ORDER OF THE COURT (Eighth Chamber)
30 June 2016 (*)
(References for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Freedom of establishment — Public health — Article 49 TFEU — Pharmacies — Adequate provision of medicinal products to the public — Operating licence — Territorial distribution of pharmacies — Establishment of limits based essentially on a demographic criterion)
In Case C‑634/15,
REQUEST for a preliminary ruling under Article 267 TFEU from the Landesverwaltungsgericht Oberösterreich (Regional Administrative Court, Province of Upper Austria, Austria), made by decision of 24 November 2015, received at the Court on 30 November 2015, in the proceedings
Susanne Sokoll-Seebacher,
Manfred Naderhirn,
intervening parties:
Agnes Hemetsberger,
Mag. Jungwirth und Mag. Fabian OHG and Others,
THE COURT (Eighth Chamber),
composed of D. Šváby, President of the Chamber, J. Malenovský (Rapporteur) and M. Safjan, Judges,
Advocate General: P. Mengozzi,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        This request for a preliminary ruling concerns the interpretation of Article 49 TFEU.
2        The request has been made in proceedings brought by Ms Susanne Sokoll-Seebacher and Mr Manfred Naderhirn concerning, respectively, the opening of a new pharmacy and the extension of the catchment area of an existing pharmacy.
Legal context
3        Paragraph 10 of the Apothekengesetz (Law on Pharmacies), in the version applicable at the material time (‘the ApG’) provides:
‘1.      Authorisation to open a pharmacy shall be granted where:
(1)      a doctor is already permanently established in the municipality where the pharmacy is to be opened and where
(2)      there exists a need for a new pharmacy to be opened.
2.      Such a need does not exist where:
(1)      on the date that the request is submitted, there is already, in the municipality where the proposed pharmacy is to be located, a doctor’s dispensary and fewer than two (full-time) positions for doctors operating under contract to health funds … are occupied by general practitioners, or where
(2)      the distance between the location of the proposed pharmacy and the location of the closest existing public pharmacy is less than 500 metres, or where
(3)      as a result of the establishment of the new pharmacy, the number of people that will continue to be served by one of the existing neighbouring pharmacies will be reduced and fall below 5 500.
3.      A need, within the meaning of point 2(1) above, does not exist where, on the date that the request is submitted, there is, in the municipality where the proposed pharmacy is to be opened,
(1)      a doctor’s dispensary and
(2)      a group practice under contract to health funds …
…
4.      The people to be served, within the meaning of point 2(3) above, are those permanent inhabitants living within a radius of less than four kilometres, by road, from the permanent location of one of the existing neighbouring public pharmacies who, because of local conditions, will continue to be served by that existing pharmacy.
5.      Where the number of permanent inhabitants, as defined in point 4 above, is lower than 5 500, account must be taken, when determining whether a need exists, of the people who are to be served by virtue of the fact that they work, have recourse to services or use means of transport in that area.
6.      The distance referred to in point 2(2) above, may, in exceptional cases, be ignored where the local conditions urgently so require, in the interest of ensuring an adequate supply of medicinal products to the public.
7.      An expert’s report shall be prepared by the Austrian Chamber of Pharmacists to establish whether there is a need for a new pharmacy to be opened. …
…’
4        Paragraph 46(5) of the ApG provides:
‘Where an application for an extension of the catchment area which was determined when the licence to operate a pharmacy was issued in accordance with Paragraph 9(2), or an application for ex post determination of the area, where it was not determined when the licence was issued, in accordance with Article 9(2), the procedure laid down for the issue of licences must be implemented.’
Disputes in the main proceedings and the question referred for a preliminary ruling
5        The disputes in the main proceedings before the Landesverwaltungsgericht Oberösterreich (Regional Administrative Court, Province of Upper Austria, Austria) have already given rise to preliminary rulings, namely the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68) and the order of 15 October 2015 in Naderhirn (C‑581/14, not published, EU:C:2015:707).
6        Ms Sokoll-Seebacher challenged the decision of 29 December 2011 by which the competent administrative authority dismissed her application to open a pharmacy in the municipality of Pinsdorf (Austria) before the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Independent Administrative Tribunal of the Province of Upper Austria).
7        Likewise, Mr Naderhirn unsuccessfully applied to the competent administrative authority to extend the catchment area of his pharmacy, situated in the municipality of Leonding (Austria), an objective which he now pursues before the referring court.
