Responding to today’s European Court of Justice rulings on Minimum Alcohol Pricing in Scotland, the Working Time Directive in the Greek Health Service and the Tobacco Products Directive, Vote Leave Director Paul Stephenson said:

‘These rulings lay bare just how much control EU judges have over our NHS. Unelected EU judges have struck down plans to curb binge drinking and have refused to allow Greece to change its doctors’ working hours.

‘The people we vote for should make important decisions about how our NHS is run not unaccountable EU judges.

‘David Cameron said he would get an opt-out for the NHS but he has now ditched that promise. The only way we can take back control is to Vote Leave.’

Notes to editors

1. The European Court of Justice (ECJ) today handed down its judgment in Scotch Whisky Association v Lord Advocate (Case C-333/14) (ECJ press release).

• The ECJ decided that minimum alcohol pricing was contrary to EU law ‘where it is possible for health to be protected equally effectively by less restrictive tax measures’ affecting ‘moderate drinkers’. The ECJ held that minimum alcohol pricing constituted ‘an obstacle to the free movement of goods’ which had to be justified by the Scottish Government. The Court suggested a minimum price’s impact on the market ‘might be avoided by the introduction of a tax measure designed to increase the price of alcohol’. It said it was irrelevant that the tax measure might affect ‘not only hazardous or harmful drinkers, but also moderate drinkers’. The case will now return to the courts in Scotland for a final decision.

• It is the settled will of the Scottish Parliament to introduce minimum alcohol pricing: Since the Scottish National Party (SNP) entered office in 2007, it has had a clear policy of introducing a mandatory minimum price for alcohol. The SNP’s manifesto for the Scottish parliamentary elections in 2011 stated (at p. 15) that:

‘Our effort to introduce minimum pricing was blocked by opposition politicians who were prepared to put party politics ahead of public health. Minimum pricing of alcohol is evidence based, and supported by doctors, nurses, the police and all those on the front line who deal with the effects of alcohol abuse. An SNP government will introduce a Minimum Pricing Bill as a priority in our first legislative programme and we will seek to build a coalition of support for it in Parliament to match the one that already exists outside of Parliament.’

The SNP won a majority in those elections. On 29 June 2012, the Alcohol (Minimum Pricing) (Scotland) Act 2012 received Royal Assent. This allows the Scottish Government to set a minimum price for alcohol sold to the general public. It intends to set it at £0.50 per unit.

• The Scottish Parliament has been frustrated by EU legal challenges for over two years: The Scotch Whisky Association (SWA) and other companies sought judicial review of the 2012 Act. They claimed it was void because it was inconsistent with EU law. On 3 May 2013, Lord Doherty, sitting in the Outer House of the Court of Session, dismissed the SWA’s petition for judicial review. The SWA brought a reclaiming motion (appeal) to the Inner House, which decided to refer six questions to the ECJ on 30 April 2014.

On 3 September 2015, Advocate General Yves Bot issued his opinion. He stated that because the legislation stopped importers of alcohol from selling liquor at a price which reflected their lower costs of production, the legislation constituted a measure ‘equivalent to a quantitative restriction on imports’, which is prima facie prohibited by EU law. Accordingly, the Scottish Government had to show that the legislation was ‘proportionate’. The Advocate General concluded that while it was ultimately for the Court of Session to decide whether the measure was ‘proportionate’, it ‘is difficult to justify the rules at issue, which appear to me to be less consistent and effective than an “increased taxation” measure and may even be perceived as being discriminatory.’

2. The ECJ today handed down judgment in Commission v Greece (Case C-180/14) ruling that Greece had infringed the Working Time Directive (ECJ press release).

• The Court ruled that because Greek law had ‘the effect of making it possible to impose a working week exceeding the 48-hour limit’ on doctors, it was contrary to EU law. It also found that a national law which allows for the possibility for doctors to be on call for 24 consecutive hours was contrary to EU law.

• The Commission took Greece to court in April 2014 for failing to implement the Working Time Directive (WTD): The Commission claimed that Greece had issued ‘a series of legislative measures which suspended the application of the implementing legislation to salaried doctors and trainee doctors within the public service’. It challenged Greek legislation by which ‘it is provided that “the hospital doctors of the National Health Service, the university doctors and trainee doctors shall carry out the on-call duties required to ensure the safe operation of the hospitals and health centres”.’ In so doing, the Commission argued, Greece ‘seriously diverge[d] from the minimum requirements imposed’ by EU law.

