WRITTEN QUESTION E-2961/02

by Giovanni Pittella (PSE) to the Commission

(22 October 2002)

Subject: Italian pharmacy system

The structure of the pharmacy sector in Italy has certain notable features:

- only pharmacists are authorised to sell pharmaceuticals (of any kind) to the public;

- pharmacy numbers are restricted on the basis of the number of inhabitants and the distance between pharmacies in a given locality;

- access to ownership of pharmacies is restricted. More particularly, as regards the transfer of pharmacies by inheritance, Italian law is conducive to pharmacies being kept within a family in that it allows descendants in the direct line up to the second degree to retain possession of the pharmacy until the age of thirty, or for ten years in the case of someone studying pharmacy at university.

In view of this, does the Commission not consider the provisions of Italian law to be incompatible with the EC Treaty since they actually mean that individual undertakings in this case pharmacies can wield a monopoly and abuse their position to the detriment of patients and consumers?

Does the Commission not consider that the exclusive sale by pharmacies of over-the-counter drugs, which could be sold via other channels, and the fixing of quotas on pharmacy numbers in order to guarantee the income levels of pharmacists, are blatant examples of distortion of competition rules?

Answer given by Mr Bolkestein on behalf of the Commission

(12 December 2002)

The Commission notes first of all that the Honourable Member's questions concern issues of a general nature which involve most Member States. As it has already stated in answer to a previous written question on the monopolistic system of regulating chemists' shops in Italy(1), the Commission is of the opinion that national measures such as the monopoly position enjoyed by chemists for sales of over-the-counter medicinal products, and geographic and demographic criteria determining the opening of chemists' shops, are not contrary to the principle of freedom of establishment provided for in Article 43 of the EC Treaty insofar as they are applied in a non-discriminatory manner and are in proportion to their purpose.

The Commission is also of the opinion that according to the relevant case law of the Court of Justice(2), allowing a product to be sold exclusively by pharmacies would not prevent access to the national market of pharmaceuticals from other Member States and would not, therefore, infringe Article 28 of the EC Treaty. This also applies to the limiting of the number of pharmacies and their national distribution, unless their distribution is likely to compromise the satisfactory supply of pharmaceuticals to consumers, in which case they could prove incompatible with Articles 28 to 30 of the EC Treaty.

However, the Commission needs more information in order to make a full analysis of the various rules on this subject, particularly from the points of view of Articles 28, 43 and 49 of the EC Treaty. It therefore intends to send a request for information soon to the Italian authorities specifically regarding the points mentioned by the Honourable Member.

As regards the application of competition rules, even though on the surface it might appear that the measures referred to constitute unfair competition, Community competition rules do not apply. Article 81 of the EC Treaty would apply only if the practices referred to by the Honourable Member resulted from the independent decisions or agreements of the Order of Pharmacists, which is not the case. As for Article 82 of the EC Treaty, it would have to be shown that pharmacists are collectively in a dominant position. However, given that the structural links between them are insufficient, pharmacists cannot be considered as occupying a collective dominant position within the meaning of Article 82 of the EC Treaty.

In any event, the Commission is aware of the situation identified by the Honourable Member and will continue to monitor developments. The Commission will, in particular, take action against any conduct contrary to Articles 81 and 82 of the EC Treaty.

(1) See the Commission's answer to written question E-3247/98 by Mr Caccavale, OJ L 320, 6.11.1999.

(2) Judgment of 29.6.1995.