Case C‑333/14
Scotch Whisky Association and Others
v
Lord Advocate and Advocate General for Scotland
(Request for a preliminary ruling
from the Court of Session (Scotland))
(Reference for a preliminary ruling — Common organisation of the markets in agricultural products — Regulation (EU) No 1308/2013 — Free movement of goods — Article 34 TFEU ‐ Quantitative restrictions — Measures having equivalent effect — Minimum price of alcoholic drinks calculated according to the alcoholic strength of the product — Justification — Article 36 TFEU ‐ Protection of human life and health — Assessment by the national court)
Summary — Judgment of the Court (Second Chamber), 23 December 2015
1. Agriculture — Common organisation of the markets — Wine — National legislation imposing a minimum price per unit of alcohol for the retail selling of wines— Lawfulness — Justification — Protection of human life and health — Condition — Observance of the principle of proportionality
(Regulation No 1308/2013 of the European Parliament and of the Council, Art. 167)
2. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National legislation imposing a minimum price per unit of alcohol for the retail selling of alcoholic drinks — Whether permissible — Justification — Protection of human life and health — Obligation to adopt the least restrictive measures — To be determined by the national court
(Arts 34 TFEU and 36 TFEU)
3. Free movement of goods — Exceptions — Protection of human life and health — National legislation imposing a minimum price per unit of alcohol for the retail selling of alcoholic drinks — Justification — Condition — Observance of the principle of proportionality — Criteria for assessment — Date to be taken into consideration
(Art. 36 TFEU)
1. Regulation No 1308/2013 establishing a common organisation of the markets in agricultural products and repealing Regulations No 922/72, No 234/79, No 1037/2001 and No 1234/2007 must be interpreted as not precluding a national measure which imposes a minimum price per unit of alcohol for the retail selling of wines, provided that that measure is in fact an appropriate means of securing the objective of the protection of human life and health and that, taking into consideration the objectives of the common agricultural policy and the proper functioning of the common organisation of agricultural markets, it does not go beyond what is necessary to attain that objective of the protection of human life and health.
Regulation No 1308/2013 contains neither provisions that permit the fixing of the retail selling prices of wines, either at national or EU level, nor provisions that prohibit Member States adopting national measures fixing such prices. Consequently, the Member States retain in principle the competence to adopt certain measures which are not provided for in that regulation, provided that those measures are not such as to undermine that regulation or create exceptions to it or interfere with its proper operation. In that regard, the imposition of a minimum price per unit of alcohol is liable to undermine Regulation No 1308/2013 in that such a measure is incompatible with the principle that is the foundation of that regulation: the free formation of selling prices of agricultural products on the basis of fair competition. However, since the establishment of a common organisation of agricultural markets does not prevent the Member States from applying national rules intended to attain an objective relating to the general interest other than those covered by that organisation, a Member State may rely on the objective of the protection of human life and health in order to justify a measure which undermines the system, on which Regulation No 1308/2013 is founded, of free formation of prices in conditions of effective competition.
A restrictive measure must, however, satisfy the principle of proportionality, that is, the measure must be appropriate for attaining the objective pursued, and must not go beyond what is necessary to attain that objective. The issue of proportionality must be examined by taking into consideration, in particular, the objectives of the common agricultural policy and the proper functioning of the common organisation of agricultural markets, which necessitates that those objectives be weighed against the objective pursued by the national legislation, namely the protection of public health.
(see paras 17, 19, 24, 26-29, operative part 1)
2. Articles 34 TFEU and 36 TFEU must be interpreted as precluding a Member State choosing, in order to pursue the objective of the protection of human life and health by means of increasing the price of the consumption of alcohol, the option of legislation that imposes a minimum price per unit of alcohol for the retail selling of alcoholic drinks and rejecting a measure, such as increased excise duties, that may be less restrictive of trade and competition within the European Union. The fact that the latter measure may procure additional benefits and be a broader response to the objective of combating alcohol misuse cannot in itself justify the rejection of that measure.
