20 December

HEALTHCARE

The unconditional right of first refusal for employed pharmacists in the transfer of a municipal pharmacy conflicts with the freedom of establishment provided by Art. 49 of the TFEU

20/12/2019

With its sentence of 19 December 2019 (case C-465/18), the EU Court of Justice ruled on the compatibility of Art. 12(2) of Law 362/1991, which grants employees the right of first refusal in the event of a transfer of ownership of a municipal pharmacy. The issue was raised by the Council of State during a dispute on the transfer of a municipal pharmacy; administrative courts found this rule to be in conflict with the principles of free competition and equal treatment contained in EU law. The Court of Justice found that the recognition of the unconditional right of first refusal granted to employees of a municipal pharmacy subject to transfer is likely to dissuade pharmacists from other Member States from participating in this procedure, constituting a restriction to the freedom of establishment provided by Art. 49 of the TFEU. This restriction was not deemed justified, as the rights of employees are guaranteed by Italian law by that provided for in Art. 2112 of the Civil Code, and employees of municipal pharmacies have not been proven to have greater professional experience, quality of service provided, or functions performed as regards the objective of protecting health. In recognising the incompatibility of the national rule with the Art. 49 of the TFEU, EU courts concluded by stating that the objective of enhancing professional experience pursuant to Art. 12 above can also be achieved through less restrictive measures, with respect to the recognition of an unconditional right of first refusal, such as the assignment of scores, as part of the tender procedure, for participants who provide proof of experience in pharmacy management.