Key facts of the case:
The plaintiffs were Spanish citizens who were qualified pharmacists but not accredited to open a pharmacy. They practised their profession for several years in veterinary pharmacies. They wished to operate their own pharmacy and sought permission to do so in the Autonomous Community of Asturias in Spain. The relevant permit was denied by the Ministry of Health and Public Health Services of the Principality of Asturias. The decisions of the Asturian authorities were based on a regional Decree 72/2001 of 19 July 2001 regulating pharmacies and pharmaceutical dispensaries in the Principality of Asturias, which establishes a system of licensing including certain restrictions on the establishment of pharmacies within the Autonomous Community as well as a system governing the award of licences between competing candidates. The plaintiffs claimed that the decree violated their right to freedom of establishment under Article 43 EC.
Results (sanctions) and key consequences of the case:
The AG recommends that Article 43 EC Treaty precludes the types of national legislation applied in these cases under which authorisation is necessary for the setting-up of a new pharmacy and priority is given to those who have practised within a part of that Member State’s territory. The legislation was a restriction on the right to establishment and was not justified.
Interpretation of article(s) and implications for the resolution of the case:
National measures restricting the right to establishment “may be justified if they satisfy four conditions.” These are that (1) they are applied non-discriminatorily, (2) they are justified by imperative requirements in the general interest (3) they are suitable for securing the attainment of the objective pursued and (4) they do not go beyond what is necessary to attain that objective (para 12).
The AG concluded that “ensuring a distribution of pharmacies throughout [a] territory should be considered an imperative requirement in the general interest, and that the Member State is not required to use the vehicle of free competition to attempt to provide high-quality pharmaceutical services.” (para 19) Consequently, the right to health care in Article 35 which provides for health protection to be ensured in “all Union policies and activities” may be interpreted as overriding competition policy. However, the tests outlined in respect to Article 15 would still apply under current legal interpretation.