I’ve been asked the question relating to the Alcohol Bill, something I posted about yesterday, ‘how can Scotland introduce minimum pricing, isn’t that a breach of EU law?’. So I thought this is something I would address in brief.
The issue is discussed in the British Medical Journal this month by Bryan Christie (Scotland will set minimum price for a unit of alcohol, BMJ 2011; 343:d5869) where he mentions;
“Although the measure will be approved in Scotland, it may still be blocked under European Union competition laws. Rules on free trade generally do not allow price fixing, which is seen as anticompetitive. In 1978 the European Court of Justice rejected minimum pricing of spirits, and the European Commission has also opposed minimum pricing on tobacco.”
However in creating the legislation, the Scottish Executive has obviously taken advice from various sources and in the Q&A section on the Scottish ‘Government’ the following is stated;
“Isn’t imposing a minimum price illegal? The Presiding Officer of the Scottish Parliament has issued a certificate of legislative competence for the Alcohol Bill which includes minimum pricing. This means that he considers the Bill to be within the powers of the Scottish Parliament.” (Minimum Pricing – Questions Answered, Scottish Government, http://www.scotland.gov.uk/Topics/Health/health/Alcohol/minimum-pricing/Q-A)
So the Scottish Executive clearly believe that the legislation and implications of it are legal. Scottish Health Action on Alcohol Problems (SHAAP) have addressed this issue and were involved in the consultation process. Their official policy is that;
“In the UK and at an EU level, rules on free trade generally do not allow price fixing on the grounds that it is deemed ‘anti-competitive’ and, it is argued, leads to inefficiency in the market. However, it is important to note that the law allows exceptions to these rules. Intervention in the operation of a market can legally be justified in certain circumstances on the grounds of the protection of public health.” (Legal framework for minimum pricing for alcohol, SHAAP, http://www.shaap.org.uk/pages/117,Legal_framework.html)
Now is the problem. What SHAAP are saying is indeed correct. EU law does indeed allow a margin of appreciation for Member States to derogate from certain legal principles on grounds of public health. The real question is whether it can actually justify the derogation if challenged in the European Courts. The problem here is that they are trying to invoke the right to derogate from EU law on grounds of public health for what is in reality a completely legal activity – consuming alcohol.
In my opinion we won’t actually find out the true legal position until / if such a legal challenge is mounted.