Scotch Whisky Association and Others v The Lord Advocate and The Advocate General for Scotland.
Date: 2015-12-23
19. Consequently, the Member States retain in principle the competence to adopt certain measures which are not provided for in the Single CMO Regulation, provided that those measures are not such as to undermine that regulation or create exceptions to it or interfere with its proper operation (see, to that effect, judgment in Kuipers , C‑283/03, EU:C:2005:314, paragraph 37 and the case-law cited).
20. As regards the setting of a minimum price, as the Advocate General stated in points 31 and 37 of his Opinion, in the absence of a pricing mechanism, the free formation of selling prices on the basis of fair competition is a component of the Single CMO Regulation and constitutes the expression of the principle of free movement of goods in conditions of effective competition.
21. In the main proceedings, it must be observed that the effect of imposing an MPU is that it will be impossible, in any event, for the retail selling price of wines, produced locally or imported, to be lower than the obligatory minimum price. Such a measure is therefore liable to undermine competition by preventing some producers or importers from taking advantage of lower cost prices so as to offer more attractive retail selling prices (see, to that effect, judgments in Commission  v France , C‑197/08, EU:C:2010:111, paragraph 37, and Commission  v Ireland , C‑221/08, EU:C:2010:113, paragraph 40).
22. In that regard, the Court has previously ruled that the common organisations of the market are based on the concept of an open market to which every producer has free access under conditions of effective competition (judgment in Milk Marque and National Farmers’ Union , C‑137/00, EU:C:2003:429, paragraph 59 and the case-law cited).
23. Further, it must be borne in mind that one of the objectives of the CAP is the maintenance of effective competition in the markets for agricultural products (judgment in Panellinios Syndesmos Viomichanion Metapoiisis Kapnou , C‑373/11, EU:C:2013:567, paragraph 37), which is reflected in a number of recitals of the Single CMO Regulation, such as recitals 15, 43, 172 and 174.
26. It is clear, indeed, that the establishment of a CMO 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 CMO even if those rules are likely to have an effect on the functioning of the common market in the sector concerned (see judgment in Hammarsten , C‑462/01, EU:C:2003:33, paragraph 29 and the case-law cited).
28. A restrictive measure such as that provided for by the national legislation at issue in the main proceedings must, however, satisfy the conditions set out in the Court’s case-law with respect to 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 (see, by analogy, judgment in Berlington Hungary and Others , C‑98/14, EU:C:2015:386, paragraph 64), which the Court will consider in its examination of the second to sixth questions, which specifically concern the analysis of the proportionality of that legislation. It must be observed that, in any event, the issue of proportionality must be examined by taking into consideration, in particular, the objectives of the CAP and the proper functioning of the CMO, which necessitates that those objectives be weighed against the objective pursued by that legislation, namely the protection of public health.
31. First, it must be observed that, in accordance with settled case-law, all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of Article 34 TFEU (see, inter alia, judgments in Dassonville , 8/74, EU:C:1974:82, paragraph 5, and Juvelta , C‑481/12, EU:C:2014:11, paragraph 16).
32. As the Advocate General stated in points 59 and 60 of his Opinion, the fact that the legislation at issue in the main proceedings prevents the lower cost price of imported products being reflected in the selling price to the consumer means, by itself, that that legislation is capable of hindering the access to the United Kingdom market of alcoholic drinks that are lawfully marketed in Member States other than the United Kingdom of Great Britain and Northern Ireland, and constitutes therefore a measure having an effect equivalent to a quantitative restriction within the meaning of Article 34 TFEU (see, to that effect, judgments in Commission  v Italy , C‑110/05, EU:C:2009:66, paragraph 37; ANETT , C‑456/10, EU:C:2012:241, paragraph 35; and Vilniaus energija , C‑423/13, EU:C:2014:2186, paragraph 48), as is, it may be said, not disputed by either the referring court or any of the parties who have submitted observations in this case.
33. In accordance with settled case-law, a measure having equivalent effect to a quantitative restriction on imports 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 (see, to that effect, judgment in ANETT , C‑456/10, EU:C:2012:241, paragraph 45 and the case-law cited).
35. It is therefore clear that the legislation at issue in the main proceedings pursues, more generally, the objective of the protection of the health and life of humans that ranks foremost among the assets or interests protected by Article 36 TFEU. It is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they wish to assure (judgment in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 39 and the case-law cited).
37. Further, it must be borne in mind that a restrictive measure can be considered to be an appropriate means of securing the achievement of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner (see, to that effect, judgment in Kakavetsos-Fragkopoulos , C‑161/09, EU:C:2011:110, paragraph 42, and, by analogy, judgment in Berlington Hungary and Others , C‑98/14, EU:C:2015:386, paragraph 64).
41. It must, moreover, be stated that national legislation or practice cannot benefit from the derogation laid down in Article 36 TFEU if human life and health can be as effectively protected by measures that are less restrictive of trade within the European Union (judgment in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 43 and the case-law cited).
44. Further, it is clear that tax legislation constitutes an important and effective tool to discourage the consumption of alcoholic drinks and, therefore, to protect public health. The objective of ensuring that the prices of those drinks are set at high levels can adequately be pursued by their increased taxation, since increases in excise duties must sooner or later be reflected in increased retail selling prices, without impinging on the free formation of prices (see, by analogy, judgments in Commission  v Greece , C‑216/98, EU:C:2000:571, paragraph 31, and Commission  v France , C‑197/08, EU:C:2010:111, paragraph 52).
53. Since a prohibition such as that which arises from the national legislation at issue in the main proceedings amounts to a derogation from the principle of the free movement of goods, it is for the national authorities to demonstrate that that legislation is consistent with the principle of proportionality, that is to say, that it is necessary in order to achieve the declared objective, and that that objective could not be achieved by prohibitions or restrictions that are less extensive, or that are less disruptive of trade within the European Union (see, to that effect, judgment in Franzén , C‑189/95, EU:C:1997:504, paragraphs 75 and 76, and Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 50).
54. In that regard, the reasons which may be invoked by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State, and specific evidence substantiating its arguments (see, to that effect, judgments in Lindman , C‑42/02, EU:C:2003:613, paragraph 25; Commission  v Belgium , C‑227/06, EU:C:2008:160, paragraph 63; and ANETT , C‑456/10, EU:C:2012:241, paragraph 50).
55. It must however be stated that that burden of proof cannot extend to creating the requirement that, where the competent national authorities adopt national legislation imposing a measure such as the MPU, they must prove, positively, that no other conceivable measure could enable the legitimate objective pursued to be attained under the same conditions (see, to that effect, judgment in Commission  v Italy , C‑110/05, EU:C:2009:66, paragraph 66).
59. It follows from the foregoing that 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 CMO.
The third question
62. It must be stated at the outset the requirements of EU law must be complied with at all relevant times, whether that is the time when a measure is adopted, when it is implemented or when it is applied to the case in point (judgment in Seymour-Smith and Perez , C‑167/97, EU:C:1999:60, paragraph 45).