of Justice (ECJ) gave its ruling on Scotland's minimum unit pricing (MUP) case, largely confirming the preceding opinion of the Advocate General. The ECJ have ruled that it will be for the Scottish Inner House of the Court of Session to rule on MUP, but can only decide in favour if 'proportionality' can be proved; crucially that the aims of MUP cannot be better achieved by taxation rises.
However a further analysis by EU law lecturer Angus MacCulloch identifies that 'in many ways the judgement leaves as many questions as it answers'. As such the outcome is still 'very much to play for', and again both public health groups and industry opponents of MUP claimed the ruling as positive. News reports however tended to play to conjecture that MUP is 'illegal', demonstrating the highly politicised history of UK MUP tensions.
The issue itself is of course highly complicated in terms of both EU law and other implications. MacCulloch expressed disappointment at 'the lack of clarity in the Court’s discussion of proportionality', which 'has been described as “Delphic” by some commentators'. Indeed assessing and proving MUP and taxation impacts involves so many potential considerations, not least given the very significant differences between the approaches. As such, the Scottish court 'still has a lot of work to do in unpicking the Court’s Ruling'.
The Institute of Alcohol Studies (IAS) have previously argued that 'taxation alone cannot achieve the same effect as minimum unit pricing, partly because the EU tax rules prohibit member states from taxing all alcoholic drinks by strength'. Indeed taxation may be considered a much less targeted measure, and as such is 'less restrictive on trade'. Some industry groups therefore claimed this as the basis of MUP's illegality though industry interests typically oppose taxation rises too - resulting in 'doublespeak' according to some commentators.
Sheffield's Professor Petra Meier has previously stated both taxation and minimum pricing should be sought, and as such should not be an 'either or' argument. MUP would ensure that no alcohol can legally sold below the set unit price, whilst increased taxation would mitigate against the potential for increased profits as a result. However England's Chancellor has been cutting alcohol taxes to the dismay of alcohol health groups, whilst trade bodies have credited the duty cuts with helping boost the recent growth in off-sales.
Only time will tell whether the industry led legal challenge proves to be effective only as a delaying tactic as some have claimed - or ultimately as a fatal blow to MUP efforts across the UK. Scotland first passed legislation to implement MUP in 2012 and subsequently the Scottish Judiciary found that MUP did not breach EU competition law. Whilst Ireland and Wales are both also intent on MUP, England's infamous u-turn in 2012 is still reportedly 'under review'.