PETITION FOR JUDICIAL REVIEW BY SCOTCH WHISKY ASSOCIATION & OTHERS

Summary of Lord Doherty's decision in the Petition for Judicial Review.

Lord Doherty has refused the petition by the Scotch Whisky Association, holding that the Act was not outside the legislative competence of the Scottish Parliament; and that the proposed Order setting a minimum price per unit of alcohol was within devolved competence and within the powers of the Scottish Ministers.

The petitioners were (1) the Scotch Whisky Association, a trade association representing distillers and others involved in the Scotch whisky industry, (2) the European Spirits Association, are a representative body in the European Union for producers of spirit drinks, and (3) Comite Europeen Des Enterprises, Vins, a representative body for the European Union wine industry and trade. They brought judicial review proceedings to challenge the legality of an enactment of the Scottish Parliament - the Alcohol (Minimum Pricing) (Scotland) Act 2012 - and the legality of the Scottish Ministers’ decision that they will make an Order setting a minimum price for alcohol at 50 pence per unit of alcohol.

The grounds of challenge were (1) that the Act and the decision to set the minimum price are in breach of the Acts of Union; (2) that the Act is outside the legislative competence of the Scottish Parliament and is not law because it purports to modify, or to confer power to modify, Articles 4 and 6 of the Acts of Union so far as they relate to freedom of trade (Scotland Act 1998, s. 29(1), (2)(c) and Sched. 4, paragraphs 1(1), 1(2)(a); (3) that the Act is outside the legislative competence of the Scottish Parliament and is not law because it is incompatible with EU law (Scotland Act 1998, s. 29 (1),(2)(d); (4) that, for the same reasons, the proposed Order would, if made, be outside devolved competence and be beyond the powers of the Scottish Ministers (Scotland Act 1998, ss.54(2),(3) and 57(2)).

The incompatibility with EU law was said to arise in three respects. First, minimum pricing was said to contravene Article 34 of the Treaty on the Functioning of the European Union and it was maintained that it could not be, or was not, justified under Article 36. Second, it was said to be incompatible with the common organisation of the market relating to wine and certain other alcohol products. Third, it was said to be in breach of Article 6(2) of Regulation (EC) 110/2008 relating to spirits.

A first hearing at the Court of Session took place over seven days between 15 and 24 January 2013. On 3 May 2013 Lord Doherty refused the petition, holding that the Act was not outside the legislative competence of the Scottish Parliament; and that the proposed Order setting a minimum price was within devolved competence and within the powers of the Scottish Ministers.

The court ruled that the Acts of Union were not an impediment to the minimum pricing measures.

The court also decided that the measures were not incompatible with EU law.

It held that in so far as the measures had equivalent effect to quantitative restrictions on imports (Article 34 TFEU) they were justified on the grounds of the protection of the life and health of humans (Article 36).

It determined that the national authorities retained competence to introduce minimum pricing notwithstanding the fact that there had been a degree of EU common organisation of the market in respect of wine, other fermented products, and agriculturally produced ethyl alcohol (Regulation (EC) 1234/2007 (as amended by Regulation (EC) 491/2009)). The measures were not prohibited by, nor did they undermine, that Regulation.

The court further held that the measures were not struck at by Regulation (EC) No. 110/2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks.

The court was satisfied that it was unnecessary and inappropriate to refer any question of EU law to the Court of Justice for a preliminary ruling.

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