Has there been any update on the Scottish alcohol pricing case?

hatrickpatrick

Can't seem to find any recent news relating to it, but has there been any update on the Scottish case in the EU over minimum alcohol pricing?
The idea of introducing it in Ireland has reared it's head once again this week so seems like a good time to look into it.
Presumably it won't be implemented here until and unless the EU courts clear the way for it, seeing as it would immediately be challenged by the drinks lobby and blocked from being implemented?

conorh91

There hasn't yet been a ruling by the Court

Questions referred are here
http://curia.europa.eu/juris/document/document.jsf?docid=157554&doclang=EN

hatrickpatrick

conorh91 wrote: »

There hasn't yet been a ruling by the Court

Questions referred are here
http://curia.europa.eu/juris/document/document.jsf?docid=157554&doclang=EN

If the challenge doesn't succeed, is that the last avenue exhausted for blocking the legislation?
And while a decision hasn't been issued, can another government (such as ours) press ahead with the same legislation?

Carawaystick

I remember reading some IT article about the ec not being happy with a minimum price for cigarettes here.

The whole minimum pricing thing seems a regressive attack on poor people, would minimum pricing have stopped Bert, Brian or Patrick Donegan from making disastrous decisions?

Victor

Carawaystick wrote: »

The whole minimum pricing thing seems a regressive attack on poor people, would minimum pricing have stopped Bert, Brian or Patrick Donegan from making disastrous decisions?

But isn't insulting the president free (certainly at the point of access)?

You might give us some context on your comment.

conorh91

hatrickpatrick wrote: »

If the challenge doesn't succeed, is that the last avenue exhausted for blocking the legislation?

It's important to stress that the applicants are seeking a declaration of incompatibility with EU law.

The ECJ (and in fact the UK Supreme Court) have no power to strike down legislation in a way that the Irish or Canadian courts may strike down our national laws.

If the challenge is unsuccessful, there will be no legal bar on further legal challenges to minimum alcohol pricing, so long as subsequent challenges are brought on different grounds.

Nonetheless, opponents of minimum pricing are unlikely to be saving any stronger arguments up their sleeves, should this application fail. This is clearly the strongest case they can run.

Carawaystick

Victor wrote: »

But isn't insulting the president free (certainly at the point of access)?

You might give us some context on your comment.

So Bertie Aherne might not be a pisshead. but he had a lot of meetings in pubs.
I never spent a night in Fagans the bert wasn't at the left hand end of the bar on the way to the men's toilets.
Maybe Fagan's sold some drink prepared in some way the bert couldn't have had a sup across the road in saint lukes, or about 250m down the road in Celia Larkin's business.

Maybe Brian Cowen was stone cold sober on rté radio 1 the morning after the night before in the Ardilaun

Maybe Cearbhúil Ó Dáiligh was a overly sensitive soul, and Donegan wasnt a ignorant pisshead.

or maybe they all were and charging poor people a lot to drink would not help a jot. It seems highly paid public sector employees who drink a lot will not be affected, while struggling private and public sector workers will be.

hatrickpatrick

Wow, MMo'C is now claiming that €2.50 pints in pubs would be outlawed under minimum pricing plans. If that's the case, how much are they planning the minimum price to be? :eek:

http://www.independent.ie/irish-news/250-pub-pints-should-be-outlawed-says-fg-td-30880442.html

This is protectionism pure and simple and I can't see any way any competition authority would be ok with it. It's now plainly obvious that the VFI is being pandered to.

Little CuChulainn

It's been obvious for a long time.

johnnyskeleton

The fact that it is so blatantly aimed at the UK company trying to enter the market, having previously been driven out by the VFI cartel, makes it a great set of facts to argue the point on. And the owner of Wetherspoons is not afraid to take on governments etc

hatrickpatrick

johnnyskeleton wrote: »

The fact that it is so blatantly aimed at the UK company trying to enter the market, having previously been driven out by the VFI cartel, makes it a great set of facts to argue the point on. And the owner of Wetherspoons is not afraid to take on governments etc

Agreed. MMo'C has really shot herself in the foot with the timing of these remarks, during a very public spat between private interests in the alcohol trade. By taking sides in favour of Heineken (and therefore for the cartel-ish imposition of unfairly high prices for Irish publicans which in turn gets passed on to consumers), she has effectively ripped the "it's all about public health" mask away from the proponents of minimum pricing.

Up until now it's been about people binge drinking at home. By saying "we also don't want people drinking at reasonable prices in the pub", the public health argument has been completely undermined and decimated.

