The court of session in Edinburgh said there were several complex issues involving EU law on free trade and the right of ministers to set price controls to protect public health that could only be decided in the European court.
The judgment will mean further delays in a final decision on the Scottish government’s bid to charge a minimum price for alcohol of 50 pence a unit, but sidesteps a possible referral to the supreme court in London.
The court overturned a ruling by Lord Doherty in May last year in favour of the policy, which has been overwhelmingly supported by MSPs, police, health campaigners and doctors but resisted by the Scotch Whisky Association (SWA), European wine and spirits organisations and other drinks manufacturers.
It was also opposed by the European commission, and nine other member states, including Spain, France and Bulgaria, whose low-budget wine would be affected, the three judges in the court of session said.
The case will be watched closely by UK ministers in London, who have been toying with a lower minimum price of 45p in England and Wales but backed down from introducing the policy last year. Doctors’ leaders and previous chief medical officers have supported it enthusiastically but it has been resisted by the Home Office, and the policy was shelved last year.
Scottish ministers said they believed the case could be settled by the European court in little over a year, but the court of session warned that the referral to Strasbourg now meant at least nine other EU states that opposed the measure could now take an active role in the case.
Observers suggest that could mean a far longer deliberation. There were two major issues which only the Strasbourg court could settle, the judges in Edinburgh said.
The first was whether the free market within the EU could be restricted by national governments in certain cases, but only by using excise duties. The SWA and European drinks organisations are adamant it could not be restricted by minimum pricing in one part of a member state, because it would have a disproportionate and unjustified impact.
The second question, the judges said, was whether the Scottish government was right to argue that a restriction on free trade and market competition was legal under the EU treaty where public health was at risk.
Alex Neil, the Scottish health secretary, said he welcomed the referral since it would settle the matter. He was confident of his government’s case, he said. “The evidence shows that minimum unit pricing is an effective way to tackle alcohol-related harm. This is because it targets heavy drinkers in particular as they tend to drink the cheap, high-strength alcohol that will be most affected by the policy.”
David Frost, chief executive of the SWA, said the association was pleased by the decision. “From the outset we said that we believed minimum unit pricing was contrary to European Union law and that it was likely in the end to go to the European court,” he said.
