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Published online by Cambridge University Press: 29 November 2019
Market interventions to protect public health are likely to be subject to EU law challenge as contrary to the rules on free movement. In the Scotch Whisky case the CJEU stressed the importance of defined public health objectives and supporting evidence in the analysis of whether interventions are justified as “appropriate” and “necessary”. This article considers the wider implications of this judgment for the application of the proportionality test in free movement cases and in the case of innovative interventions that are adopted on a complex evidence base. The article argues that the unusual development that Scotch Whisky made to the CJEU’s wider trend towards greater engagement with evidence should be treated with caution, and that it is possible for national courts to apply the new guidance on the role of evidence in the proportionality analysis with sensitivity. The article also argues that policymakers must now be more aware of how they frame innovative interventions and the evidence supporting them.
The authors would like to thank the participants at the 43rd KBS Symposium, Mark Butler, John Holmes, Paula O’Brien, Barry Rodger, James Sweeney, and the anonymous reviewers for their helpful comments on earlier drafts. We take sole responsibility for any errors or omissions.
1 Scotch Whisky Association, Petitioners [2013] CSOH 70.
2 MUP came into effect on 1 May 2018. See Scottish Government, Minimum Unit Pricing of Alcohol – Consultation Report: Analysis of Responses (Scottish Government 2018)Google Scholar.
3 In Ireland The Public Health (Alcohol) Act 2018 was enacted on 17 October 2018, having been introduced as a Bill in December 2015, and contains provisions for an MUP calculated according to the number of grams of alcohol in a beverage: see <www.oireachtas.ie/en/bills/bill/2015/120/> (last accessed 1 November 2019). In Wales the Public Health (Minimum Price for Alcohol) (Wales) Act 2018 was published on 9 August 2018, and the commencement of the legislation has been delayed until 2020 due to Portugal issuing a detailed opinion on the legislation following its notification to the European Commission.
4 See, for instance, Rostron v Guildford Borough Council [2017] EWHC 3141 (Admin).
5 Case 8/74, Procureur du Roi v Dassonville EU:C:1974:82, [1974] ECR 837, 5.
6 See, for example, P Oliver, “Of trailers and jet skis: is the case law on Article 34 TFEU hurtling in a new direction?” (2010) 33(5) Fordham International Law Journal 1423, and I Lianos, “In Memoriam Keck: The Reformation of the EU Law on the Free Movement of Goods” (2015) 40(2) European Law Review 225.
7 Case C-110/05, Commission v Italian Republic EU:C:2009:66.
8 Case C-142/05, Mickelsson and Roos EU:C:2009:336 – see, in particular, 26.
9 Case C-333/14, Scotch Whisky Association v Lord Advocate EU:C:2015:845. See O Bartlett, “Minimum Unit Pricing for Alcohol May Not be a Proportionate Public Health Intervention” (2016) EJRR 218, and A Alemanno, “Balancing free movement and public health: The case of minimum pricing of alcohol in Scotch Whisky” (2016) 53 Common Market Law Review 1037.
10 Scotch Whisky, ibid, 32.
11 See for instance Case C-82/77, Openbaar Ministerie (Public Prosecutor) v Jacobus Philippus van Tiggele EU:C:1978:10; C-197/08 Commission v France EU:C:2010:111.
12 Scotch Whisky (CJEU), supra, note 9, 44.
13 Scotch Whisky (CJEU), supra, note 9, 33.
14 Scottish Government, Final Business and Regulatory Impact Assessment for Minimum Price Per Unit Of Alcohol As Contained In Alcohol (Minimum Pricing) (Scotland) Bill (2012).
15 Scotch Whisky (CJEU), supra, note 9, 34.
16 ibid.
17 Detailed opinion from the Commission on Notification 2012/0394/UK on the draft Alcohol (minimum price per unit) (Scotland) Order, reproduced by BBC Scotland at BBC News, “Minimum alcohol pricing: Position of the European Commission” (2013) <www.bbc.co.uk/news/uk-scotland-scotland-politics-22368551> (last accessed 1 November 2019).
18 Scotch Whisky (CJEU), supra, note 9, 37.
19 ibid, 44.
20 ibid, 46.
21 The case was first brought before the Outer House of the Court of Session in Scotland. It was then appealed to the Inner House of the Court of Session, which made the reference to the CJEU. The decision of the Inner House was then appealed to the UK Supreme Court.
22 Scotch Whisky (CSOH), supra, note 1, 53.
23 ibid, 54.
