Oversight of National Pharmacies Market Regulations Exercised by the Court of Justice of the European Union

Abstract

The experiences of many EU Member States have demonstrated that the proper functioning of pharmacies is impossible in conditions of total liberalization of regulations governing their establishment. For this reason, in many Member States existing anti-concentration regulations related to the pharmacy market are being continually expanded. The aim of the present paper is to demonstrate, based on conclusions from judgements and rulings issued by the Court of Justice of the European Union, that anti-concentration regulations concerning the pharmacies market are designed to protect effective competition by being functional instruments for achieving the ultimate goals such as: lowered prices of pharmaceuticals and medical products; enhanced availability and diversity of such products in the form of alternatives and substitutes; forcing greater effort to care for the good of consumers in pharmacies, and encouraging activities to boost quality and innovation; reducing the market strength of large enterprises operating in the framework of consortiums (including international capital groups), which frequently apply exclusionary policies detrimental not only to the interests of smaller enterprises, but also of consumers of pharmacies. The analyses will also demonstrate that the introduction of anti-concentration regulations is compatible with the Treaty on the Functioning of the European Union in respect of freedom of enterprise and provision of services. Indeed, the above-mentioned limitations can infringe the right to free trans-border commercial activity and provision of trans-border services contained in Art. 49 and Art. 56 TFEU, but at the same time they are enacted for realization of the so-called imperative requirements in the general interest, for protection of human health and life, and for the safety of patients; additionally, they must meet the test of proportionality in respect to those values.