The fact that that legislation prevents the lower cost price of imported products being reflected in the selling price to the consumer means, by itself, that it is capable of hindering the access to the national market of alcoholic drinks that are lawfully marketed in the other Member States, and constitutes therefore a measure having an effect equivalent to a quantitative restriction within the meaning of Article 34 TFEU. As such, that measure can be justified, for example, on grounds of the protection of the health and life of humans, under Article 36 TFEU, only if that measure is appropriate for securing the achievement of the objective pursued and does not go beyond what is necessary in order to attain it. As regards the appropriateness of the legislation at issue to attaining its objective of the protection of human life and health, it does not seem unreasonable to consider that a measure that sets a minimum selling price of alcoholic drinks, the very specific aim of which is to increase the price of cheap alcoholic drinks, is capable of reducing the consumption of alcohol, in general, and the hazardous or harmful consumption of alcohol, in particular, given that drinkers whose consumption can be so described purchase, to a great extent, cheap alcoholic drinks.
As regards the issue of whether that national legislation goes beyond what is necessary in order effectively to protect human life and health, a fiscal measure which increases the taxation of alcoholic drinks is liable to be less restrictive of trade in those products within the European Union than a measure imposing a minimum price per unit of alcohol. The reason is that the latter measure significantly restricts the freedom of economic operators to determine their retail selling prices and, consequently, constitutes a serious obstacle to access to the national market of alcoholic drinks lawfully marketed in the other Member States and to the operation of fair competition in that market. In that regard, the fact that increased taxation of alcoholic drinks entails a generalised increase in the prices of those drinks, affecting both drinkers whose consumption of alcohol is moderate and those whose consumption is hazardous or harmful, does not appear, in the light of the twofold objective pursued by the national legislation at issue, to lead to the conclusion that such increased taxation is less effective than the measure chosen. On the contrary, the fact that an increased taxation measure may be capable of procuring additional benefits as compared with the imposition of a minimum price per unit of alcohol, by contributing to the achievement of the general objective of combating alcohol misuse, not only cannot constitute a reason to reject such a measure, but is in fact a factor to support that measure being preferred to the measure imposing an minimum price per unit of alcohol.
(see paras 32, 33, 36, 46-48, 50, operative part 2)
3. Article 36 TFEU must be interpreted as meaning that, where a national court examines national legislation in the light of the justification relating to the protection of the health and life of humans, under that article, it is bound to examine objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned 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 the free movement of goods and of the common organisation of agricultural markets.
As regards national legislation which imposes a minimum price per unit of alcohol for the retail selling of alcoholic drinks, the national court may take into consideration the possible existence of scientific uncertainty as to the actual and specific effects on the consumption of alcohol of such a measure for the purposes of attaining the objective pursued. The fact that the national legislation provides that the setting of a minimum price per unit of alcohol will expire after a certain period, unless the national legislature decides that it is to continue, is a factor that the national court may also take into consideration. That court must also assess the nature and scale of the restriction on the free movement of goods resulting from a measure such as the minimum price per unit of alcohol, by comparison with other possible measures which are less disruptive of trade within the European Union, and the effect of such a measure on the proper functioning of the common organisation of the agricultural markets, that assessment being intrinsic to the examination of proportionality.
Further, as regards the date on which the lawfulness of the measure at issue is to be assessed, Article 36 TFEU must be interpreted as meaning that the review of proportionality of a measure imposing a minimum price per unit of alcohol for the retail selling of alcoholic drinks is not to be confined to examining only information, evidence or other material available to the national legislature when it adopted such a measure. In that regard, in circumstances where the national court is called upon to examine the compatibility of national legislation with EU law when that legislation has not yet entered into force within the national legal order, the compatibility of that measure with EU law must be reviewed on the basis of the information, evidence or other material available to the national court on the date on which it gives its ruling, under the conditions laid down by its national law.
(see paras 57-59, 63, 65, operative part 3, 4)