• Doctors oppose the application of the WTD to the NHS:

• The Royal College of Surgeons has said that the Directive has led to ‘less time to learn’, ‘continuity of care worsening’, ‘not enough staff to adequately cover shifts’, ‘poor availability of experienced staff’, ‘staff too tired’, and a ‘lack of professionalism’. It has stated ‘we believe the EWTR is also having a negative impact on patients and staff’ (RCS, June 2013, link).

• The Royal College of Radiologists has said ‘time for training is being seriously hampered’ (RCR, November 2013, link).

• The Royal College of Physicians says the Directive has ‘resulted in staffing pressures, with implications for the delivery of patient care and the training of junior doctors (RCP, 22 November 2013, link).

• The UK Government has previously been very critical of the impact of the WTD on the NHS:

• ‘That this House… is disturbed by the negative impact of the Directive on medical training and on the viability of some frontline services’ (David Cameron, Opposition Motion, 11 March 2009, link).

• ‘The way the directive now applies is clearly unsatisfactory and is causing great problems for health services across Europe. These difficulties are clearly reflected in the evidence from junior doctors that the implementation of the 48-hour week EWTD has impacted adversely on training and has been accompanied by unwelcome imposition of shift practices’ (Health Secretary Andrew Lansley, Hansard, 9 June 2010, link).

• ‘The scale of increase in the cost of agency staff in the NHS is unacceptable. There is also a practical concern about continuity of care for patients. It is clear that the The [sic] European Working Time is having an impact on the number of locum doctors’ (Andrew Lansley, The Telegraph, 10 November 2010, link).

• ‘We ought to determine what hospitals we want, and then think about the training modules, but the EU working time directive was getting in the way’ (David Cameron, Hansard, 18 January 2012, link).

• The UK Government once promised to renegotiate the WTD to protect the NHS:

• ‘We will want to negotiate the return of Britain's opt-out from social and employment legislation in those areas which have proved most damaging to our economy and public services for example the aspects of the Working Time Directive which are causing real problems in the NHS and the Fire Service’ (David Cameron, BBC News, 4 November 2009, link).

• ‘I'm very clear that together with my right honourable friend Mr Cable, we need to take the European Working Time Directive back to the EU, we need to discuss it again. We need to go there with the intention of maintaining the opt-out and of giving ourselves, not least in the health context, the flexibility which we lack’ (Andrew Lansley, Department of Health, 8 September 2010, link).

• ‘I am working with the Secretary of State for Business, Innovation and Skills in taking a robust approach to future negotiations on the revision of the Directive’ (Andrew Lansley, The Telegraph, 10 November 2010, link).

• ‘Andrew Lansley and Vince Cable are committed to revising the Directive at an EU level to give the NHS the flexibility it needs and EU negotiations are already underway’ (Spokesman for Department of Health, Telegraph, 14 November 2011, link).

• ‘The Health and Business Secretaries are committed to revising the directive at EU level to give the NHS the flexibility it needs to deliver the best and safest service to patients. We will work urgently to bring that about’ (David Cameron, Hansard, 18 January 2012, link).

• The Chancellor confirmed this promise had been dropped along with 90% of the Government’s demands

• ‘[O]f course we are looking for competitive employment regulation, but are we seeking to put the Working Time Directive front and centre of our renegotiation? No, we are not’ (George Osborne, Oral Evidence to Treasury Select Committee, 1 December 2015, p. 9, link)

• Research by Vote Leave has shown that the Government has dropped 9 out of 10 of its demands to change the EU.

3. Advocate General Juliane Kokott today delivered her opinion that the EU’s Tobacco Products Directive II is valid (ECJ press release).  

• The Advocate General observes that the EU institutions treat ‘subsidiarity’ as a form of words rather than a serious principle. The Advocate General ‘strongly advises the Union legislature to avoid in future empty formulas on the principle of subsidiarity like the one contained in the directive and instead to enhance the preamble to the EU measure in question with sufficiently substantial statements regarding the principle of subsidiarity which are tailored to the measures in question.’

• The Prime Minister has put ‘subsidiarity’ at the heart of his renegotiation. In his letter to the President of the European Council, Donald Tusk, of 10 November 2015, the Prime Minister said ‘I want to see the EU's commitments to subsidiarity fully implemented’.