Austria Business Limits Draw EU’s Concern

(CN) - Relying solely on demographics to authorize pharmacy openings in Austria does not account for local conditions in sparsely populated areas, Europe's highest court ruled Thursday.

The case stems from Susanne Sokoll-Seebacher's denied application to open a pharmacy in Pinsdorf, Austria, pop. 3,445,

Austria's complicated law governing pharmacies requires that when there is an existing drug store, the number of people already served there cannot drop below 5,500 within a 2.5 mile radius. In this case, officials determined that tiny Pinsdorf could not support Sokoll-Seebacher's new drug store since the existing pharmacy's customer base would drop to 1,513 people - well below the 5,500 threshold required by Austrian law.

A local court hearing the case against the district of Gmunden, in Upper Austria, asked the Court of Justice of the European Union to shed light on whether Austria's pharmacy law contradicted the EU's rules on free business and establishment.

While the Luxembourg-based high court has previously upheld demographic limits on health shops, it noted Thursday that Pinsdorf's rural isolation changes things.

"The uniform application, over the entire territory concerned, of conditions relating to the demographic density and the minimum distance between pharmacies laid down by national legislation governing the opening of a new pharmacy might well be unsuccessful, in certain circumstances, in ensuring adequate access to pharmaceutical services in areas which have certain special demographic features," the court wrote.

"More specifically, as regards the conditions relating to demographic density the court considered that the uniform application of those conditions, without any possibility of derogation, would lead in certain rural areas where the population is generally dispersed and less numerous to certain inhabitants concerned finding themselves beyond reasonable distance of a pharmacy and thus possibly being denied adequate access to pharmaceutical services," the justices continued.

The court noted that many of Pinsdorf's residents live beyond the 2.5-mile radius of the existing drug store. These individuals were not even counted in the official rejection of Sokoll-Seebacher's application, according to the ruling.

Austria's regulation does not account for the fact that in rural areas, accessing medicine often requires driving much further than a few miles to town, the court said.

"That is all the more true given that, in addition, some of them are people with reduced mobility, either temporarily or in the long term, such as old, disabled or sick people," the court wrote. "First, their health may require that medicinal products be administered urgently or frequently and, second, their links with the different areas are, on account of their health, very weak, sometimes non-existent."

It is possible "that equal and adequate access may not be guaranteed for certain people living in rural and isolated regions situated outside the existing pharmacies' areas of supply, in particular for people with reduced mobility," in applying the criterion relating to the number of "people remaining to be served," according to the ruling.

The court sent the case back to the local court for a final decision.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit