(June 3, 2009) On May 12, 2009, the European Court of Justice (ECJ) issued a ruling on two cases dealing with the question of whether Italian and German legislation stipulating that only pharmacists have the right to own and operate a pharmacy violates European Community law.
The ECJ held that national legislation that limits the ownership of pharmacies to pharmacists only or that excludes the possibility of non-pharmacists acquiring stakes in companies that operate pharmacies violates Community law on the grounds that it restricts the basic freedom of establishment and the free movement of capital. However, the ECJ held that such a restriction can be justified in the case of medicinal products. The Court drew a distinction between medicinal products, whose therapeutic qualities and safe consumption are a matter of public health, and other goods. It also stated that pharmacists open pharmacies for financial reasons, but at the same time they are bound by professional responsibility and ethics to provide a high level of protection of public health. Non-pharmacists do not share the expertise, experience, and responsibility of pharmacists, the justices held.
The ECJ also stated that a Member State of the European Union has the discretion to limit ownership and operation of a pharmacy only to a pharmacist; to do otherwise, might pose a risk to public health, especially to the reliability, safety, and quality of the supply of medicinal products to the public. Consequently, the Court concluded that “the freedom of establishment and the free movement of capital do not preclude national legislation which prevents persons not having the status of a pharmacist from owning and operating pharmacies.” (Press Release No. 44/09, European Court of Justice, Ownership and Operation of Pharmacies Can Be Restricted to Pharmacists Alone (May 19, 2009), available at http://europa.eu/rapid/pressReleasesAction.do?reference=CJE/09/44&fo
rmat=HTML&aged=0&language=EN&guiLanguage=en; see also Law Library of Congress, Directorate of Legal Research, LL File No. 2008-00898, PRESCRIPTION AUTHORITY OF PHARMACISTS: AUSTRIA, ENGLAND, FRANCE, GERMANY, PORTUGAL, AND SPAIN, Report for Congress (Apr. 2008).)