Rights statement: https://www.cambridge.org/core/journals/european-journal-of-risk-regulation/article/evidence-and-proportionality-in-free-movement-cases-the-impact-of-the-scotch-whisky-case/9541D8F24CD3DEA051E41629CEF45AB1 The final, definitive version of this article has been published in the Journal, European Journal of Risk Regulation, 11, 1, pp 109-130 2020, © 2020 Cambridge University Press.
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Research output: Contribution to Journal/Magazine › Journal article › peer-review
Research output: Contribution to Journal/Magazine › Journal article › peer-review
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TY - JOUR
T1 - Evidence and Proportionality in Free Movement Cases
T2 - The Impact of the Scotch Whisky Case
AU - Macculloch, Angus
AU - Bartlett , Oliver
N1 - https://www.cambridge.org/core/journals/european-journal-of-risk-regulation/article/evidence-and-proportionality-in-free-movement-cases-the-impact-of-the-scotch-whisky-case/9541D8F24CD3DEA051E41629CEF45AB1 The final, definitive version of this article has been published in the Journal, European Journal of Risk Regulation, 11, 1, pp 109-130 2020, © 2020 Cambridge University Press.
PY - 2020/3/1
Y1 - 2020/3/1
N2 - Market interventions to protect public health are likely to be subject to EU law challenge as contrary to the free movement rules. In Scotch Whisky the CJEU stressed the importance of defined public health objectives and supporting evidence in the analysis of whether interventions are justified as ‘appropriate’ and ‘necessary’. This article considers the wider implications of this judgment for the application of the proportionality test in free movement cases and in the case of innovative interventions that are adopted on a complex evidence base. The article argues that the unusual development that Scotch Whisky made to the CJEU’s wider trend towards greater engagement with evidence should be treated with caution, and that it is possible for national courts to apply the new guidance on the role of evidence in the proportionality analysis with sensitivity. The article also argues that policymakers must now be more aware of how they frame innovative interventions and the evidence supporting them.
AB - Market interventions to protect public health are likely to be subject to EU law challenge as contrary to the free movement rules. In Scotch Whisky the CJEU stressed the importance of defined public health objectives and supporting evidence in the analysis of whether interventions are justified as ‘appropriate’ and ‘necessary’. This article considers the wider implications of this judgment for the application of the proportionality test in free movement cases and in the case of innovative interventions that are adopted on a complex evidence base. The article argues that the unusual development that Scotch Whisky made to the CJEU’s wider trend towards greater engagement with evidence should be treated with caution, and that it is possible for national courts to apply the new guidance on the role of evidence in the proportionality analysis with sensitivity. The article also argues that policymakers must now be more aware of how they frame innovative interventions and the evidence supporting them.
KW - EU Law
KW - Free Movement
KW - Public Health
KW - Proportionality
KW - Alcohol Pricing
KW - Evidence
KW - Framing
U2 - 10.1017/err.2019.64
DO - 10.1017/err.2019.64
M3 - Journal article
VL - 11
SP - 109
EP - 130
JO - European Journal of Risk Regulation
JF - European Journal of Risk Regulation
SN - 1867-299X
IS - 1
ER -