Case C-159/12, Venturini – excluding some pharma products from para-pharmacies [judgment 2013, ECLI:EU:C:2013:791]
Can a pharmacist invoke the EU Professional Qualifications Directive 2005/36 and the EU Services Directive 2006/123 to cure an Italian rule that restricts the sale of pharma goods to old-fashioned pharmacies?
Facts
The Italian State restricts the numbers of pharmacists, and controls the distribution of pharmacies throughout the territory by using geographic zoning plans. The regulation of pharmacists and pharmacies has been increasingly characterised by a push towards liberalisation. In 2006 a new law was introduced that allowed people to run para-pharmacies. Para-pharmacies are permitted to exist alongside pharmacies and the policy aim behind the new law was to bring about competition in the distribution and sale of medicines to end-users.
The claimant, Alessandra Venturini, is a qualified and registered pharmacist in Milan. She does not own a pharmacy but does run a para-pharmacy. She applied to sell a specific type of prescription medicine. The type is peculiar in so far as the cost of the prescription medicine is not refundable under the Italian health care system. (In England, the equivalent are known as ‘private prescriptions’.) However, her application was turned down on the basis that Italian law only allowed that type of medicine to be sold in a pharmacy and not in a para-pharmacy.
Question Referred
The District Administrative Law Court of Lombardia did not know how to apply the provisions of the EU law. According to the Curia website, it has asked the following Question:
Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy on the ‘pianta organica‘ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca‘ – that is to say, pharmaceutical products the cost of which is borne not by the [national health service] but wholly by the citizen – and which accordingly also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical product, as well as a quota in relation to the number of commercial outlets which may be established in the national territory?
Outcome. By judgment of 5 December 2013 (ECLI:EU:C:2013:791) the Court ruled, in the words of the operative part: “Article 49 TFEU must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which does not allow a pharmacist, who is qualified and registered with the professional body but does not own a pharmacy in the grid, also to offer for retail sale, in the para-pharmacy owned by that pharmacist, prescription-only medicinal products the cost of which is borne not by the national health service but wholly by the …” The full text is available on EUR-Lex and CURIA.
Comment
Venturini is one of three Italian references involving national laws that regulate the services supplied by people, and whether those laws are compatible with the EU’s ‘market’ laws regulating cartels and the freedom to provide services.
A second case, Consiglio Nazionale dei Geologi is about a professional body’s guidelines for determining the pay of geologists and whether those rules infringe cartel law. And a third case, Airport Shuttle Express, concerns whether EU law prohibits restrictions on where a service can be performed.
Will the CJEU’s judgments come to erode the professions? Will they change the current relationships between the private power of professions and the public power of the state? And would creating more competition and facilitating the rise of alternative business structures result in the delivery of equivalent services to a consumer for a lower price?
UPDATE
This reference from the District Administrative Law Court of Lombardia is mentioned in a later reference to the CJEU from an Italian court in Catania. It too concerns the regulation of pharmacies and para-pharmacies. See further, Case C-497/12, Gullotta – excluding some medicines from Italian para-pharmacies.
In so far as the numbers of pharmacies in a given district are concerned, this issue has been raised in Case C-367/12, Corinna Prinz-Stremitzer.