FREEDOM OF ESTABLISHMENT: THE EC RULED THAT SOME CRITERIA FOR THE IMPLEMENTATION OF THE ASTURIAN REGULATION ON THE AUTHORIZATION OF PHARMACIES ARE ILLEGAL (JUDGMENT “BLANCO PÉREZ AND CHAO GÓMEZ”)

Abstract

The Court (Grand Chamber) ruled that Article 49 TFEU must be interpreted as not precluding, in principle, national legislation, such as that at issue in the cases before the referring court (Tribunal Superior de Justicia de Asturias), which imposes some restrictions on the issue of licences for the opening of new pharmacies (i.e. establishment of limits based on population density or minimum distance between pharmacies). 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, that being a matter for the national court to ascertain. The answer to the second part of the questions referred by the Tribunal Superior de Justicia de Asturias was that Article 49 TFEU, read in conjunction with Article 1(1) and (2) of Directive 85/432/EC and Article 45(2)(e) and (g) of Directive 2005/36/EC, must be interpreted as precluding discriminatory criteria, such as those set out in points 6 and 7(c) of the Annex to Decree 72/2001 (Asturias), under which licensees for new pharmacies are to be selected.