24 ibid, 77.
25 ibid, 79.
26 Case C-216/98, Commission v Greece EU:C:2000:571, and Case C-197/98, Commission v France EU:C:2010:111.
27 Scotch Whisky (CJEU), supra, note 9, 48. Throughout the initial judgment the Outer House refers to Minimum Price per Unit (MPU), but in this paper we prefer the more common usage of MUP.
28 See the analysis below on the significance of this failure.
29 See for example Anderson, P et al (eds), Alcohol in the European Union. Consumption, Harm and Policy Approaches (WHO Europe 2012)Google Scholar; J Rehm et al, “The Relation between Different Dimensions of Alcohol Consumption and Burden of Disease – An Overview” (2010) 105 Addiction 817; L Baglietto et al, “Average Volume of Alcohol Consumed, Type of Beverage, Drinking Pattern and The Risk of Death From All Causes” (2006) 41 Alcohol and Alcoholism 664.
30 L Panzone, “Alcohol tax, price-quality proxy and discounting: A reason why alcohol taxes may rebound” (2012) 63(3) Journal of Agricultural Economics 715.
31 “The diversity of alcohol-related problems and measures necessary to reduce alcohol-related harm points to the need for comprehensive action across numerous sectors”: WHO, Global strategy to reduce harmful use of alcohol (WHO, 2010) 6Google Scholar.
32 Council Directive 2011/64 of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco, OJ L 176/24, 5.7.2011.
33 Case C-531/07, Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH EU:C:2009:276, 17–20; Case C-221/15, Etablissements Fr. Colruyt NV EU:C:2016:704, 32–41. The difference in outcomes between LIBRO and Colruyt is attributable to the fact that the legislation in LIBRO discriminated against imports and the legislation in Colruyt did not.
34 Case C-63/94, Belgapom v ITM and Vocarex EU:C:1995:270; Opinion of Advocate General Cosmas in Case C-63/94, Belgapom v ITM and Vocarex EU:C:1995:81.
35 A MacCulloch, “State Intervention in Pricing: An Intersection of EU Free Movement and Competition Law” (2017) 42 European Law Review 190.
36 In the Scottish court system the Court of Session is the highest civil court. It is comprised of the Outer House, which hears cases at first instance, and the Inner House, which hears appeals from the Outer House and the lower Sheriff Courts.
37 Scotch Whisky Association & Others v Lord Advocate [2016] CSIH 77.
38 The evidence put forward by the Lord Advocate is considered at 125–143. The petitioner’s response is at 149–165.
39 Scotch Whisky (CSIH), supra, note 37, 196 and 198.
40 ibid, 200. At 204 the Lord President also described certain benefits of MUP as being “well documented”.
41 Scotch Whisky Association and others v The Lord Advocate and another [2017] UKSC 76.
42 See for example Case C-333/08, Commission v France EU:C:2010:44, 97.
43 Case C-531/06, Commission v Italy EU:C:2009:315. See also Case C-270/02 Commission v Italy EU:C:2004:78, 24; and, Case C-473/98 Toolex Alpha EU:C:2000:379, 45.
44 Case C-61/12, Commission v Lithuania EU:C:2014:17, 62 and 67.
45 Case C-254/05, Commission v Belgium EU:C:2007:319, 36.
46 See for example N Nic Shuibhne and M Maci, “Proving Public Interest: The Growing Impact of Evidence in Free Movement Case Law” (2013) 54(4) Common Market Law Review 965.
47 Case C-1/90, Aragonesa EU:C:1991:327, 15.
48 Case C-189/95, Franzen EU:C:1997:504, 76.
49 Case C-170/04, Rosengren EU:C:2007:313, 54.
50 Scotch Whisky (CJEU), supra, note 9, 56.
51 ibid, 64.
52 Notwithstanding the European Parliament and Council have both called for a renewed EU alcohol strategy: Motion for a Resolution on Alcohol Strategy (2015/2543(RSP)) B-0357/2015, 22.4.2015; Council Conclusions on an EU strategy on the reduction of alcohol related harm [2015] OJ C 418/6-8.
53 Case C-405/98, Gourmet International EU:C:2001:135, 33.
54 Case C-316/07, Stoß EU:C:2010:504, 71.
55 ibid, 72. Emphasis added.
