Case C‑367/12

Susanne Sokoll-Seebacher

(Request for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich)

‛Freedom of establishment — Public health — Article 49 TFEU — Pharmacies — Adequate supply of medicinal products to the public — Operating authorisation — Territorial distribution of pharmacies — Establishment of limits essentially based on a demographic criterion — Minimum distance between pharmacies’

Summary — Judgment of the Court (Fourth Chamber), 13 February 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Question raised regarding a dispute within a single Member State — Jurisdiction in the light of the possible applicability of the rule of EU law to the dispute by reason of a prohibition or discrimination laid down by national law

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Indication of the reasons justifying the need for a reply to the questions referred to the Court

   (Art. 267 TFEU)

3. 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 rigid limit on the ‘people remaining to be served’ — Not possible to depart from that limit to take account of particular local geographical conditions — Not permissible

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see paras 10-12)

2.  See the text of the decision.

   (see paras 15-17)

3.  Article 49 TFEU, in particular the requirement that the desired objective be achieved in a consistent manner, must be interpreted as precluding legislation which lays down, as an essential criterion for determining whether a need for the establishment of a new pharmacy exists, a rigid limit on the ‘people remaining to be served’, where the competent authorities cannot depart from that limit to take account of particular local geographical conditions.

   It is true that national legislation setting out certain criteria to which the issue of licences to open new pharmacies is subject is generally appropriate for attaining the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality.

   However, such 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.

   The uniform application, over the entire territory concerned, of conditions relating to the demographic density and the minimum distance between pharmacies, laid down by national legislation governing the opening of a new pharmacy, might well be unsuccessful, in certain circumstances, in ensuring adequate access to pharmaceutical services in areas which have certain special demographic features. More specifically, as regards the conditions relating to demographic density, the uniform application of those conditions, without any possibility of derogation, would lead, in certain rural areas where the population is generally dispersed and less numerous, to certain inhabitants concerned finding themselves beyond reasonable distance of a pharmacy and thus possibly being denied adequate access to pharmaceutical services. Accordingly, the application of the criterion relating to the number of ‘people remaining to be served’, gives rise to a danger that equal and adequate access may not be guaranteed for certain people living in rural and isolated regions.

   (see paras 25, 39, 41, 42, 50, 51, operative part)

Case C‑367/12

Susanne Sokoll-Seebacher

(Request for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich)

‛Freedom of establishment — Public health — Article 49 TFEU — Pharmacies — Adequate supply of medicinal products to the public — Operating authorisation — Territorial distribution of pharmacies — Establishment of limits essentially based on a demographic criterion — Minimum distance between pharmacies’

Summary — Judgment of the Court (Fourth Chamber), 13 February 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Question raised regarding a dispute within a single Member State — Jurisdiction in the light of the possible applicability of the rule of EU law to the dispute by reason of a prohibition or discrimination laid down by national law

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Indication of the reasons justifying the need for a reply to the questions referred to the Court

   (Art. 267 TFEU)

3. 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 rigid limit on the ‘people remaining to be served’ — Not possible to depart from that limit to take account of particular local geographical conditions — Not permissible

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see paras 10-12)

2.  See the text of the decision.

   (see paras 15-17)

3.  Article 49 TFEU, in particular the requirement that the desired objective be achieved in a consistent manner, must be interpreted as precluding legislation which lays down, as an essential criterion for determining whether a need for the establishment of a new pharmacy exists, a rigid limit on the ‘people remaining to be served’, where the competent authorities cannot depart from that limit to take account of particular local geographical conditions.

   It is true that national legislation setting out certain criteria to which the issue of licences to open new pharmacies is subject is generally appropriate for attaining the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality.

   However, such 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.

   The uniform application, over the entire territory concerned, of conditions relating to the demographic density and the minimum distance between pharmacies, laid down by national legislation governing the opening of a new pharmacy, might well be unsuccessful, in certain circumstances, in ensuring adequate access to pharmaceutical services in areas which have certain special demographic features. More specifically, as regards the conditions relating to demographic density, the uniform application of those conditions, without any possibility of derogation, would lead, in certain rural areas where the population is generally dispersed and less numerous, to certain inhabitants concerned finding themselves beyond reasonable distance of a pharmacy and thus possibly being denied adequate access to pharmaceutical services. Accordingly, the application of the criterion relating to the number of ‘people remaining to be served’, gives rise to a danger that equal and adequate access may not be guaranteed for certain people living in rural and isolated regions.

   (see paras 25, 39, 41, 42, 50, 51, operative part)