Regime under which ownership of pharmacies is restricted to pharmacists
Object of request for review the same as that of a request that was heard in the past
Right of ownership
Freedom of private economic initiative
Principle of equality
Freedom to exercise a profession
Limitation of fundamental rights
Principle of proportionality
RULING Nº 187/2001
2 of May of 2001
The freedom to choose one's occupation or type of work, which is enshrined in Article 47.1 of the Constitution, is a personal right - not just a guarantee or a basis of economic activity - which consists not only of the negative "right of defence" but also of a positive dimension in relation to the "right to work". Another aspect of the freedom to exercise an occupation is that it must be understood broadly in the sense that, while an occupation (such as that of pharmacist) may be exercised either on a self-employed basis or for an employer, and while both ways of exercising an occupation are important, the choice of one or the other way is itself protected as part of the right established in Article 47.1 of the Constitution.
If this view is taken of the occupation of pharmacist, characterising it as an independent profession (although this should not be incompatible with viewing pharmacists also as shopkeepers), the pharmacy premises consist essentially of the resources and assets, both material and non-material, which permit the establishment and exercise of that occupation - including the performance of quality and toxicity controls on products supplied, manual preparation and the lawful public sale of medicines. That a certain training and certain skills are required in order to be able to exercise the occupation is therefore no more than a professional safeguard. Legal restrictions, be they on access to pharmacy ownership or on the operation of a pharmacy as a business concern, are legitimate as restrictions laid down "in the public interest" or "inherent in the capacity" required of pharmacists.
Since in principle the legislative right to impose conditions on or restrict the exercise of the fundamental rights concerned is unquestionable, it follows that legal regulations conditioning or restricting access to a certain activity or occupation, or to private economic enterprise in a given field, are not unconstitutional unless they can in no way be justified by the specific terms of Articles 47.1 and 61.1 of the Constitution (the latter of which relates to private economic enterprise) or unless they exceed the general limits laid down in Articles 18.2 and 18.3 of the Constitution for legal measures restricting fundamental rights, freedoms and guarantees, namely:
- the requirement that restrictions be necessary and proportionate;
- the requirement that they be general, abstract and non-retroactive;
- the requirement that they respect the essential content of the constitutional principle establishing the right.
In the case at issue, there is no doubt that the restrictions challenged are general, abstract and non-retroactive. Further, it appears unlikely that the essential content of the freedoms referred to above is infringed by the placing of restrictions, in the form of qualification requirements, on the choice and exercise of the occupation of self-employed pharmacist and pharmacy owner. From the point of view of freedom to choose an occupation, then, it also needs to be ascertained whether the restrictions introduced by the legal rules in question can be deemed to be necessary and proportionate.
Today, the legal notion of proportionality, in the broad sense, severely limits the exercise of public authority, to the advantage of personal rights and freedoms. In various decisions, the Portuguese Constitutional Court, too, has already recognised and applied the principle of proportionality, frequently referring to it when examining criminal laws or laws of another kind which made rights subject to conditions or restrictions. As regards restrictions placed on rights, freedoms and guarantees, the proportionality requirement is inherent in Article 18.2 of the Constitution. Yet, as a general principle limiting the exercise of public authority, proportionality may be based upon the general principle of the rule of law. There need to be limits which take account of the relationship between public authorities' aims and measures. Legislators and government must adapt their proposals for action to their stated aims, rather than determine which measures they consider to serve no purpose or to be overly restrictive. Moreover, the principle of proportionality, in its broad sense, can be broken down analytically into three requirements linked to this relationship between measures and stated aims: the need to adapt the means to the ends, the requirement that the means be necessary or essential, and proportionality in the strict sense, implying a "just measure".
On consideration of the various aims which the legislator hopes to achieve by means of the regulations whereby pharmacy ownership is reserved for pharmacists and by making it impossible to regard a pharmacy separately from its technical management, it can be concluded that these regulations are neither inappropriate nor unhelpful to the pursuit of these aims. This is true, firstly, of the aims of pharmaceutical activities, since it can reasonably be deduced that these arrangements not only favour the aims of public health, the public interest and pharmacists' professional and ethical independence, but do so more specifically, comprehensively or easily than could any provisions allowing for pharmacies to be freely owned. It is obviously also true of aims which are directly linked to pharmacy ownership - such as the conscientious performance of duties, the owner's or manager's ethical obligations and responsibilities and keeping in check concentrations of ownership in the field of sale of pharmaceutical drugs.
