UK ends the discrimination on EU PHARMACISTS on the 03rd November 2011

	EUROPEAN PARLIAMENT	2009 - 2014

<Commission>{PETI}Committee on PetitionsCommission>

{27.01.2012}27.01.2012

NOTICE TO MEMBERS

Subject: Petition 0006/2009 by Jean Marie Taga Fosso (French) concerning discrimination based on nationality regarding the refusal of the British authorities to recognise his French degree in pharmacy,

Petition 1413/2009 by AE (Spanish), on alleged discrimination on the basis of nationality in relation to the access to the pharmacist profession in the United Kingdom,

Petition 1812/2009 by José Antonio Melgarejo Melgarejo (Spanish), on those seeking to work as pharmacists in the United Kingdom who have qualifications from other Member States,

Petition 0479/2011 by Obi Aso (Hungarian), on limitations on working as a pharmacist in the United Kingdom

1. Summary of petition 0006/2009

The petitioner objects to the stance adopted by the British authorities (Department of Health) regarding his French university degree in pharmacy, indicating that they are refusing to permit his appointment as chief pharmacist in any pharmacy which has not been registered for over three years. This is the rule which applies to holders of pharmacy qualifications from an EU Member State university (1954 Pharmacy Act and 2006 Health Act). Under the terms of Directive 85/433/EEC (Article 2(2)) Member States need not give effect to pharmaceutical qualifications for the purposes of ownership, management or supervision of a pharmacy which has been in operation for less than three years. The petitioner maintains that this restriction applies only to those who obtain their qualification in an EU Member State and not to holders of such qualifications from third countries. He objects to the fact that his long experience as a pharmacist in the United Kingdom is not recognised for the purposes of appointment as chief pharmacist at a new pharmacy because of the fact that he is a French national holding a French qualification. He is accordingly seeking an amendment to both the directive and the provisions transposing it into British legislation.

Summary of petition 1413/2009

The petitioner considers that he is being discriminated against on the basis of nationality as he does not have the right to access to a management position in a British pharmacy which has been open for less than three years. According to the petitioner, the United Kingdom is misinterpreting the provisions of Article 21 paragraph 4 of the Directive 2005/36/EC on recognition of professional qualifications which states that ‘Member States shall not be obliged to give effect to evidence of formal qualifications for the setting up of new pharmacies open to the public’ with ‘pharmacies which have been open for less than three years shall also be considered new pharmacies’. The petitioner considers that the requirements set by the British authorities in respect of nationals of other EU Member States holding professional qualifications in this field place them in an unequal position in comparison with the British nationals.

Summary of petition 1812/2009

The petitioner expresses concern at the implications of the ‘Medicines Act’, the third section of which stipulates that, in order to work as a pharmacist in new pharmaceutical premises in the United Kingdom, a three-year registration period is the necessary minimum. The petitioner regards this as blatant discrimination based on nationality, since holders of British pharmaceutical qualifications are not subject to the same restrictions.

Summary of petition 0479/2011

The petitioner protests against British legislation that sets specific criteria for working as a pharmacist.

He considers these criteria a violation of the freedom of movement of workers and the single market.

2. Admissibility

0006/2009: Declared admissible on 16 April 2009.

1413/2009: Declared admissible on 12 January 2010.

1812/2009: Declared admissible on 22 March 2010.

0479/2011: Declared admissible on 19 September 2011.

The Commission has been asked to provide information (Rule 202(6) of the Rules of Procedure).

3. The Commission's reply for 0006/2009, received on 7 July 2009.

The petitioner, who is a French citizen, obtained his state diploma of doctor of pharmacy in July 1998. He became a member of the National Order of Pharmacists in 1998 and the 'Royal Pharmaceutical Society of Great Britain' in October 1998. Since that time he has been practising in the United Kingdom.

