Supreme Court MUP case clarifies proportionality test for breach of EU freedom

The Supreme Court has today ruled that minimum unit pricing for alcohol, which was passed by the Scottish Parliament in 2012, can now proceed.

Commenting on the legal significance of the case, Philip Simpson QC, who appeared for the Advocate General told Scottish Legal News: “I’d say that it is an important decision in that it confirms that where a national legislative measure is challenged on the basis that it breaches a fundamental freedom of EU law, a court deciding the question of proportionality must ask whether it was reasonable for the national legislature to conclude that (i) the measure being challenged was suitable to achieve the end pursued, and (ii) there was no less restrictive measure available.

“Important in the present case were the uncertainty of how manufacturers, wholesalers and retailers would react to the provision, the requirement for its effects to be assessed after five years, and the fact that, following that assessment, the provision would automatically terminate after six years unless renewed by the Scottish Parliament within that time.”

Prior to implementing the policy, ministers will now conduct a consultation on the proposed 50 pence per unit price and refresh the Business and Regulatory Impact Assessment (BRIA) that is required by Parliament.

The Scottish government anticipates setting the minimum unit price at 50 pence per unit, subject to the outcome of the consultation and the refreshed BRIA.