8        The administrative authorities based their decision on Paragraph 10(2)(3) of the ApG.
9        In the case concerning Ms Sokoll-Seebacher, the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Independent Administrative Chamber of the Province of Upper Austria) stayed the proceedings and asked the Court of Justice about the compatibility of a national provision, such as Paragraph 10(2)(3) of the ApG with Article 49 TFEU.
10      Following the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68), the Landes Verwaltungsgericht Oberösterreich (Regional Administrative Court of the Province of Upper Austria), which then had jurisdiction to continue the licensing procedure by virtue of the reform of the Austrian administrative courts, granted Ms Sokoll-Seebacher a licence to open a pharmacy in the municipality of Pinsdorf by judgment of 21 February 2014. Likewise, by judgment of 28 May 2014, that court upheld the application for the extension of the catchment area of Mr Naderhirn’s pharmacy.
11      However, Ms Agnes Hemetsberger, in her capacity as the owner of a pharmacy close to that for which Ms Sokoll-Seebacher had applied for a licence in the case in the main proceedings, and the pharmacists operating pharmacies close to Mr Naderhirn’s pharmacy brought an appeal on a point of law before the Verwaltungsgerichtshof (Administrative Court, Austria) against the judgments of the Landes Verwaltungsgericht Oberösterreich (Regional Administrative Court of the Province of Upper Austria) mentioned above.
12      By judgments of 8 October 2014 and 30 September 2015, the Verwaltungsgerichtshof (Administrative Court) upheld those appeals against the judgments of the Landes Verwaltungsgericht Oberösterreich (Regional Administrative Court of the Province of Upper Austria), on the basis that their content was unlawful.
13      In particular, in the judgment of 30 September 2015, the Verwaltungsgerichtshof (Administrative Court) held that the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68) had to be interpreted as meaning that Paragraph 10(2)(3) of the ApG must be disapplied in order to issue a licence to open a new pharmacy without taking into account a possible reduction in the potential customer base of neighbouring pharmacies below the level of 5 500 persons to be served only if a new pharmacy is necessary to provide the population in certain isolated rural areas with reasonable access to a sales outlet for medicinal products. However, if the issue of the licence applied for is not required solely for those reasons, in light of EU law, Paragraph 10(2)(3) of the ApG should continue to apply.
14      The cases in the main proceedings having been referred back to the Landes Verwaltungsgericht Oberösterreich (Regional Administrative Court of the Province of Upper Austria), that court, reluctant to concur with the interpretation made by the Verwaltungsgerichtshof (Administrative Court) of the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68) has, in the context of the case concerning Mr Naderhirn, made a reference for a preliminary ruling asking, in particular, whether the existence of provisions of national law providing that a national court is unconditionally bound by the interpretation of EU law made by another national court is compatible with Article 267 TFEU and with the principle of the primacy of EU law.
15      By order of 15 October 2015 in Naderhirn (C‑581/14, not published, EU:C:2015:707), the Court answered that question in the negative.
16      Taking the view that the Court had not provided all the necessary substantive elements for the resolution of the disputes in the main proceedings, the Landesverwaltungsgericht Oberösterreich (Regional Administrative Court of the Province of Upper Austria) made the present request for a preliminary ruling and invited the Court to clarify its case-law relating to Article 49 TFEU.
17      In those circumstances, the Landesverwaltungsgericht Oberösterreich (Regional Administrative Court of the Province of Upper Austria) decided to stay proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Having regard to the findings of the Court of Justice in the operative part (and in paragraph 51) of its judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68), according to which Article 49 TFEU precludes legislation of a Member State such as Paragraph 10(2)(3) of the ApG which lays down, as an essential criterion for determining the existence of a need for the opening of a new pharmacy, a strict limit (specifically 5 500) on the number of ‘people who continue to be served’, must Article 49 TFEU, in particular, the requirement that the desired objective be achieved in a consistent manner
(a)      be interpreted as meaning that the fact that a limit has been set which not only has an indicative value, but is also specific (that is it is quantified and cannot therefore be varied by interpretation), renders that legislation as a whole inconsistent and, therefore, contrary to EU law, in so far as the competent national authorities are, in principle, unable to derogate from it in order to take account of local circumstances (especially as the criteria laid down in paragraph 24 of the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68), so as to attain the desired objective in a consistent and systematic manner must in each case be satisfied cumulatively), so that on a national level there is no need to apply that criterion concerning the determination of the existence of a need until the national legislature replaces it with more flexible rules which are consistent with EU law (for example, similar to Paragraph 10(6) of the ApG relating to the limit of 500 metres laid down by Paragraph 10(2)(2) of the ApG), or
