A ruling by the European Court of Justice dealt a blow to the flagship SNP policy to tackle Scotland’s drink problem when it found the policy would restrict the drinks market.
Rather than imposing a minimum price, the Luxembourg-based court recommended using tax to increase the price of alcohol.
The ruling said it was now up to a domestic court to determine whether alternative measures would be as effective in achieving the public health benefit desired by the Scottish Government.
It means that the next round of the prolonged and expensive legal battle to introduce the policy will be fought in the Court of Session in Edinburgh, and could ultimately end up in the Supreme Court in London.
The legislation to bring in a minimum price of 50p per unit was passed by the Scottish Parliament in May 2012.
A legal challenge was brought by the Scotch Whisky Association (SWA), which argued the Scottish Government’s legislation breached European law. The European court ruling said: “The Court of Justice considers that the effect of the Scottish legislation is significantly to restrict the market, and this might be avoided by the introduction of a tax measure designed to increase the price of alcohol instead of a measure imposing a minimum price per unit of alcohol.”
It added: “The court states that it is ultimately for the national court to determine whether measures other than that provided for by the Scottish legislation, such as increased taxation on alcoholic drinks, are capable of protecting human life and health as effectively as the current legislation, while being less restrictive of trade in those products within the EU.”
When the case comes to the Court of Session in the New Year, the Scottish Government is likely to argue that it does not have the power to raise taxes on alcohol, as this is reserved to Westminster.
The legal battle began in 2012, when the SWA claimed the proposal was not within the powers of Scottish ministers and was incompatible with EU law.
When the SWA’s objections were first raised in the Court of Session, they were dismissed by Lord Doherty - a decision that delighted ministers and health campaigners who believe the policy will have a far reaching health benefit.
An appeal was launched immediately and the case moved to Europe.
The SWA reacted to the latest ruling by saying the court had confirmed its view that the policy would be illegal. Health charities accused the SWA of “blocking the democratic will” of the Scottish Parliament.
The British Medical Association claimed the delay in the introduction of the policy was costing lives. Dr Peter Bennie, of the BMA, said: “The Scottish Parliament first legislated for minimum pricing in 2012, but as 2016 approaches it has still not been implemented. Every year of delay carries with it a human cost in lives lost and health damaged.”