La distribution au détail du médicament au sein de l'Union Européenne: un croisement entre santé et commerce. La délimitation des règles appliquées à l'exploitation des officines

Olivier Debarge

Revue internationale de droit économique, 2011, vol. t.XXV, issue 2, 193-238

Abstract: Given its hybrid status which involves health and trade the retail distribution of pharmaceuticals is at a cross-road. Three different issues polarize the attention : The opening of the capital of the pharmacies, the maintaining of the monopoly positions of the pharmacies, and, finally, the criterias set forth for the establishment and the geographical repartition of the pharmacies. In application of the principle of sub-sidiary, Member States have developed three different models following different rationales : a deregulated model that promotes competition within the pharmaceuticals retail business, a regulated model which takes into account the specificities of the pharmaceutical sector and a mixed model. The European Commission has expressed its opposition to the regulated and mixed models which, it contends, violate the core principles of the freedom of establishment and the free movement of capitals. It has initiated several lawsuits before the European Court of Justice based on the violation of Article 258 TFUE against some Member States. The legislations applicable to the functioning of the pharmacies are subject to increasing changes which create uncertainties expressed by the Member States and the professional orders. Through several law suits, the European Court of Justice had to decide to what extent Member States could disregard the application of the basic freedoms on the grounds of public interest considerations. The Court ruled in favour of the protection of public health to the detriment of an absolute and unlimited competition.

Keywords: competition law; community pharmacies; freedom of establishment; free movement of capitals; public interest; public health (search for similar items in EconPapers)
Date: 2011
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