Having examined the cited grounds, it can be concluded that the principles of indivisibility and of reserving ownership for pharmacists are not unreasonable. It can therefore be declared that these arrangements do not contravene the principle of proportionality (or "avoiding excess") - in particular when this principle is combined with the right to property or the freedom to exercise an occupation - as applicable even to restrictions on rights, freedoms and guarantees. Accordingly, as regards the legislator's stated aim of serving the public interest, these restrictions cannot be deemed to be inappropriate, unhelpful or disproportionate, and there is consequently no contravention of the principle of equality.
The ombudsman applied for two legislative provisions reserving ownership of pharmacies for pharmacists to be declared unconstitutional. The applicant argued, first, that the legal consequence of these provisions was to place restrictions on the right to private property, which is enshrined in Article 62.1 of the Constitution; and second, that reserving pharmacy ownership for pharmacists was an exclusive business privilege which could not be justified on grounds of public health, since the law, which stipulated that a pharmacy's technical management must be supervised by a pharmacist responsible for the preparation of pharmaceuticals and for the public sale or distribution of medicines or medicinal products, and established the principle of pharmacists' independence for practical purposes, already adequately guaranteed public health protection.
On examination of the purpose of the rules in question and the grounds given for the application, it can be concluded that the principal aim of the application was to obtain an examination of the constitutionality of the rule reserving ownership of pharmacies serving the public for individual pharmacists or to commercial partnerships of pharmacists. The other provisions contested were secondary, or were designed to allow for the hypothetical case where the legal restrictions suddenly lapsed, because a pharmacy was acquired by a non-pharmacist, with undesirable consequences. In addition, the fact that these rules predated the entry into force of the Constitution in no way affects this viewpoint since, according to the application, they were substantively unconstitutional.
The claims of unconstitutionality were therefore as follows:
1. restriction placed on the freedom to transfer property (in breach of Article 62 of the Constitution);
2. restriction placed on the right to private economic enterprise (in breach of Article 61 of the Constitution);
3. breach of the principle of equality (a breach of Article 13 of the Constitution);
4. restriction placed on the freedom to choose one's occupation (in breach of Article 47.1 of the Constitution);
5. breach of the principle of proportionality (a breach of Article 18.2 of the Constitution).
The judgment opened with a brief summary of the basis of Portuguese legal provisions in this area, mentioning their history and conformity with international standards. The tradition whereby pharmacy ownership is reserved for pharmacists and the indivisibility in principle of ownership and technical management have been established in the Portuguese legal system since at least the 1830s. Similarly, in other European countries where pharmacies can be privately owned, ownership is most frequently reserved for pharmacists (either directly or through a company). A notable exception is the "liberal" United Kingdom model, under which anyone (including the companies which operate leading chain stores) may acquire a pharmacy.
In the framework of this abstract ex post facto review, the judgment concluding that the legal provisions in question were not unconstitutional obtained ten votes in favour, with two against.
In Judgment no. 76/85 the Constitutional Court had previously examined the constitutionality of a number of the provisions in question in relation to property rights and freedom of private economic enterprise. In doing so, it had taken account of the principle of equality and the obligation to adhere to the rule of collective acquisition of the principal means of production and the principle of the elimination of monopolies and of excessively large estates. At the time of the first revision of the Constitution, this obligation had been incorporated into Article 290.f. In that previous judgment, the Constitutional Court had concluded, with three dissenting votes, that the rules in question were not unconstitutional, so none of them were declared unconstitutional.
The present application for a ruling of unconstitutionality raised the following issues: first, the constitutionality of the rules contested and, second, the constitutionality of the rules restricting the transfer of pharmacy operation and the gift of pharmacies (these rules are another consequence of the restrictions placed on pharmacy ownership in the provisions already considered).
The subject of this application, and the majority of the questions of constitutionality which it raised, therefore partially overlapped with the issues resolved in Judgment no. 76/85. Nonetheless, where a judgment has previously been delivered dismissing a claim of unconstitutionality, the court can again rule on the same subject, whether the judgment was given as part of an ex post facto or a preventive review. In this regard, there was nothing to prevent an examination of the legal rules claimed in the present case to be unconstitutional, although the court had already issued one ruling on their constitutionality.