Case 181718

C.E., n°181718, 12 June 1998
Download Judgment: French

Mr. Francois X, a pharmacist practicing in the Rosny-sou-Bois commercial center, along with his employer, the Plus Pharmacie association, requested the annulment of decree no 96-531 of June 14 1996. The decree related to advertisement of medications and other products for medical use. The decree modifies the public health code to insert a new article prohibiting advertisements for pharmaceutical dispensaries except under certain conditions when authorized by the State Council.

Article R. 5053-3 of the public health code retains authorization for publication in the written press and announcements of the address of a dispensary, the name of its owner and the services available there. Health education brochures that include the name and address of the pharmacy can also be made available within the dispensary itself, along with promotional objects or products of negligible value.

1. Does decree no 96-531 violate the principle of free circulation in the Treaty of Rome?

No. The law itself does not create a barrier to the commercialization of the products that the pharmacies sell and does not endanger the free circulation of merchandise or commerce in the European community. The law is not a a quantitative restriction of imports as prohibited under article 30 of the Treaty of Rome of March 25, 1957

2. Does decree no 96-531 violate directive n 92-28 of 31 March 1992 of the Council of European Communities?

No. The directive in question relates only to medications and not to pharmaceutical dispensaries.

3. Does decree no 96-531 violate article 10 of the European Convention on the Rights of Man and Fundamental Liberties?

No. The stipulation of paragraph 2 of article 10 states that the exercise of freedom of expression can be subject to certain formalities, conditions, restrictions or sanctions that constitute necessary measures for the protection of the health, the morale, or the protection of the rights and liberties of others.

The legislature found it in the interest of public health to ensure an even distribution of pharmaceutical dispensaries throughout the nation and to guarantee to the population easy access to the services it offers. Excessive competition between the pharmacies, aided by significant publicity would endanger the State’s ability to ensure the equal availability of pharmaceutical services. In light of the imperative of the protection of public health and the deontological principles of the pharmaceutical profession, the decree does not excessively limit the freedom of expression.

4. Does decree no 96-531 violate the principle of equality?

No. While the law restricts the advertisements of dispensaries but not pharmaceutical businesses, it does not violate the principle of equality because dispensaries serve a unique societal role vital to public health.

5. Does decree no 96-531 violate the law of December 31, 1990 relating to the exercise by liberal associations of one’s profession?

No. The decree still allows for the publication of the name and location of pharmacies as well as the names of individuals pharmacists.

View Summary as PDF