56 Case C-42/02, Lindman ECLI:EU:C:2003:613, 26.
57 Case C-390/12, Pfleger EU:C:2014:281, 52.
58 Case C-95/01, Greenham and Abel EU:C:2004:71, 42. Emphasis added.
59 Case C-382/10, Albrecht EU:C:2011:639, 27.
60 In Case C-390/07, Commission v UK EU:C:2009:765, the entire case concerns the interpretation of evidence by the parties, on which the Court gives extensive direction.
61 Cases C-58/10 to C-68/10, Monsanto EU:C:2011:553, 76.
62 See Case C-591/17, Austria v Germany EU:C:2019:504; Case C-377/17, Commission v Germany EU:C:2019:562; Case C-151/17, Swedish Match EU:C:2018:938; Case C-329/16, Snitem EU:C:2017:947; Case C-52/16, SEGRO EU:C:2018:157; Case C-221/15, Colruyt EU:C:2016:704; Case C-148/15, Deutsche Parkinson Vereinigung EU:C:2016:776; Case C-114/15, Audace EU:C:2016:813; and Case C-472/14, Canadian Oil Company EU:C:2016:171.
63 Deutsche Parkinson Vereinigung, ibid.
64 ibid, 35.
65 ibid, 42.
66 ibid, 36.
67 This limitation of judges has been known for many years: J Wesley, “Scientific evidence and the question of judicial capacity” (1983) 25 William and Mary Law Review 675; and S Jasanoff and D Nelkin, “Science, technology, and the limits of judicial competence” (1981) 22 Jurimetrics Journal 266.
68 M Juntti et al, “Evidence, politics and power in public policy for the environment” (2009) 12(3) Environmental Science and Policy 207; and R Brownson et al, “Evidence-based public health: A fundamental concept for public health practice” (2009) 30 Annual Review of Public Health 175.
69 See L Morales, “Taking facts seriously: Judicial intervention in public health controversies” (2015) 8(2) Public Health Ethics 185; and E Hammond Meazell, “Super deference, the science obsession, and judicial review as translation of agency science” (2010) 109 Michigan Law Review 733.
70 Opinion of AG Bobek in Case C-2/18, Lietuvos Respublikos Seimo narių grupė EU:C:2019:180.
71 Para 42.
72 BAT v SoS for Health [2016] EWHC 1169 (Admin). The Art 34 TFEU argument was not pursued on appeal, but proportionality more generally was still an issue: R (on the application of British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182, [2017] 3 WLR 225.
73 On the length of the EWHC judgment see the view of the EWCA, BAT (EWCA), ibid, 2. The EWHC judgment does have a very helpful contents index to aid navigation.
74 BAT (EWHC), supra, note 72, 428.
75 ibid, 429. The contested fourth limb has a long history; see, for example, Tridimas, T, “Proportionality in Community Law: Searching for the Approriate Standard of Scrutiny” in Ellis, E (ed), The Principle of Proportionality in the Laws of Europe (Hart Publishing 1999)Google Scholar.
76 See, for instance, the discussion of R (on the application of Lumsdon and others) v Legal Services Board [2015] UKSC 41, 433.
77 BAT (EWHC), supra, note 72, 632. In this case the legislation was The Standardised Packaging of Tobacco Products Regulations 2015, SI 2015/829.
78 ibid.
79 ibid, 633.
80 ibid, 37.
81 ibid.
82 See, for instance, his comments, ibid, at 411.
83 Elder et al examined 72 relevant studies in RW Elder et al, “The effectiveness of tax policy interventions for reducing excessive alcohol consumption and related harms” (2010) 38(2) American Journal of Preventive Medicine 217, and Wagenaar et al examined 50 articles in AC Wagenaar et al, “Effects of alcohol tax and price policies on morbidity and mortality: a systematic review” (2010) 100(11) American Journal of Public Health 2270.
84 See for example F Martineau et al, “Population-level interventions to reduce alcohol-related harm: An overview of systematic reviews” (2013) 57(4) Preventive Medicine 278.
85 As we shall see below, Mr Justice Green was himself forced to return to this issue in a subsequent case.
86 BAT (EWCA), supra, note 72, 210.
87 The term has a lengthy history in both human rights jurisprudence and EU law. For discussion of its history see, for instance, JA Sweeney, “A ‘margin of appreciation’ in the internal market: lessons from the European Court of Human Rights” (2007) 34 Legal Issues of Economic Integration 27.
88 [2015] UKSC 3, [2015] AC 1016.
89 [2015] UKSC 47.