Again, it all comes down to courts and competition authorities. We have to hope they'll have the sense to see through the emotional blackmail of "do you want more vulnerable people to die in pools of drink induced vomit" and block this on the competition grounds which truly underpin why this is all happening in the first place.

hatrickpatrick

The government is moving ahead with this bill over the next few days, by the looks of things.

Would the EU get involved without someone bringing a case, or would Jameson or another Irish brewer / distillery have to make a complaint before the legislation would be held up pending the Scottish ruling?

FreudianSlippers

hatrickpatrick wrote: »

The government is moving ahead with this bill over the next few days, by the looks of things.

Would the EU get involved without someone bringing a case, or would Jameson or another Irish brewer / distillery have to make a complaint before the legislation would be held up pending the Scottish ruling?

No, it's very unlikely the EU would step unless a national court to refer a question to the ECJ on the specific legislation. To mind, I can't think of anything other than State Aid that would fall outside of this basic tenant of EU Law.

Paz-CCFC

There was a good point raised on Beoir.org and the Beer Forum about the wording of some of the Bill. (See here for the draught).

The Bill will prohibit the "sale or supply" of alcohol below the minimum price (head 6(1)). There's no definition given for "supply". As a cross-reference, the Misuse of Drugs Act 1977 interprets supply as including "giving without payment". If it were to be similarly interpreted in the Bill, it would mean that a business could not give away alcohol for free. As I would think is the legislature's intention, to prevent circumvention of the rule by retailers offering one beer for, say, €2.20 and another one for "free". However, this would also ban a number of other common practices. A bar pouring a small free sample for a customer to taste the beer before they try it, free tasters at brewery tours, homebrewers meeting and sharing their brews etc. Taken to the extreme, it could also illegalise practices as innocent as having friends over for dinner and sharing wine/beer (granted, this last point would be very difficult to enforce).

Subhead (8) of head 5 (the head which provides for labelling regulations) does state that the requirements of the Bill only relate to "products for sale in the State". It would seem to apply to the whole Bill, but it seems strange that it wouldn't be place in the preliminary Part 1, rather than specifically in the section for labelling. If it does apply to the whole Bill, then private brewers would likely be safe from prosecution. However, pubs offering free samples would seem not to be. And sharing a bottle of wine purchased from an off-licence - that wine is/was for sale, just not by the person sharing it with friends.

Even without the arguments of anti-competitive behaviour, quantative restrictions etc., this Bill seems to have a few holes in it with poor wording that the draughtsmen need to look at before it's enacted.

FreudianSlippers

Paz-CCFC wrote: »

There was a good point raised on Beoir.org and the Beer Forum about the wording of some of the Bill. (See here for the draught).

lulz. I see what you did there. :pac:

The Bill will prohibit the "sale or supply" of alcohol below the minimum price (head 6(1)). There's no definition given for "supply". As a cross-reference, the Misuse of Drugs Act 1977 interprets supply as including "giving without payment". If it were to be similarly interpreted in the Bill, it would mean that a business could not give away alcohol for free.

I don't think it would be. Firstly, the draft bill would almost certainly get definitions added before it was published properly. Secondly, in the draft bill, they state that "all other definitions above are taken from section 2 of the Intoxicating Liquor Act 2003" - which would lead me to believe that the sections in the Bill will be proposals to amend previous legislation and, particularly in relation to minimum pricing, section 20 of the 2003 Act.

As I would think is the legislature's intention, to prevent circumvention of the rule by retailers offering one beer for, say, €2.20 and another one for "free". However, this would also ban a number of other common practices. A bar pouring a small free sample for a customer to taste the beer before they try it, free tasters at brewery tours, homebrewers meeting and sharing their brews etc. Taken to the extreme, it could also illegalise practices as innocent as having friends over for dinner and sharing wine/beer (granted, this last point would be very difficult to enforce).

Subhead (8) of head 5 (the head which provides for labelling regulations) does state that the requirements of the Bill only relate to "products for sale in the State". It would seem to apply to the whole Bill, but it seems strange that it wouldn't be place in the preliminary Part 1, rather than specifically in the section for labelling. If it does apply to the whole Bill, then private brewers would likely be safe from prosecution. However, pubs offering free samples would seem not to be. And sharing a bottle of wine purchased from an off-licence - that wine is/was for sale, just not by the person sharing it with friends.

Even without the arguments of anti-competitive behaviour, quantative restrictions etc., this Bill seems to have a few holes in it with poor wording that the draughtsmen need to look at before it's enacted.

Again, it's impossible to see without actually seeing the text of the proposed Bill (which this draft does not contain) but if you view the 2003 Act, you will see it is directed at "licensees" being holders of a "licence" being a licence for the sale of intoxicating liquor, whether granted on production or without production of a certificate of the Circuit Court or District Court.