(b)      must Article 49 TFEU be interpreted as meaning that the setting of a limit by Paragraph 10(2)(3) of the ApG, which has not only an indicative value but is also specific (that is it is quantified and cannot, therefore, be varied by interpretation), is contrary to EU law only if it applies in a specific situation in which there is in fact a need to open a pharmacy on account of local conditions or other circumstances without which adequate access to medicinal products cannot be provided (see paragraph 45 read together with paragraph 50 of the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68) for certain persons (in particular “incoming users”, new arrivals, etc.), even if, in the future the number of people potentially served by one or more existing pharmacies would in fact fall below the limit of 5 500 persons, so that it is unnecessary to apply that criterion based on the determination of the existence of a need only to those cases, whether in rural, urban or other areas until the national legislature adopts legislation clarifying matters, or
(c)      must Article 49 TFEU be interpreted as meaning that the setting of a limit by Paragraph 10(2)(3) of the ApG, which has not only indicative value but is also specific (that is to say it is quantified and cannot, therefore, be varied by interpretation) is incompatible with EU law only if it applies in a specific situation concerning an isolated rural area even if, in the future, the number of people potentially served by one or more existing pharmacies would in fact fall below the limit of 5 500 persons, so that it is necessary to apply that criterion based on the assessment of the existence of a need only if it has repercussions on the population residing in a rural and/or isolated area, until the national legislature adopts new legislation clarifying matters?’
Consideration of the question referred for a preliminary ruling
18      By its question, the referring court asks essentially whether the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68) must be read as meaning that the criterion relating to a strict limit on the number of ‘persons who continue to be served’, laid down by the national legislation concerned, is not to be applied, in order to determine whether there is a need to open a new pharmacy: (i) only in a specific situation concerning a rural and/or isolated area; (ii) in a specific situation in which, having regard to the local circumstances, there is a need to open a pharmacy, regardless of whether the area concerned is rural or urban, or, (iii) whether, it is not to be applied in general in each specific situation to be subject to a determination.
19      As a preliminary point, it should be noted at the outset that the authority of a preliminary ruling does not preclude the national court or tribunal to which it is addressed from taking the view that it is necessary to make a further reference to the Court before giving judgment in the main proceedings. Such a procedure may be justified when the national court or tribunal encounters difficulties in understanding or applying the judgment, when it refers a fresh question of law to the Court, or again when it submits new considerations which might lead the Court to give a different answer to a question submitted earlier (order of 5 March 1986 in Wünsche, 69/85, EU:C:1986:104, paragraph 15; judgments of 11 June 1987 in X, 14/86, EU:C:1987:275, paragraph 12, and 6 March 2003 in Kaba, C‑466/00, EU:C:2003:127, paragraph 39).
20      That is the situation here, as the referring court wishes to know if it follows from the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68) that the application of the criterion fixing a strict limit on the number of ‘persons who continue to be served’ must be disregarded in all cases or only in cases relating to certain specific areas or situations.
21      Pursuant to Article 99 of its Rules of Procedure, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.
22      That is precisely the case here, given that the answer to the question referred may be clearly deduced from the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68).
23      In that connection, it must be recalled that the national legislation at issue in the main proceedings makes the issue of a licence to open a new pharmacy subject to the existence of a ‘need’ which is presumed to exist unless at least one of the various specific circumstances set out by that legislation preclude it (judgment of 13 February 2014 in Sokoll-Seebacher, C‑367/12, EU:C:2014:68).
24      Among those circumstances is the number of ‘persons who continue to be served’ by one of the existing neighbouring pharmacies, namely the number of permanent inhabitants living within a radius of less than four kilometres, by road, from that location (judgment of 13 February 2014 in Sokoll-Seebacher, C‑367/12, EU:C:2014:68).
25       Thus, according to that legislation, the existence of a need justifying the opening of a new pharmacy is excluded where, as a result of a new pharmacy being opened, the number of ‘persons who continue to be served’ would be reduced and would fall below 5 500 (see, to that effect, judgment of 13 February 2014 in Sokoll-Seebacher, C‑367/12, EU:C:2014:68, paragraphs 29 and 43).
26      In that case, the legislation at issue provides for an adjustment measure according to which, where the number of permanent inhabitants is less than 5 500, in order to determine the existence of a need, account must be taken of people who would be served due to that fact that they work, that they have recourse to services, or that they use means of transport in that pharmacy’s area of supply (judgment of 13 February 2014 in Sokoll-Seebacher, C‑367/12, EU:C:2014:68, paragraph 43).
