16 February


The Council of State rules on the applicative scope of the judgement of the Court of Justice, which sanctioned the incompatibility of Italian legislation on the right of first refusal of municipal pharmacy employees with Community law


With sentence no. 1295 of 15 February 2021, the Council of State ruled on the legitimacy of the assignment of a municipal pharmacy to its employees, by virtue of the exercise of the right of first refusal provided for by Art. 12 of Law no. 362/1991, to municipal employees, following the ruling of the Court of Justice of 19 December 2019, C-465/18, which sanctioned the incompatibility of this provision with Community law due to its conflict with Community principles on competition.   In particular, the European Court held that the EU Treaty must be interpreted in the sense that it precludes a national measure that grants an "unconditional" right of first refusal, such as that contemplated by the aforementioned Art. 12 of Law no. 362/1991, while having also stated that the "objective of capitalising on the professional experience gained may be attained through less restrictive measures such as the award of additional points under the tendering procedure to tenderers who provide proof of experience in managing a pharmacy". In this context, the supreme administrative court affirmed that "the interpretative judgement of the Court of Justice issued following a preliminary ruling is comparable to a regulatory contingency, which, as it affects a proceeding still in progress and an interest not covered by the judgement, is not suitable to cause a conflict, but a chronological succession of rules governing the same legal situation". It thus retained that the Community sentence was directly applicable to the case in question, and ordered the annulment of the awarding of the pharmacy to municipal pharmacist employees. Nevertheless, the Council of State did not retain the decision of the judges of first instance to be legitimate: they ordered the direct assignment of the pharmacy to the applicant, in the light of the interpretation of Art. 12 of Law no. 362/1991 that was made by the Court of Justice, in the sense "that it legitimises the provision of conditional forms of the right of first refusal, which can well be left to the discretion of the administration". For this reason, the judges of second instance held that the Municipality is required to "repeat the tender procedure, with the provision of a right of first refusal compatible with Art. 49 of the Treaty", taking into account that "the attribution of a points system in the tender as regards municipal pharmacy employees, to which the same sentence of the Court of Justice expressly gives "merit" as a proportionate means of "enhancement" of the skills acquired, could represent the suitable means, in the reconciliation of interests, to satisfy the public interest in health-related manners".