Scotch Whisky Association and Others v The Lord Advocate and Another: SC 15 Nov 2017

The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum pricing was a proportionate way of achieving a legitimate aim. From the outset, concern about the health and social harms resulting from extremely heavy drinking in deprived communities was an element of targeted thinking behind the 2012 Act. The Policy Memorandum also discounted a straightforward increase in excise tax as it ‘would impact on high price products as well as cheap ones and so would have a proportionately greater effect on moderate drinkers than a minimum price’.
The Court of Session had made a judgment it was entitled to reach on the information before it.
The effect of the ECJ judgment was that, where a national court examines national legislation in the light of the justification relating to the protection of health under article 36 TFEU it is bound to examine objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods and of the CMO.


Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hodge


[2017] UKSC 76, 2017 GWD 37-566, [2017] UKSC 76, [2018] LLR 198, 2018 SCLR 102, [2018] 2 CMLR 6, 2017 SLT 1261, UKSC 2017/0025


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Alcohol (Minimum Pricing) (Scotland) Act 2012, Directive 92/84/EEC




See AlsoThe Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See AlsoThe Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See AlsoScotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See AlsoScotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
At ECJScotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland ECJ 23-Dec-2015
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative . .
CitedCommission v Italy (Free Movement Of Goods) ECJ 10-Feb-2009
ecJ Failure of a Member State to fulfil obligations Article 28 EC Concept of ‘measures having equivalent effect to quantitative restrictions on imports’ Prohibition on mopeds, motorcycles, motor tricycles and . .
CitedBerlington Hungary And Others v Magyar Allam ECJ 11-Jun-2015
ECJ Judgment – Reference for a preliminary ruling – Freedom to provide services – Games of chance – National taxes on the operation of slot machines in amusement arcades – National legislation national . .
CitedLumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
CitedRecovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
CitedCommission v France C-434/97 ECJ 24-Feb-2000
(Rec 2000,p I-1129) Judgment) Action for failure to fulfil obligations – Directive 92/12/EEC – Specific tax levied on beverages with a high alcohol content
The Court summarised the difference between VAT and excise as being that the former is . .
CitedBernard Keck and Daniel Mithouard (Rec 1993,p I-6097) (SV93-431) (Judgment) ECJ 24-Nov-1993
Free movement of goods – Prohibition of resale at a loss. A national law is fair if the rules it applies deal equally to imported and home goods.
Europa Free movement of goods – Quantitative restrictions – . .
CitedGroupement National des Negociants en Pommes de Terre de Belgique Belgapom) v ITM Belgium SA and Vocarex SA ECJ 11-Aug-1995
European Community quantitative restrictions on import not relevant to every states legislation. Measures applying equally to all traders within a member state were not discriminatory.
Trade between Member States is not likely to be impeded, . .
CitedTransportes Jordi Besora, SL v Tribunal Economico Administrativo Regional De Cataluna ECJ 27-Feb-2014
Indirect taxes – Excise duties – Directive 92/12/EEC – Article 3(2) – Mineral oils – Tax on retail sales – Concept of ‘specific purpose’ – Transfer of powers to the Autonomous Communities – Financing – Predetermined allocation – Health-care and . .
CitedTallinna Ettevotlusamet v Statoil Fuel and Retail ECJ 5-Mar-2015
ECJ Judgment – Reference for a preliminary ruling – Indirect taxation – Excise duties -Directive 2008/118/EC – Article 1(2) – Liquid fuel subject to excise duty – Sales tax – Concept of ‘specific purpose’ – . .
At IHCSThe Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
Lists of cited by and citing cases may be incomplete.

Licensing, Health, European

Updated: 25 November 2022; Ref: scu.599383