Measures that are aimed at protecting health but that restrict trade and competition must be proportionate, the European Court of Justice has ruled in a case involving minimum price orders for alcohol.
The court has issued a preliminary ruling after being asked six questions by the Scottish court of session in a case where a proposed minimum price per unit of alcohol (MPU) order, to be introduced in Scotland, is being challenged by the Scotch Whisky Association and others.
The court ruled that in relation to the common organisation of agricultural markets, measures that are restrictive of trade can be introduced by a member state that are aimed at protecting human life and health, provided that the measures are appropriate and do not go beyond what is necessary to attain that objective.
In relation to articles 34 and 36 of the Lisbon Treaty, it ruled that member states were precluded from choosing a measure aimed at protecting health and life which was more restrictive of trade and competition than an alternative measure that might achieve the same objective.
It was for the Scottish court to decide whether a measure other than MPU was capable of protecting human life and health as effectively while being less restrictive of trade in those products.
The court also answered questions in relation to article 36, concerning how it was to be interpreted with respect to the review of proportionality that the Scottish court must carry out.
It ruled that the court must objectively examine whether it may reasonably conclude that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of trade and the free movement of goods.
It also ruled that it was not just the information that was available at the time the measure was adopted that should be included in any review by the court as to the proportionality of the national measure which was being considered by the court, but rather the information and evidence that was available when the court was making its finding.