In May 2007, ASDA Store Management refused to appoint him 'in-store pharmacist' in a pharmacy on the grounds that he had obtained his qualifications in France. He appealed against this decision to the Department of Health which informed him that the issue of the access of European citizens to the management of new pharmacies was under review, but that Member States were free to choose whether to apply the derogation provided for in Article 2(2) of Directive 85/433/EEC[1].

Furthermore, the petitioner takes the view that by authorising third country nationals who have obtained their qualifications in the United Kingdom to be appointed as chief pharmacist in the United Kingdom was guilty of discrimination on the basis of nationality.

At the outset, it should be noted that following the abrogation of Directive 85/433/EEC by Article 62 of Directive 2005/36/EC[2], the recognition of professional qualifications, in particular of pharmacists, is regulated by this second directive which came into force on 20 October 2007.

Article 21(4) of Directive 2005/36/EC provides for the same derogation as that in Article 2(2) of Directive 85/433/EEC. This derogation authorises Member States not to give effect to the training qualifications referred to in Annex V.5.2 of the directive for the setting up of new pharmacies open to the public. For the purposes of this paragraph, pharmacies which have been open less than three years are considered as new pharmacies. This derogation authorises Member States not to grant automatic recognition to the holders of the diplomas referred to in the Annex to the directive.

However, this does not mean that Member States may refuse authorisation to the citizen of a Member State to be appointed Chief Pharmacist in a new pharmacy simply on the basis of Article 21(4) of Directive 2005/36/EC. This Article does not allow any derogation from the Treaty, in particular Article 43 thereof which guarantees freedom of establishment. Under this Article, recognition of professional qualifications must be granted, taking into account all the diplomas and professional experience of the person wishing to be appointed Chief Pharmacist to a new pharmacy. Moreover, access to this field of activity may not be refused on the sole basis of Article 21(4) whose purpose is not to provide derogation from automatic recognition procedures. In order to comply with the Treaty, any refusal must be based on the Gebhard judgment[3] which provides that 'national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it'.

As regards the alleged discrimination by the United Kingdom on the basis of nationality, it should be noted that, according to information available to the Commission, the United Kingdom refuses to give effect solely to qualifications obtained in other Member States; a national of a Member State who obtains qualifications in the United Kingdom is not affected by this restriction. The petitioner obtained his qualifications in France, and is not therefore in the same situation as a citizen of a third country or a Member State national who had obtained his qualifications in the United Kingdom. Persons in different legal situations may find themselves subject to different rules, without, however, being the subject of discrimination.

Article 21(4) of Directive 2005/36/EC allows Member States not to give the benefit of automatic recognition to pharmacists' training qualifications obtained in other Member States for carrying out the activities of pharmacist as chief pharmacist in new pharmacies. This provision does not, however, mean that access to this activity may be refused. The restrictions which the petitioner complains about must be assessed on the basis of Article 43 TEC. The Commission will contact the UK to verify whether these principles are being respected in legislation and in the way the law is applied.

4. Commission reply for 0006/2009, received on 22 January 2010.

The Commission has recently been informed that the petitioner tried to bring the decision of ASDA Store Management before the High Court of London, but that his request for a judicial review was refused. His appeal before the High Court of London was also rejected on 14 October 2009.

Further to its previous reply, the Commission wishes to inform the European Parliament that it has contacted the British authorities about the restrictions reported by the petitioner. In their response of 24 September 2009, the British authorities supplied the following information:

- The Royal Pharmaceutical Society of Great Britain (RPSGB) gives automatic recognition to the qualifications listed in Annex V, point 5.6.2, of Directive 2005/36/EC[4].

- The RPSGB automatically recognises qualifications that do not meet the conditions of the Directive but that benefit from acquired rights.

- In all other cases, by virtue of Articles 10(b) and 10(g) of the Directive, the RPSGB applies the general system for the recognition of qualifications.

- At the time of recognition, the RPSGB draws the migrant's attention to the fact that, under Articles 70 and 71 of the Medicines Act 1968 and Article 21(4) of the Directive, he cannot assume personal control of a new pharmacy.

