WRITTEN QUESTION E-3011/98

by Amedeo Amadeo (NI) to the Commission

(8 October 1998)

Subject: Free competition between private undertakings

Under Tuscan Regional Law No 67/95, all the chemists in the region, whether public or private, are obliged to close for a minimum period each year, for holidays.

It is inadmissible to place a legal obligation on professional persons or businessmen to close their undertakings for a minimum holiday period, in that such an obligation violates the principle of free enterprise and the right to engage in a professional activity.

The Commission(with particular reference to the Commissioner in charge of competition matters, Mr Van Miert) is therefore asked to state its views on the matter and take appropriate action.

Answer given by Mr Monti on behalf of the Commission

(7 December 1998)

The situation described by the Honourable Member does not appear to be contrary to Community law.

Council Directive 85/432/EEC of 16 September 1985 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of certain activities in the field of pharmacy(1) did in fact introduce a minimum level of coordination regarding training conditions and access to the profession of pharmacist, and the conditions for carrying out this profession.

However, this coordination was not total and did not, for example, cover the operating conditions of dispensing pharmacies. In this connection, the Commission would draw the Honourable Member's attention to the second recital of the above-mentioned Directive. This recital stipulates that "this Directive does not ensure coordination of all conditions of access to and pursuit of activities in the field of pharmacy, and, in particular, the geographical distribution of pharmacies and the monopoly of the supply of medicinal products continue to be matters for the Member States".

In fact, in the absence of Community legislation for harmonisation or coordination in this area, the Member States retain sole responsibility for adopting regulations concerning the operating conditions for dispensing pharmacies, provided that these regulations are compatible with Community law.

In this respect, the Commission considers that national measures such as the one mentioned here (the obligation to close for a minimum period each year) are not contrary to the principle of the freedom of establishment contained in Article 52 of the EC Treaty, provided that they are applied in a non-discriminatory fashion and are proportionate to the stated objective, within the specific context of the right of establishment in the Community.

Finally, the measure mentioned by the Honourable Member does not appear to be contrary to Community competition law. Articles 85 and 86 of the EC Treaty only in fact relate to the conduct of undertakings and do not cover measures adopted by the State. The joint application of Article 3(g), the second paragraph of Article 5 and Article 85 of the EC Treaty should also be ruled out.

In connection with this, the Commission would refer the Honourable Member to the decisions taken by the Court of Justice, according to which the joint application of these Articles is only possible where a Member State required or favoured the adoption of an agreement contrary to Article 85 or reinforced its effects or deprived its own legislation of its official character by delegating to private traders responsibility for taking decisions affecting the economic sphere (cf. the Meng judgment of 17.11.1993, case C-2/91, ECR I-5751 and the Ohra judgment of 17.11.1993, case C-245/91, ECR I-5851).

(1) OJ L 253, 24.9.1985.