Brussels, 01/06/2010 (Agence Europe) - In its judgment in joined cases C-570/07 and C-571/07 on Tuesday 1 June, the EU Court of Justice ruled that the demographic and geographic limits set by Asturian legislation for the opening of new pharmacies (one pharmacy per unit of 2,800 inhabitants and no additional pharmacy to be opened until that threshold has been exceeded, that pharmacy being established for the fraction above 2,000 inhabitants, and no pharmacy to be opened within 250 metres of another) constitute a restriction on the freedom of establishment. These limits are, nevertheless, compatible with European Union law insofar as they pursue a goal of general interest. They must, however, be adjusted so as not to prevent, in areas with special demographic characteristics, the setting up of a sufficient number of pharmacies to ensure adequate pharmaceutical services. In this respect, the case is an important one since several European countries apply similar types of restrictions.
The Court concluded that the Asturian legislation was discriminatory and infringed freedom of establishment with regard to selection criteria for new pharmacy owners, this selection being based on a points system which favours national pharmacists over those from other member states.
The matter was referred to the Court of Justice by the Tribunal Superior de Justicia de Asturias, uncertain whether the Asturian decree, the stated aim of which is to promote the opening of pharmacies in less populated areas and to provide a sure and high quality supply of medicines, was compatible with Article 43 of the EC Treaty. The Court ruled that the latter aim constituted an over-riding reason relating to the general interest, which could be used to justify the geographical and demographic restrictions set out above. Furthermore, it noted that these restrictions were applied uniformly in the region with no discrimination on the grounds of nationality. However, to be acceptable, the regional restrictions could not be applied in a uniform and untargeted manner, otherwise they would run the risk of failing to provide adequate access to pharmaceutical services, especially in rural areas where the population is scattered and sparse and also, conversely, in areas of very high population density. They must, then, be relaxed, through the application of provisions provided for in the national legislation. The court which referred the case must decide whether the regional authorities are using these provisions in geographic areas with specific demographic characteristics. Finally, the Court decided that the Asturian legislation was proportionate to the aim sought, in that it does not go beyond what is necessary to be able to provide sure and high quality supply of medicines. (F.G./transl.rt)