26.1.2013

Official Journal of the European Union

C 26/25

(Case C-497/12)

2013/C 26/49

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicants: Davide Gullotta, Farmacia di Gullotta Davide & C. Sas

Defendants: Ministero della Salute, Azienda Sanitaria Provinciale di Catania

Questions referred

1.Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy included on the ‘pianta organica’ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca’ — that is to say, pharmaceutical products the cost of which is borne, not by the Italian national health service, but wholly by the citizen — and which thereby also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical products, as well as a quota in relation to the number of commercial outlets which may be established within the national territory?

2.Must Article 15 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the principle therein established also applies, without restriction, to the profession of pharmacist, and that the public-interest aspect of that profession does not justify the application of different arrangements to the proprietors of pharmacies and to the proprietors of para-pharmacies as regards the sale of the medicinal products referred to in Question (1) above?

3.Must Articles 102 [TFEU] and 106 [TFEU] be interpreted as meaning that the prohibition of the abuse of a dominant position must apply without restriction to the profession of pharmacist, inasmuch as a pharmacist who owns a traditional pharmacy, and sells medicinal products under a contractual arrangement with the Italian national health service, benefits from the ban on the sale of Class C medicinal products by proprietors of para-pharmacies, without this being properly justified on the basis of the undeniably special features of the profession of pharmacist arising from the public interest in safeguarding public health?