Order of the Court (Seventh Chamber) of 6 October 2010 – Sáez Sánchez and Rueda Vargas v Junta de Andalucia and Others

(Case C‑563/08)

First subparagraph of Article 104(3) of the Rules of Procedure – Article 49 TFEU – Freedom of establishment – Public health – Pharmacies – Proximity – Provision of medicinal products to the public – Operating licence – Territorial distribution of pharmacies – Establishment of limits based on population density – Minimum distance between pharmacies

Freedom of establishment – Restrictions – National legislation requiring an administrative licence to be obtained before new pharmacies may be opened in a particular area (Art. 49 TFEU) (see paras. 14-34, operative part.)

Re:

Operative part:

Article 49 TFEU must be interpreted as not precluding, in principle, national legislation, such as that at issue in the main proceedings, that imposes restrictions on the issue of licences for the opening of new pharmacies, by providing that:

–        in each pharmaceutical area, a single pharmacy may be opened, as a general rule, per unit of 2 800 inhabitants;

–        a supplementary pharmacy may not be opened until that threshold has been crossed, that pharmacy being established for the fraction above 2 000 inhabitants; and

–        each pharmacy must be a minimum distance away from existing pharmacies, that distance being, as a general rule, 250 metres.

Nevertheless, Article 49 TFEU precludes such national legislation in so far as the basic ‘2 800 inhabitants’ and ‘250 metres’ rules prevent, in any geographical area which has special demographic features, the establishment of a sufficient number of pharmacies to ensure adequate pharmaceutical services, which is a matter for the national court to ascertain.