Andrew Tickell: This legislation is not yet dead but outcome too hard to call

European citizens will slurp Spanish wines, German beers, and our own single malts – purchased in a common market in liquor, without trade barriers and without protectionism.

Under EU law, the Italian Government can’t discriminate against Austrian producers, toiling in their vineyards to produce bottles of Gewürztraminer, by giving sweetheart and discriminatory deals to the wine makers of Abruzzo or Tuscany. The French can’t slap trade tariffs on English sparkling wine to maintain champagne’s predominance. And vice versa. That’s the deal. That’s the free movement of goods. That’s the single European market.

But imagine you are a Polish brewer, with low grain, labour and production costs, capable of churning out a quaffable cooking lager in large volumes. Imagine you want to sell your competitively priced hooch to the people of Scotland. And imagine also the Scottish Government has introduced a minimum unit price for alcohol that will considerably bump up the cost of your beer, squandering the competitive advantage you enjoy over British brewers. We suddenly have an EU law problem. We have a national government footering with the common market. We have a barrier to trade.

This, in a nutshell, is the argument that the Scotch Whisky Association and their allies took to Luxembourg. On a reference from the Court of Session, they sought to persuade the Court of Justice that Holyrood’s minimum alcohol policy was incompatible with EU law. Under the Scotland Act, Scottish legislation that cuts against European Union law is no law at all. The stakes are high.

The Scottish Government happily conceded its minimum pricing policy represented an interference with the single market, but critically, argued the interference was justified. They had to persuade the courts that the minimum unit pricing – firstly – has a legitimate aim, and – secondly – represents a proportionate interference in the common European market in alcohol.

The Lord Advocate secured an easy win on the first test. In introducing minimum unit pricing, MSPs were not engaging in protectionism by stealth.

Their goal was not to competitively disadvantage Portuguese, or Romanian, or Belgian alcohol producers, but to address Scotland’s unhealthy relationship with the bottle, and in particular, with buckets of high-strength, low-cost spirits and ciders. The court recognised this is an authentic public health measure.

But is minimum pricing proportionate? Here’s the nub of the case, and – despite some lurid headlines to the contrary – the critical question left unresolved by yesterday’s Luxembourg judgment. The Court didn’t say that minimum alcohol pricing violates EU law.

But nor did judges give Holyrood the green light to proceed with its plan to impose a minimum 50p price per unit. That question has been left to the Court of Session to decide.

For the EU court, proportionally means that the interference with the market “must not go beyond what is necessary” to obtain the public health objective. So, is minimum pricing the “least restrictive” alternative available to challenge Scotland’s troublesome drinking habits?

Yesterday, the EU Court held that increasing “the taxation of alcoholic drinks is liable to be less restrictive of trade in those products within the European Union” than minimum unit pricing. But alcohol duties aren’t devolved under the devolution settlement. Holyrood can’t choose to bump up the level of tax paid even on the most rotten of rotgut. Can our judges take this into account?

EU law is principally concerned with states. It ignores devolution, and the powers that Holyrood does and does not have.

But UK courts can and will read EU law against that backdrop. Nicola Sturgeon is confident she can persuade the courts that minimum pricing is proportionate and passes these tests. We shall see. The Court of Session will adjudicate the question in the new year.

The Supreme Court seems likely to have the last word.

A number of legal observers yesterday characterised the ECJ’s decision as “delphic”. The decision certainly attracted a host of misleading headlines. But as Professor Adam Tomkins recognised in a fair-minded intervention yesterday, minimum pricing is not dead. But calling the outcome of this case remains “far from easy”.

Minimum pricing for booze back in Scotland’s court