22 October

HEALTHCARE

Right of first refusal of municipal pharmacy employees: potential conflict with Art. 49 of the TFEU on the protection of the freedom of establishment

22/10/2019

On 2 October, the Advocate General at the EU Court of Justice filed his conclusions in Case C-465/18 on the request for a preliminary ruling filed by the Council of State on 18 July 2018, aimed at understanding if the principles of freedom of establishment, non-discrimination, equal treatment, protection of competition, and freedom of movement for workers, pursuant to Articles 45, from 49 to 56 and 106 of the TFEU, Articles 15 and 16 of the Charter, and the canon of proportionality and reasonableness contained therein, preclude a national regulation, namely Art. 12(2) of Law no. 362/1991, which, in the event of transfer of the ownership of a municipal pharmacy, assigns the right of first refusal to the employees of such pharmacy.

In the opinion of the Advocate General, the rules on the freedom of establishment pursuant to Art. 49 of the TFEU precludes national legislation, which recognises the right of first refusal to municipal pharmacy employees in the event of its transfer, as this discipline has the effect of hindering and discouraging pharmacists of other Member States to exercise their right to participate in the tender procedure to purchase a municipal pharmacy located within the Italian Republic.

This rule does not seem to constitute a restriction on the freedom of establishment as justified by general interest, such as the protection of public health, since the aim is to guarantee the continuity of employment of pharmacists of municipal pharmacies in order to safeguard their rights in the event of the transfer of ownership of such pharmacy, which is based on social and occupational considerations rather than those of public health. Lastly, the Advocate General pointed out that this objective cannot be justified for the protection of employees against dismissal in the event of transfer of a municipal pharmacy, against the protection guaranteed by Art. 2112 of the Italian Civil Code.