C-333/14, Scotch Whiskey Association [2018]

C-333/14, Scotch Whiskey Association [2018]
Photo by Amit Lahav / Unsplash

1. Facts

• Issue: Scottish legislation introduced a minimum price for alcohol to address public health concerns. Scottish Whiskey producers challenged this law under Article 34 TFEU and the Single Common Market Organisation Regulation (1308/2012). They argued that the legislation would reduce their profits.

• Keck Consideration: Following the Keck judgment, minimum pricing was classified as a selling arrangement. It would only fall under Article 34 if discriminatory.

2. Outcome

• First Instance: Lord Doherty ruled that the minimum pricing did not violate Article 34 due to the justifiable public health concerns.

• AG Bot’s Opinion:

◦ Market Access Formula: Advocate General Bot applied a new market access formula, blending the Keck approach with a broader market access test.

◦ Finding: AG Bot concluded that the minimum pricing constituted a market access restriction and thus violated Article 34.

3. Impact and Analysis

• Keck and Market Access: The judgment acknowledged that Keck remains valid. However, it also recognised that even if classified as a selling arrangement, the minimum pricing still resulted in discrimination by negating any comparative advantage, similar to market access restrictions.

• Proportionality: The justification for minimum pricing was deemed unsatisfactory. It was suggested that alternative measures, like increasing taxation levels on alcohol, could be more effective and sensitive to internal market requirements.

• Devolution Issue: The Scottish government lacked the power to raise taxes, which would require action from the UK government. The EU stance was that devolution of powers was a matter for the UK, not the EU.

• UKSC Ruling: The UK Supreme Court, led by Lord Mance, upheld the legislation. It supported Lord Doherty’s point that a taxation approach could impose a disproportionate burden on moderate drinkers.

• Niamh Dunne’s Perspective: The case highlighted a conflict between two essential values—public health and the reduction of socio-economic inequalities versus internal market considerations.