A bitter pill

Occasionally the European Court of Justice delivers a judgment that takes one by surprise. So it is with two related decisions delivered by the Grand Chamber on 19 May 2009 in Joined Cases C-171/07 and C-172/07 Apotherkammer des Saarlandes and Case C-531/06 Commission v Italy. Both cases had essentially the same subject-matter: the extent to which the right of freedom of establishment affects a member state's power to restrict the owning and operation of pharmacies to natural persons.

The case of Apotherkammer des Saarlandes is unusual, in that authorities in the member state were contending its national law was invalid. German law restricted the operation of pharmacies to natural persons with pharmacy licences, who could own and operate up to four pharmacies. A Dutch company sought and obtained a licence; but the local association of pharmacists contended it was ineligible. The Dutch company and the ministry granting the licence argued that the restriction was a breach of Art.43 EC '“ guaranteeing the right to freedom of establishment. In the ECJ, the European Commission supported that argument.

The second case, Commission v Italy, raised the question more directly. In Italy the operation of private pharmacies is restricted to natural persons, partnerships and cooperative societies whose members are pharmacists and who actually run the pharmacy in question. There were various other restrictions. The commission, dissatisfied with Italy's response to its complaints, brought infringement proceedings, alleging breach of Art.43 and Art.56 EC (free movement of capital).

In both cases, the ECJ rejected the complaints, and held that the national rules were justified by concerns about public health. Of course, health is an important thing. But it is by no means universally the case, at least historically, to see the ECJ laying such stress on its importance. 'The health and life of humans rank foremost among the assets and interests protected by the Treaty,' the court said in both cases.

Nor does one normally expect from the ECJ the sort of eulogy to the professional offered here: 'It is undeniable that an operator having the status of pharmacist pursues, like other persons, the objective of making a profit. However, as a pharmacist by profession, he is presumed to operate the pharmacy not with a purely economic objective, but also from a professional viewpoint. His private interest connected with the making of a profit is thus tempered by his training, by his professional experience and by the responsibility that he owes...'

Rightly or wrongly, the ECJ has generally been more cynical about 'professionals'.

But what about the most important question: could the objectives not be attained by less restrictive measures? Why would it not be sufficient to require that pharmacies be supervised by licensed pharmacists employed by the owner; why was it necessary to insist that they be owned and operated by them? The ECJ took an indulgent line. Member states 'may take the view that there is a risk that legislative rules ... would not be observed in practice', and the commission had not put forward 'anything to show what the specific system would be that would be capable of ensuring '“ with the same effectiveness as the rule excluding non-pharmacists '“ that those legislative rules are observed in practice'.

On purely doctrinal grounds, there is nothing in these cases that breaks new ground; the ECJ is applying familiar rules. But the way they are applied is not as expected. The great stress on the freedom of member states to fix high standards, on the weight to be attached to even small and speculative risks about health, and on the need for the commission to prove that alternative methods would not even risk compromising the achievement of very high standards in practice '“ these are not the usual stuff of such cases.

The most interesting question is: is this a one-off? Is this judgment just the result of the particular traditions and sensitivity of member states about pharmacies? Or does the new-found praise for the public-spirited professional over the purely self-interested commercial organisation reflect a real loss of faith in the ability of commercial organisations in the free market to deliver results consistent with the public interest; and a return to the more corporatist values of an earlier age?