Zoltán Massay-Kosubek

Worms, 26. December, 2015. The European Court of Justice (ECJ) has delivered recently its strange ‘yes and no’ decision on the Scottish Public Health Policy called Minimum Unit Pricing (MUP) of alcohol. The Court ruled that in principle a public health policy which may harm internal market and competition (a policy making the cheapest alcoholic products more expensive) can be introduced on the ground of protecting human health but it is up to the Scottish Court to decide if this was the case. ( C‑333/14.).

It was no surprise to me to see that the less progressive part of the Alcohol industry took legal actions against a public health policy (while the more progressive Scottish industry supported it), but what was strange to me is rather the undecisive ‘decision’ of the ECJ. Recalling my memories as a clerk at Hungarian law courts I have seen in many cases judges hesitating to take a firm decision and they tried to find a backdoor or a legal reference to ‘escape’ the responsibility of ‘res iudicata’ (a judicial decision) instead. Being a legal mind myself, I don’t understand that legal approach.

Well, this might have been the case this time with the given ECJ decision, too. As regards the matter of law in the Alcohol MUP case, there is a legal conflict between Article 34 of the Treaty on the Functioning of the European Union (TFEU) (prohibition of Trade restrictions) and Article 36 TFEU (public health exception) and instead of making a firm and brave decision, the ECJ sent the case back to the Scottish Court with some instructions. This might explain why both parties claimed the decision as a ‘victory’ (see their tweets below).

My personal take-away is that the ECJ could have been less shy this time and a clear ‘pro-public health’ judgement which clearly recognises the right of sovereign states to protect their citizens’ health would have been very helpful for the European public health community.

Article 34 TFEU
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States

Article 36 TFEU

“The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restrictions on trade between Member States”

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