90 BAT (EWCA), supra, note 72, 226–227. In Mathieson, ibid, 25, it was explained that the extent of the “respect” could be “albeit of differing width”.
91 BAT (EWCA), supra, note 72, 246.
92 ibid. Emphasis in original.
93 ibid, 243.
94 ibid, 253.
95 Scotch Whisky (UKSC), supra, note 41.
96 ibid, 47.
97 ibid, 48.
98 ibid, 49.
99 BAT (EWHC), supra, note 72.
100 Scotch Whisky (UKSC), supra, note 41, 63.
101 ibid.
102 EU Lotto Ltd & Others v Secretary of State for Digital, Culture, Media and Sport [2018] EWHC 3111 (Admin).
103 The Gambling Act 2005 (Operating Licence Conditions) (Amendment) Regulations 2018, SI 2018/453.
104 A unique feature of the EuroMillions lottery is that it is a multistate lottery where a single draw in Paris is the basis for a lottery across several EU Member States. While one can technically be betting on the German EuroMillions draw, the numbers drawn will, of course, be the same as the numbers in the UK draw.
105 R (Lumsdon) v Legal Services Board [2015] UKSC 41.
106 EU Lotto, supra, note 102, 57.
107 ibid, 58.
108 See, for example, ibid, 58, 76, and 96.
109 BAT (EWCA), supra, note 72, 226–227.
110 EU Lotto, supra, note 102, 77.
111 Scotch Whisky (UKSC), supra, note 41, 37.
112 See, for example, BBC News, “Minimum alcohol pricing plan ‘may breach EU law’”, <www.bbc.co.uk/news/uk-scotland-35160396> (last accessed 1 November 2019).
113 B Hawkins and C Holden, “Framing the alcohol policy debate: industry actors and the regulation of the UK beverage alcohol market” (2013) 7(1) Critical Policy Studies 53, 54.
114 The ability to re-frame policy also allowed the Secretary of State to rely on new evidence of a “lead-in” risk in EU Lotto.
115 Scotch Whisky (CJEU), supra, note 9, 56.
116 EU Lotto, supra, note 102, 91.
117 See Monitoring and Evaluating Scotland’s Alcohol Strategy (MESAS): Monitoring Report 2019, available at <www.healthscotland.scot/media/2587/mesas-monitoring-report-2019.pdf> (last accessed 1 November 2019).
118 J Chalmers et al, “Real or perceived impediments to minimum pricing of alcohol in Australia: Public opinion, the industry and the law” (2013) 24 International Journal of Drug Policy 517, 518.
119 See <www.sheffield.ac.uk/scharr/sections/ph/research/alpol/sapm> (last accessed 1 November 2019).
120 On the importance of framing interventions within policy debates to ensure that the nature and target of the intervention is perceived as legitimate see, for example: S Hilton et al, “Implications for alcohol minimum unit pricing advocacy: What can we learn for public health from UK newsprint coverage of key claimmakers in the policy debate?” (2014) 102 Social Science and Medicine 157; and SV Katikireddi et al, “Changing Policy Framing as a Deliberate Strategy for Public Health Advocacy: A Qualitative Policy Case Study of Minimum Unit Pricing of Alcohol” (2014) 92(2) Millbank Quarterly 250.
121 For further information on the Bill, see the references in O Bartlett, “The compatibility of Ireland’s Public Health (Alcohol) Bill with EU law” (EU LawAnalysis, 13 October 2018), <eulawanalysis.blogspot.com/2018/10/the-compatibility-of-irelands-public.html> (last accessed 1 November 2019).
122 Regulatory Impact Analysis, Public Health Alcohol Bill, available at <health.gov.ie/wp-content/uploads/2016/05/Regulatory-Impact-Analysis-Public-Health-Alcohol-Bill.pdf> (last accessed 1 November 2019), 3.
123 Case C-547/14, Philip Morris Brands EU:C:2016:325, 170–177.
124 See for example: Case C-220/17, Planta Tabak EU:C:2019:76; Case C-151/17, Swedish Match EU:C:2018:938; Case C-244/06, Dynamic Medien EU:C:2008:85; and Case C-434/04, Ahokainen EU:C:2006:609.
125 Case C-446/08, Solgar Vitamin’s France EU:C:2010:233, 61.
126 BAT (EWHC), supra, note 72.
127 See also Rostron v Guilford Borough Council, supra, note 4, and Transport for London v Uber London Ltd and others [2018] EWCA Civ 1213.