Making Markets Work in the Public Interest: Combating Hazardous Alcohol Consumption through Minimum Pricing Rules in Scotland

Summary:

This paper will examine the current approaches to price control rules and then critique them against the wider background of the principles governing, respectively, Union action in the field of internal market policy and Member States’ intervention directed at safeguarding high levels of public health. Thereafter this article will explore a number of alternative interpretations of Article 34 of the Treaty on the Functioning of the European Union (TFEU) that can help reflect the requirements enshrined in the principles governing the allocation of competences. In that context it will review examples emerging from the EU law acquis concerning the application of internal market rules as well as the principles of competition. It will be suggested that conferring a more ‘selective’ scope of application for Article 34 could be both possible, in light of existing case law, and consistent with the nature of the internal market as an area of shared competence, whose exercise must always comply with the principle of conferral.

The paper will conclude that the Alcohol (Minimum Pricing) (Scotland) Act 2012 is a bold and at the same time controversial attempt to tackle a ‘local’ public health emergency. Nonetheless, this enactment has once again exposed the tension between the Member States’ ‘right to regulate’ their economies for genuine public interest reasons and the EU’s concern for maintaining the integrity of the internal market.