(Case C‑217/09)

Article 104(3, first subparagraph, of the Rules of Procedure – Article 49 TFEU – Freedom of establishment – Public health – Pharmacies – Proximity – Supply of the population with medicines – Authorisation to operate – Territorial distribution of pharmacies – Establishment of limits based on a criterion of demographic density – Minimum distance between pharmacies

Freedom of establishment – Restrictions – National legislation requiring prior administrative authorisation for the opening and transfer of pharmacies in a given area (Art. 49 TFEU) (see paras 33-34, operative part 1 and 2)

Re:

Reference for a preliminary ruling – Tribunale Amministrativo Regionale per il Piemonte – Interpretation of Arts 43, 152 and 153 EC – Opening of new pharmacies – National legislation making authorisation for the moving of a pharmacy subject to the keeping of a minimum distance between one pharmacy and another.

Operative part

Article 49 TFEU must be interpreted as not, in principle, precluding national legislation, such as that at issue in the main proceedings, which places limits on the setting up of pharmacies by providing that:

–in each pharmaceutical area, only one pharmacy may be created, in principle, per 4 000 or 5 000 inhabitants; and

–each pharmacy must keep a minimum distance from pre-existing pharmacies, that distance being, as a general rule, 200 metres.

However, Article 49 TFEU precludes such national legislation in so far as the basic rules of 4 000 or 5 000 inhabitants and 200 metres prevent the creation, in any geographical area with particular demographic characteristics, of a sufficient number of pharmacies capable of providing an appropriate pharmaceutical service, which it is for the national court to verify.