Court of Justice 16 December 2008, C-171/07 and C-172/07 (Apothekerkammer des Saarlandes and Others (C-171/07) and Helga Neumann-Seiwert (C-172/07) v Saarland and Ministerium für Justiz, Gesundheit und Soziales.)

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In this Advocate-General's Opinion concerning joined preliminary references from the Verwaltungsgericht des Saarlandes (Administrative Court, Saarland), the central legal issue is whether Articles 43 EC and 48 EC preclude national legislation (the German Law on Pharmacies, Apothekengesetz) restricting pharmacy ownership and operation exclusively to licensed pharmacists (the 'Fremdbesitzverbot', or prohibition on third-party ownership). The Advocate-General opines that, while such legislation constitutes a restriction on freedom of establishment by preventing capital companies such as DocMorris NV from obtaining an operating licence, it is justified by the overriding public interest objective of ensuring proper provision of medicinal products to the public, is applied without discrimination, and does not exceed the limits of Member State discretion under Article 152(5) EC. The Advocate-General further opines that the restriction is both appropriate and proportionate, distinguishing the dispensing of medicinal products from the sale of optical products addressed in Commission v Greece, and concludes that Articles 43 EC and 48 EC do not preclude such national legislation.AI