(Case C‑315/08)

Article 104(3), first paragraph, of the Rules of Procedure – Article 49 TFEU – Freedom of establishment – Public health – Pharmacies – Proximity – Supply of medicinal products to the population – Operating authorisation – Territorial distribution of pharmacies – Minimum distance between pharmacies

Freedom of establishment – Restrictions – National legislation requiring prior authorisation for the opening of new pharmacies in a given region – Conditions for grant linked to demographic density and to the minimum distance between pharmacies – Whether permissible – Conditions – To be determined by the national court (Art. 49 TFEU) (see paras 21-38, operative part)

Re:

Reference for a preliminary ruling – Consiglio di Stato – Interpretation of Articles 152 and 153 EC – Opening of new pharmacies – National legislation fixing limits on the basis of the number of inhabitants and laying down the conditions for authorising the opening of a new pharmacy.

Operative part

Article 49 TFEU does not preclude national legislation, such as that at issue in the main proceedings, which limits the establishment of new pharmacies by providing that

–in towns with a population of fewer than 4 000 inhabitants, one pharmacy only may be set up and

–in towns with more than 4 000 inhabitants, the establishment of a new pharmacy is subject to conditions, such as the exceeding by at least 50% of the number of inhabitants needed for a pharmacy and a minimum distance from already existing pharmacies,

on condition that such legislation permits, by way of derogation from its basic rules, the establishment of a sufficient number of pharmacies to guarantee an appropriate pharmaceutical service in areas with special demographic or geographical characteristics, something which it is for the national court to ascertain.