Case C‑634/15

Susanne Sokoll-Seebacher

and

Manfred Naderhirn

(Request for a preliminary ruling from the

Landesverwaltungsgericht Oberösterreich)

‛Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Freedom of establishment — Public health — Article 49 TFEU — Pharmacies — Adequate provision of medicinal products to the public — Operating licence — Territorial distribution of pharmacies — Establishment of limits based essentially on a demographic criterion’

Summary — Order of the Court (Eighth Chamber), 30 June 2016

1. Questions referred for a preliminary ruling — Judgment of the Court of Justice — Res judicata — Possibility for the lower court to make a further reference to the Court of Justice — Scope

   (Art. 267 TFEU)

2. Freedom of establishment — Restrictions — National legislation requiring prior authorisation for the opening of new pharmacies in a given region — Conditions for grant linked to demographic density and to the minimum distance between pharmacies — Essential criterion consisting of a strict limit on the number of ‘persons who continue to be served’ — No possibility to derogate from that limit in order to take account of local conditions — Unlawful — Criterion not to be applied in a general manner to each specific situation which is the subject of an assessment

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see para. 19)

2.  The judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12) must be read as meaning that the criterion relating to a strict limit on the number of ‘persons who continue to be served’, laid down by the national legislation at issue in the main proceedings, is not to be applied, for the purposes of determining the existence of a need to open a new pharmacy, in a general manner, in every specific situation which will be the subject of an assessment.

   National legislation is appropriate for securing attainment of the objective sought only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner.

   In spite of the adjustment measure provided for in the national legislation, by applying the criterion relating to the number of ‘people who continue to be served’, there is a danger that equal and adequate access may not be guaranteed for certain people living in certain areas with local characteristics, such as rural and isolated regions situated outside the existing pharmacies’ areas of supply, in particular for people with reduced mobility.

   However, by referring to rural or isolated regions and to persons with reduced mobility, the Court did not intend to limit the scope of its assessment of the consistency of the national legislation at issue in the main proceedings to that type of region and that category of persons.

   By reason of the strict limit on the number of ‘persons who continue to be served’ it lays down, the national legislation does not enable the competent authority to duly take into account the particularities of each situation examined or to guarantee the attainment in a consistent and systematic manner of the main objective intended by that legislation, which is to ensure a supply of medicinal products to the public which is reliable and of good quality.

   In that sense, the Court held that the legislation of a Member State, which lays down, as an essential criterion in order to determine the existence of a need for the opening of a new pharmacy, a strict limit on the number of ‘persons who continue to be served’ is contrary to Article 49 TFEU, in particular, to the requirement of consistency in the pursuit of the intended objective, where the competent authorities cannot depart from that limit to take account of particular local conditions, that is to say, ultimately the special feature of the various specific situations, each of which having to be subject to examination.

   It follows that the inconsistency deriving from the application of a criterion which concerns a strict limit on the number of ‘persons who continue to be served’ is systematic. Therefore, the dangers to which such an application gives rise are liable to affect the assessment of any specific situation.

   (see paras 27, 31-36, operative part)