Greece, Council of State, 7 March 2017 Α311/2018

Identification of the case

• Health care (art. 35 CFREU)

• Ministerial Decision Φ.700/47/81659Σ.266/23.4.2012
• Ministerial Decision Φ.000/23/798393/Σ.2813/7.6.2012
• Art. 7 of Act no.3601/1928
• Art. 6 of Legislative Decree no.107/1969 modified by Art. 17 of Legislative Decree no. 2743/1999, Art. 8 of Legislative Decree 3257/2004 and Art.115 (1) of Legislative Decree no.3978/2011
• Art. 5(1) and (5), 21(3), 25(1), 106(1) and (2) of the Greek Constitution

• Art. 102, 106, 168, 169 of the Treaty of the Functioning of the European Union that replaced Art. 82, 86, 152, 153 of the Treaty Establishing the European Community

Summary of the case

On 25th of July 2012, the Athens Pharmaceutical Association (petitioner) lodged a petition before the Council of State for the annulment of two Ministerial Decisions, adopted in the context of Article 6 of Legislative Decree no.107/1969, which regulated the establishment and the operation of military pharmacies. According to their regulatory framework, military pharmacies sell pharmaceutical products in reduced prices to a number of beneficiaries, which include members of the Armed Forces, employees of the Ministry of Defense as well as the family of the primary beneficiaries and are exempted from the regulations that concern private pharmacies such as territorial restrictions and rules of inspections. The petitioner complains that these Ministerial Decisions are discriminatory and violate the principle of equality and proportionality. It also complains that they constitute a disproportionate restriction of the economic and professional liberty of the individual pharmacists and a differential treatment of beneficiaries over other entities. It adds that they constitute a violation of the right to health and of the protection of the consumers as they allow non-pharmacists to work there. As a last complaint, it alleges that these give a dominant position to the military pharmacies which results in affecting the trade between the EU Member States.

Annulment of the Φ.700/47/81659Σ.266/23.4.2012 Ministerial Decision and of the Φ.000/23/798393/Σ.2813/7.6.2012 Ministerial Decision

First, the Council of State held that the establishment of military pharmacies, the operation and the sale of pharmaceutical products in reduced prices for certain beneficiaries, regulated by Article 6 of Legislative Decree no.107/1969, does not restrict irreparably the economic and professional liberty of individual pharmacies, nor does it violate the principle of proportionality due to the limited number of the beneficiaries and the specific purpose of the operation of military pharmacies. Moreover, it does not introduce any additional requirements for individual pharmacists necessary to exercise their profession.

Then, the Council of State held that the regulatory framework for military pharmacies does not violate the principle of equality and does not discriminate against individual pharmacies as a different set of rules apply to the former type of pharmacy.

Next, it rejected the complaint of differential treatment of the beneficiaries over other entities as it did not fulfil the rules of admissibility. The Council of State subsequently examined whether Article 6 of Legislative Decree no.107/1969, which permits the operation of a military pharmacy by a non-licensed pharmacist, violated constitutional rights as well as Article 35 of the Charter of Fundamental Rights of the European Union, enshrining the social right to health, and Articles 168 and 169 of the Treaty on the Functioning of the European Union, which aim at the consumers’ protection, as operation of a pharmacy by a non-pharmacist might pose a risk to public health. However, it decided that according to the second Ministerial Decree contested in the context of Article 6 (7) of Decree 107/1969, military pharmacies are in any case supervised by a military official who is a licensed pharmacist and thus these claims were rejected.

The Council of State also rejected the claims that the operation of military pharmacies violated Articles 102 and 106 of the Treaty on the Functioning of the European Union, as the petitioner did not specify the way military pharmacies enjoy a dominant position in the market, which they abuse affecting the trade between EU Member States.

In conclusion, the Council of State rejected the petition on all grounds.

Role of the Charter and role of the general principles on enforcement

Article 35 CFREU (right to health) was invoked by the petitioner. According to the petitioner the contested Ministerial Decisions violate Article 35 and thus, along with other reasons, they need to be annulled by the Council of State.

• Proportionality

The principle of proportionality as enshrined in Article 25(1) of the Greek Constitution was invoked by the petitioner to demonstrate why the contested Ministerial Decisions constitute a disproportionate restriction of the economic and professional liberty of individual pharmacists. According to the petitioner, the regulation framework in the context of these Ministerial Decisions did not follow the principle of proportionality. Nonetheless, the Council of State found that the principle was not violated.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

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Conform interpretation with EU law as interpreted by the CJEU.

A horizontal dialogue was used by the Council of State with reference to other decisions adopted by the same national Court. This dialogue aimed to clarify various terms and to support its reasoning. A vertical dialogue was used by the Council of State with reference to other cases of the CJEU. The purpose of this dialogue was to support its reasoning on whether military pharmacies enjoyed a dominant position in the market, which violated the European Union Law and more specifically Article 106 of the Treaty of the Functioning of the European Union.

Taking into consideration the way in which decisions of Greek courts are usually formed and the fact there is not a principle of precedent, the horizontal as well as the vertical dialogue will not have any outcome other than to simply support the reasoning of the decision of this case.