27      In order to give the referring court useful guidance, it must be observed that, according to settled case-law, national legislation is appropriate for securing attainment of the objective relied upon only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner (see, to that effect, judgments of 10 March 2009 in Hartlauer, C‑169/07, EU:C:2009:141, paragraph 55; 19 May 2009 in Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 42; and 1 June 2010 in Blanco Pérez and Chao Gómez, C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 94).
28      In that connection, in the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68, paragraphs 45 and 46), the Court held, first, that, under the national legislation at issue in the main proceedings, for certain people, in particular those living in rural areas, and especially people with reduced mobility, either temporarily or in the long term, such as old, disabled or sick people, access to medicinal products may prove to be inadequate.
29      There are people who live beyond the radius of 4 kilometres, by road, of the location of the nearest pharmacy and who are therefore not taken into account, as permanent inhabitants, either within the area of supply or in any other existing area. It is true that those people may be considered to be ‘incoming users’, in one or more areas. However, their access to pharmaceutical services is thus dependent, in any event, on circumstances which are not such as to ensure that they have, in principle, permanent and continuous access to such services, since that access is linked only to work undertaken or to the use of means of transport in a given area (see, to that effect, judgment of 13 February 2014 in Sokoll-Seebacher, C‑367/12, EU:C:2014:68, paragraph 45).
30      Second, the Court noted that, in rural, isolated and infrequently ‘visited’ regions the number of ‘people who continue to be served’ may, on account of the low demographic density, be well below 5 500, so that the need justifying the opening of a new pharmacy could never be regarded as sufficient (see, to that effect, judgment of 13 February 2014 in Sokoll-Seebacher, C‑367/12, EU:C:2014:68, paragraphs 47 to 49).
31      It follows that, in spite of the adjustment measure provided for in the national legislation, by applying the criterion relating to the number of ‘people who continue to be served’, there is a danger that equal and adequate access may not be guaranteed for certain people living in certain areas with local characteristics, such as rural and isolated regions situated outside the existing pharmacies’ areas of supply, in particular for people with reduced mobility (see, to that effect, judgment of 13 February 2014 in Sokoll-Seebacher, C‑367/12, EU:C:2014:68, paragraph 50).
32      However, by referring to rural or isolated regions and to persons with reduced mobility, the Court did not intend to limit the scope of its assessment of the consistency of the national legislation at issue in the main proceedings to that type of region and that category of persons.
33      By reason of the strict limit on the number of ‘persons who continue to be served’ it lays down, the national legislation at issue in the main proceedings does not enable the competent authority to duly take into account the particularities of each situation examined or to guarantee the attainment in a consistent and systematic manner of the main objective intended by that legislation, which, as the Court recalled in paragraph 25 of its judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68), is to ensure a supply of medicinal products to the public which is reliable and of good quality.
34      In that sense, the Court held that the legislation of a Member State, such as that at issue in the main proceedings, which lays down, as an essential criterion in order to determine the existence of a need for the opening of a new pharmacy, a strict limit on the number of ‘persons who continue to be served’ is contrary to Article 49 TFEU, in particular, to the requirement of consistency in the pursuit of the intended objective, where the competent authorities cannot depart from that limit to take account of particular local conditions, that is to say, ultimately the special feature of the various specific situations, each of which having to be subject to examination (see, to that effect, judgment of 13 February 2014 in Sokoll-Seebacher, C‑367/12, EU:C:2014:68, paragraph 51).
35      It follows that the inconsistency deriving from the application of a criterion which concerns a strict limit on the number of ‘persons who continue to be served’ is systematic. Therefore, the dangers to which such an application gives rise are liable to affect the assessment of any specific/unusual situation.
36      In the light of all of the foregoing, the answer to the question referred is that the judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68) must be read as meaning that the criterion relating to a strict limit on the number of ‘persons who continue to be served’, laid down by the national legislation at issue in the main proceedings, is not to be applied, for the purposes of determining the existence of a need to open a new pharmacy, in a general manner, in every specific situation which will be the subject of an assessment.
Costs
37      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby orders:
The judgment of 13 February 2014 in Sokoll-Seebacher (C‑367/12, EU:C:2014:68) must be read as meaning that the criterion relating to a strict limit on the number of ‘persons who continue to be served’, laid down by the national legislation at issue in the main proceedings, is not to be applied, for the purposes of determining the existence of a need to open a new pharmacy, in a general manner, in every specific situation which will be the subject of an assessment.
[Signatures]
* Language of the case: German.