Scotch Whisky Association: justifying barriers to trade

26 February 2016

Originally printed in Tax Journal on 26 Feb 2016.

The recent judgment of the Court of Justice in Scotch Whisky Association and Others v Lord Advocate and Advocate General for Scotland (C-333/14) (23 December 2015) provides further guidance on how national courts in the EU should review legislation restricting trade. The CJEU decided that excise duty, rather than a minimum selling price, was the correct mechanism to combat the evils of alcohol abuse. In doing so, the court applied a much more stringent proportionality test when deciding whether measures equivalent to quantitative restrictions could nevertheless be justified under TFEU article 36. However, in applying this strict proportionality test and considering alternative measures, the court showed no regard for the member state’s devolution arrangements and the actual powers of the authority by which the contested measure was adopted. The case highlights the complexities of policy making where both the legislative competence of a devolved administration and compatibility with EU law need to be considered.

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