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    Rights statement: [url] The final, definitive version of this article has been published in the Journal, European Journal of Risk Regulation, ?, ?, pp ?-? 2019, © 2019 Cambridge University Press.

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Evidence and Proportionality in Free Movement Cases – The Impact of Scotch Whisky

Research output: Contribution to journalJournal article

Forthcoming
<mark>Journal publication date</mark>28/10/2019
<mark>Journal</mark>European Journal of Risk Regulation
Publication statusAccepted/In press
Original languageEnglish

Abstract

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.

Bibliographic note

[url] The final, definitive version of this article has been published in the Journal, European Journal of Risk Regulation, ?, ?, pp ?-? 2019, © 2019 Cambridge University Press.