Viewing this with s16 of the 2008 Act, I don't think that it is as much of a slippery slope as you believe. Although, again, it would entirely depend on the text of the Bill that is proposed.

Paz-CCFC

FreudianSlippers wrote: »

lulz. I see what you did there. :pac:

Hah, a total fluke on my part, but I'm happy to take the plaudits!

I don't think it would be. Firstly, the draft bill would almost certainly get definitions added before it was published properly. Secondly, in the draft bill, they state that "all other definitions above are taken from section 2 of the Intoxicating Liquor Act 2003" - which would lead me to believe that the sections in the Bill will be proposals to amend previous legislation and, particularly in relation to minimum pricing, section 20 of the 2003 Act.


Again, it's impossible to see without actually seeing the text of the proposed Bill (which this draft does not contain) but if you view the 2003 Act, you will see it is directed at "licensees" being holders of a "licence" being a licence for the sale of intoxicating liquor, whether granted on production or without production of a certificate of the Circuit Court or District Court.

Viewing this with s16 of the 2008 Act, I don't think that it is as much of a slippery slope as you believe. Although, again, it would entirely depend on the text of the Bill that is proposed.

Some good points. I thought that the actual Bill was published, my mistake. I was wondering why it couldn't be found on the Oireachtas website!

If it were restricted to licensed premises, it would thankfully not criminalise private individuals. But it might still bar some of the simple, common practices of pubs that I mentioned, such as giving out free tasters of drinks for free etc. They could charge for them, but that wouldn't be great for the consumer who wants to try a few different beers before buying. Although, this last point would be a consumer issue, rather than legal. Unless, a potential issue re competition/consumer law is there to prevent banning of free samples, as it allows a consumer to come to an informed choice on the product? (I understand that's a bit of a reach and even then, the public policy/morality/protection of health argument might allow it).

A specific mention of the particular licensed would probably allow for things like tasting at the brewery. An interesting case might be where a premises holds both a licence to brew beer for sale and a retail licence (eg, a brewpub). Would licences distinguish between parts of the one address (ie, the brewery from the pub) or, if all seen as the one, distinguish between which licence is being exercised at a specific time (ie, a drink at the end of a brewery tour would not be exercising the retail licence).

A few interesting, if academic potential issues. But, as you said, the full text of the Bill will give a better understanding.

Peregrinus

All your points are good. But there is also the (not uncommon) solution of selective enforcement. Even if the Bill as enacted did appear to prohibit tasters, the authorities could simply establish a policy of not prosecuting licensees who provide modest tasting samples.

Robbo

The Advocate General will issue their opinion on Thursday. Usual caveats apply, the AG's opinion is followed 80% of the time but there's always Van Gend En Loos.

Robbo

AG Yves Bot has found against minimal pricing, on proportionality grounds it seems.

Opinion here.

hatrickpatrick

EU law folk, what impact would ye say today's decision will have on the Irish proposals, assuming the final ruling is in line with the AG's ruling?

The government has to prove that taxation wouldn't achieve the same ends. Presumably the protectionist argument of not wanting to deprive the on trade of profits from its already extortionate drink prices won't fly at EU level, where such anti-competitive protectionism appears to be incredibly unpopular?

Thoughts?

FreudianSlippers

hatrickpatrick wrote: »

EU law folk, what impact would ye say today's decision will have on the Irish proposals, assuming the final ruling is in line with the AG's ruling?

The government has to prove that taxation wouldn't achieve the same ends. Presumably the protectionist argument of not wanting to deprive the on trade of profits from its already extortionate drink prices won't fly at EU level, where such anti-competitive protectionism appears to be incredibly unpopular?

Thoughts?

From reading the judgment, IMO the taxation issue was just the last nail in the coffin - the argument for MUP was over on the basis of quantitative restrictions on imports and free movement of goods.


The taxation issue was raised more with regard to (IMO) the fifth question about measures with the same objective as MUP pursuant to Art 36 TFEU which would comply with Art 34 TFEU - i.e. where those similar measures may be discarded on the grounds that they bring further and additional benefits beyond the scope of Art 36 and the MUP objectives.

IsaacWunder

Pubowners expressed disappointment with the ruling. The Licensed Vintners Association, representing Dublin publicans, said it represented a lost opportunity for public health policy and was a blow for the ontrade.

If Weatherspoons weren't trying to crack the Irish market they'd be opposing this tooth and nail.

The publicans have as much interest in public health policy as cats have in the wellbeing of mice.