- Indeed, Articles 70 and 71 of the Medicines Act 1968 prohibit anyone holding 'a qualification in pharmacy awarded by a relevant European State' from having personal control of a new pharmacy.

- This prohibition applies without regard to the recognition procedure applied (points 1 to 3 above).

- The prohibition also applies to persons whose professional qualifications would be recognised on the basis of the Treaty, notably by virtue of the Court of Justice case law in the Vlassopoulou[5] and Hocsman[6] cases.

- However, the prohibition does not apply:

1. to citizens of third countries with a European qualification;
2. to the opening of a new pharmacy via the creation of a company (provided that control of the pharmacy is given to a pharmacist with a non-European qualification);
3. to the post of 'superintendent pharmacist', as long as the person does not have control of the pharmacy.

It appears from the British authorities' reply that they interpret Article 21(4) of the Directive as authorising the Member States not to give full effect to qualifications obtained in another Member State when it comes to the control of a new pharmacy.

Article 21(4) is worded as follows:

'Member States shall not be obliged to give effect to evidence of formal qualifications referred to in Annex V, point 5.6.2, for the setting up of new pharmacies open to the public. For the purposes of this paragraph, pharmacies which have been open for less than three years shall also be considered as new pharmacies.'

However, Article 21 is in Title III, Chapter III, of the Directive, on recognition on the basis of coordination of minimum training conditions. Article 21 sets out and structures the principle of automatic recognition. Consequently, the derogation created by Article 21(4) of the Directive must be interpreted as introducing an exception only to the principle of automatic recognition. This exception does not, therefore, affect the other recognition procedures set out in the Directive or the rights migrants may enjoy on the basis of the Treaty.

Article 21(4) of the Directive therefore does no more than impose on the Member States an obligation of automatic recognition for pharmacies open for more than three years. If a migrant wishes to practise his or her profession in a pharmacy open for more than three years, the Member States must automatically recognise his or her professional qualifications corresponding to the minimum training conditions provided for by the Directive. On the other hand, the recognition of qualifications for pharmacies open for less than three years is not regulated by the Directive and consequently falls within the scope of primary legislation.

Conclusions

The Commission intends to contact the British authorities again in order to examine the compatibility of existing provisions with the freedoms provided for in the Treaty.

5. Commission reply for 0006/2009, 1413/2009 & 1812/2009 received on 13 January 2011

The Commission contacted the UK authorities via the electronic EU Pilot system on 26 June 2010 to assess the compatibility of the UK legislation with the freedom of establishment provided for in article 49 of the Treaty on the Functioning of the European Union (TFEU).

The Commission and Member State authorities use the EU Pilot system as a working method to exchange information and solve problems. It was decided that, wherever there might be recourse to an infringement proceeding, the Commission services will contact the Member State's authorities via EU Pilot before the first step in such a proceeding is proposed to the College of Commissioners under Article 258.

The Commission received the UK authorities' reply on 7 September 2010. It states that the UK authorities intend to remove the restriction under which pharmacists who obtained their pharmacy qualification in an EU Member State other than the UK and who are registered to practise in the UK may not be a responsible pharmacist in charge of a newly established pharmacy within the meaning of the Directive 2005/36/EC on the recognition of professional qualifications. According to the UK authorities letter "the timetable for such change is subject to consultation and to Parliamentary process."

As the UK authorities did not indicate a reasonable timetable for such an amendment of the UK legislation, the Commission (by e-mail of 21 October 2010), invited the UK authorities to submit the draft legislative proposal and a precise and realistic timetable for its adoption and entry into force.

In the same email, the Commission requested the UK authorities to clarify why a public consultation was necessary before amending the law, as the petitioner submitted the copy of a letter that 5 key pharmaceutical organizations (among others the Royal Pharmaceutical Society, at that time the competent authority for pharmacists in the UK) sent on 3 December 2009 to the Department of Health, requesting the removal of the above mentioned restriction from the Medicines Act 1968.

The Commission received an answer on 8 November 2010. The UK authorities indicated that it was a statutory requirement under The Medicines Act to hold a public consultation before a proposal for legislative amendment is introduced. The UK authorities stated that they would decide about the legislative vehicle that might be used to repeal the restriction after assessing the responses to the formal consultation.

The UK authorities could not provide the Commission with a draft legislative proposal or any draft timetable for its adoption and its entry into force.

The Commission's services are currently considering whether it is necessary to propose to the College of Commissioners to send a letter of formal notice to the United Kingdom under Article 258 TFEU.

6. Commission reply for 0006/2009, 1413/2009 & 1812/2009 (REV.III) received on 6 Septembre 2011

In 17 December 2010 the UK authorities sent a letter to the Commission stating that they did not share the Commission's view that the current Medicines Act 1968 which prohibited EU qualified pharmacists from managing a new pharmacy was contrary to EU Law.

However, they expressed their willingness to submit a legislative proposal to the UK Parliament to repeal this prohibition by the summer of 2011.

The Commission understands from the information provided by the UK authorities that it is a statutory obligation under the Medicines Act 1968 to organize a public consultation before proposing any amendment of the act. The UK authorities therefore launched a public consultation in January 2011. The large majority of respondents supported the repeal of the prohibition.

Following the closure of the public consultation, the UK Department of Health has prepared a legislative draft which was submitted to the UK Parliament on 14 July 2011. The UK authorities sent the copy of the submitted draft to the Commission on the same day.

The Commission's services are currently examining the legislative draft and will inform the Committee on Petitions of their findings.

7. Commission reply for 0006/2009, 1413/2009, 1812/2009 and 0479/2011 (REV.IV) received on 27 January 2012

The Commission is pleased to inform the European Parliament's Committee on Petitions that following the intervention by the Commission with the UK authorities, the UK Parliament adopted on 3 November 2011 a national legislation entitled "Pharmacy Order 2011" which amends the Medicines Act 1968.

The order which entered into force on 4 November 2011 repealed the provisions of the Medicines Act 1968 which prohibited EU qualified pharmacists from being appointed as chief pharmacists for pharmacies in the UK, open to the public, which have been registered for less than three years.

Consequently, the Commission considers that the UK has re-established the compliance of its national legislation with EU Law, in particular with Directive 2005/36/EC on the recognition of professional qualifications (the Directive)[7] and with Articles 45 and 49 of the Treaty on the Functioning of the European Union (TFEU).

The petitioners were informed by the Commission about this new development on 15^th December 2011.

The petitioner of petition 6/2009 indicated to the Commission an additional grievance. He launched an action before the High Court of London claiming damages from the UK authorities for the UK's failure to apply Articles 45 and 49 TFEU and Article 21(4) of the Directive in national law. In his view the failure of the High Court of London, a Court of final instance for the case at hand, to refer the case to the European Court of Justice for a preliminary ruling constitutes a breach of an obligation under EU Law.

The Commission services consider that this grievance is independent from the subject matter of the present petitions. Therefore, it was registered by the Commission as a new complaint and is being examined separately. The petitioner concerned was informed about this and he agreed to this procedure.

---

[1] Council Directive 85/433/EEC of 16 September 1985 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in pharmacy, including measures to facilitate the effective exercise of the right of establishment relating to certain activities in the field of pharmacy, OJ L 253, 24.9.1985, p. 37–42.

[2] Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, OJ L 255, 30.9.2005, p. 22–142.

[3] Case C-55/94, Gebhard, point 39.

[4] Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, OJ L 255, 30.9.2006, p. 22–142.

[5] Case C-340/89, Vlassopoulou

[6] Case C-238/98, Hocsman

[7] Directive 2005/36/EC of the European Parliament and the Council of 7 September on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22)