Case C‑84/11, Marja-Liisa Susisalo

Article 49 TFEU not precluding licensing scheme for operation of branch pharmacies which is different for University of Helsinki Pharmacy than for private pharmacies

>> This case concerned the question whether Art. 49 TFEU must be interpreted as meaning that it precluded a national law which provided a licensing scheme for the operation of branch pharmacies which was different for the University of Helsinki Pharmacy (‘UHP’) than for private pharmacies.

The questions did not seek to ascertain whether Art. 49 TFEU precluded a national law concerning the operation of private branch pharmacies, but whether that provision precluded that law from laying down a specific licensing scheme for the operation of branch pharmacies applicable to UHP which was more favourable than that which applied to private pharmacies.

>> restriction on the freedom of establishment

The Court first of all reiterated that Article 49 TFEU required the abolition of restrictions on the freedom of establishment. According to their wording, the Treaty provisions on freedom of establishment were aimed at ensuring that foreign nationals were treated in the host Member State in the same way as nationals of that State. Moreover, Art. 49 TFEU precluded any national measure which, even if applicable without discrimination on grounds of nationality, was liable to hinder or render less attractive the exercise by Union nationals of the freedom of establishment that was guaranteed by the Treaty (see, to that effect, Case C371/10 National Grid Indus [2011]).

The Court held that the Finnish law concerned, without distinction, any national, Finnish or of another Member State, who wished, as a private pharmacist, to establish a branch pharmacy in Finland. Therefore, it was not discriminatory within the meaning of Art. 49 TFEU.

However, under that law, private pharmacies might open only three branches in Finland, the operating licence for which was, furthermore, subject to the existence, in the geographical area concerned, of a sparse population which did not justified the existence of an independent pharmacy, whereas UHP had the right to have 16 branch pharmacies regardless of the number of inhabitants in the area concerned.

The Court held that the preferential system granted to UHP, in terms of the number of branch pharmacies allowed and the conditions for the operating licences of those branches, was likely to deprive a private pharmacist of the right to set up a branch pharmacy in one of the 16 geographical areas in which the UHP had established a branch, which was likely to render less attractive the pursuit, by private pharmacists from other Member States, of their activities in Finland through a permanent establishment. The fact that the restrictive effects of that preferential system affected home country nationals and those from other Member States alike was not such as to exclude that preferential system from the scope of Art. 49 TFEU (see, to that effect, Case C353/89 Commission v Netherlands [1991]).

Consequently, national legislation, such as that at issue in the cases before the referring court, constituted a restriction on the freedom of establishment within the meaning of Art. 49 TFEU.

>> whether justification by overriding reasons relating to general interest

It is settled case-law that restrictions on freedom of establishment which are applicable without discrimination on grounds of nationality may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining that objective (See e.g. Joined Cases C570/07 and C571/07 Blanco Pérez and Chao Gómez [2010]).

It was also apparent from Art. 52(1) TFEU that the protection of public health could justifiy restrictions on the fundamental freedoms guaranteed by the Treaty, such as the freedom of establishment. More specifically, restrictions on the freedom of establishment might be justified by the objective of ensuring that the provision of medicinal products to the public was reliable and of good quality. The Court held that the importance of that objective was confirmed by Art. 168(1) TFEU and Art. 35 of the Charter of Fundamental Rights of the European Union, under which, inter alia, a high level of protection for human health was to be ensured in the definition and implementation of all policies and activities of the European Union

UHP sold medicines to the public just like private pharmacies. However, the referring court, the Finnish Government and the UHP had submitted that the UHP was, pursuant to the Law on medicines, required to carry out specific tasked relating to the teaching of pharmacy students and must undertake research relating to pharmaceutical services and special services relating to the manufacture of certain rare medicinal preparations, whereas such a legal obligation was not imposed on private pharmacies.

The Court argued that the UHP’s tasked concerning training and pharmaceutical research and the manufacture of rare magistral preparations fell within the scope of the protection of public health.

The Court thus concluded that in the light of the objective pursued by the Law on medicines to ensure a certain level of protection of public health by means of imposing legal obligations, the preferential system reserved to the UHP by the national law at issue in the main proceedings as regards the operating conditions for branch pharmacies in Finland concerned were necessary, in so far as – which was for the referring court to verify – the branches of the UHP actually participated in the accomplishment of the specific tasks relating to the teaching of pharmacy students, research on pharmaceutical services and the manufacture of rare pharmaceutical preparations which had been allocated to UHP.