In a major blow to supermarkets and other big retail chains, the European Court of Justice (ECoJ) has ruled that EU (European Union) law allows member states to restrict the ownership and operation of pharmacies to pharmacists alone.

The Court issued a joint ruling on two cases this week after being asked to decide whether Community law overrides Italian and German national laws stating that only pharmacists may own and run pharmacies.

The most high-profile of the two cases involves DocMorris, a Dutch-based discount pharmacy company and Europe’s first mail-order pharmacy, which went to the ECoJ for a ruling after the German Administrative Court in Saarland upheld a challenge by pharmacist groups to its plans to open a low-cost pharmacy in Saarbrucken. DocMorris is a subsidiary of the big German pharmacy chain Celesio, and Germany is its major mail-order market.

In the other case, the European Commission applied to the ECoJ for a declaration that, by allowing only pharmacists to own and operate private pharmacies, Italy has failed to fulfil its obligations under Community law.

In its judgements, the Court agreed that German and Italian laws’ curbs on pharmacy ownership do constitute a restriction on freedom of establishment and the free movement of capital. However, it added, such restrictions can be justified by the objective of ensuring that the provision of medicines to the public is reliable and of good quality.

In case where this may be uncertain, EU member states must be able to take protective measures without having to wait until the reality of the risk becomes fully apparent. They must also be able to take measures that reduce a public health risk as far as possible, it said.

In its decisions, the Court drew attention to “the very particular nature of medicinal products, whose therapeutic effects distinguish them substantially from other goods,” as, if they are consumed unnecessarily or incorrectly, they may cause serious harm to health with the patient being in a position to realise that when they are administered.

Overconsumption or incorrect use of medicines also leads to “a waste of financial resources, which is all the more damaging because the pharmaceutical sector generates considerable costs and must satisfy increasing needs while the financial resources which may be made available for healthcare are not unlimited,” the Court stated.

Moreover, it noted that, while pharmacists seek to make a profit, they also operate their businesses from a professional viewpoint which is tempered by their training, professional experience and responsibility. By definition, non-pharmacists lack this training, experience and responsibility and so cannot provide the same safeguards.

“A member state may therefore take the view…that the operation of a pharmacy by a non-pharmacist may represent a risk to public health, in particular to the reliability and quality of the supply of medicinal products at retail level,” the Court ruled.

Celesio’s chief executive, Fritz Oesterle, said he welcomed the “clarity" provided by the European Court ruling, adding: “at least this ruling gives Celesio planning reliability for the time being.”

DocMorris will now focus on expanding its brand partner and mail-order activities, while Celesio will become “much more widely active” for its various customer groups – patients and consumers, pharmacies and pharmaceutical manufacturers, he said. Celesio will expand its activities to supply pharmacies with “everything they need – and by that I mean ‘everything.’ This includes not only the prompt delivery of medicines, but in principle a range from pharmacy software to advertising media,” said Mr Oesterle.

“Whatever orders pharmaceutical manufacturers assign to external service providers, we aim to cover as many of them as possible,” he added.