Marja-Liisa Susisalo and Others.
Date: 2012-06-21
16. In that connection, it should be recalled that, although, in view of the division of responsibilities in the preliminary-ruling procedure, it is for the referring court alone to determine the subject-matter of the questions which it proposes to refer to the Court, in exceptional circumstances, it will examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert  [2010] ECR I-11063, paragraph 39).
17. That is the case in particular where the problem referred to the Court is purely hypothetical or where the interpretation of a Community rule which is sought by the national court has no relation to the actual facts of the main action or to its purpose. Thus, the Court has declined jurisdiction where it was obvious that the provision of Community law referred to the Court for interpretation was incapable of applying (Case C-567/07 Woningstichting Sint Servatius  [2009] ECR I-9021, paragraph 43 and the case-law cited).
18. According to settled case-law, the provisions of the Treaty on freedom of establishment and the freedom to provide services do not apply to purely internal situations in a Member State (see, to that effect, Joined Cases C-54/88, C-91/88 an C-14/89 Nino and Others  [1990] ECR I-3537, paragraph 11; Case C-134/94 Esso Española  [1995] ECR I-4223, paragraph 17; and Case C-389/05 Commission  v France  [2008] ECR I-5397, paragraph 49).
20. However, even in a purely internal situation such as those at issue in the main proceedings, the Court’s answer may nevertheless be useful to the referring court, in particular if its national law required it to grant the same rights to a Finnish national as those which a national of another Member State in the same situation would derive from European Union law (see, Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez  [2010] ECR I-4629, paragraph 39; Case C-393/08 Sbarigia [2010] ECR I-6333, paragraph 23; and Case C-245/09 Omalet [2010] ECR I-13771, paragraph 15).
26. In order to answer the questions referred, it should first be noted that, pursuant to Article 168(7) TFEU, as clarified by the case-law of the Court, EU law does not detract from the power of the Member States to organise their social security systems and to adopt, in particular, provisions to govern the organisation of health services such as pharmacies ( Blanco Pérez and Chao Gómez , paragraph 43 and the case-law cited).
27. In exercising that power, however, the Member States must comply with European Union law, in particular the provisions of the Treaty on fundamental freedoms, including freedom of establishment. Those provisions prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of those freedoms in the healthcare sector (see, to that effect, Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes and Others  [2009] ECR I-4171, paragraph 18; Case C-345/09 van Delft and Others  [2010] ECR I-9879, paragraph 84; and Case C-89/09 Commission  v France [2010] ECR I-12941, paragraph 41).
28. When assessing whether that obligation has been complied with, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the Treaty and that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since the level may vary from one Member State to another, Member States should be allowed a measure of discretion (see, to that effect, Case C-531/06 Commission  v Italy  [2009] ECR I-4103, paragraph 36, and Blanco Pérez and Chao Gómez  paragraph 44 and the case-law cited).
29. Furthermore, no provision of European Union law lays down rules concerning access to activities in the pharmacy field, which seek to set the conditions for opening new pharmacies or any branch pharmacies in Member States (see, to that effect, Blanco Pérez and Chao Gómez , paragraph 45).
31. Article 49 TFEU requires the abolition of restrictions on the freedom of establishment. According to their wording, the Treaty provisions on freedom of establishment are aimed at ensuring that foreign nationals are treated in the host Member State in the same way as nationals of that State. Moreover, according to settled case-law, Article 49 TFEU precludes any national measure which, even if applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Union nationals of the freedom of establishment that is guaranteed by the Treaty (see, to that effect, Case C-371/10 National Grid Indus  [2011] ECR I-12273, paragraphs 35 and 36).
34. It must be held that the preferential system granted to UHP, in terms of the number of branch pharmacies allowed and the conditions for the operating licences of those branches, is likely to deprive a private pharmacist of the right to set up a branch pharmacy in one of the 16 geographical areas in which the UHP has established a branch, which is likely to render less attractive the pursuit, by private pharmacists from other Member States, of their activities in Finland through a permanent establishment. The fact that the restrictive effects of that preferential system affect home country nationals and those from other Member States alike is not such as to exclude that preferential system from the scope of Article 49 TFEU (see, to that effect, Case C-353/89 Commission  v Netherlands  [1991] ECR I-4069, paragraphs 24 and 25).
36. It is settled case-law that restrictions on freedom of establishment which are applicable without discrimination on grounds of nationality may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining that objective ( Blanco Pérez and Chao Gómez , paragraph 61).
37. It is also apparent from Article 52(1) TFEU that the protection of public health can justify restrictions on the fundamental freedoms guaranteed by the Treaty, such as the freedom of establishment. More specifically, restrictions on the freedom of establishment may be justified by the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality. The importance of that objective is confirmed by Article 168(1) TFEU and Article 35 of the Charter of Fundamental Rights of the European Union, under which, inter alia, a high level of protection for human health is to be ensured in the definition and implementation of all policies and activities of the European Union ( Blanco Pérez and Chao Gómez , paragraphs 63 to 65).