Sam Mccauley Chemists (Blackpool) Ltd & Mark Sajda v Pharmaceutical Society of Ireland; The Minister for Health and Children, Ireland; Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice McCracken
• Judgment Date: 31 July 2002
• Neutral Citation: [2002] IEHC 92
• Court: High Court
• Date: 31 July 2002

[2002] IEHC 92

THE HIGH COURT

No. 3648P/2001

SAM MCCAULEY CHEMISTS (BLACKPOOL) LTD & SAJDA v PHARMACEUTICAL SOCIETY OF IRELAND & ORS

BETWEEN

SAM McCAULEY CHEMISTS (BLACKPOOL) LIMITED AND MARK SAJDA

PLAINTIFFS

AND

PHARMACEUTICAL SOCIETY OF IRELAND, THE MINISTER FOR HEALTH

AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

PHARMACY ACT 1962 S2(1)(A)

EEC DIR 85/433

EUROPEAN COMMUNITIES (RECOGNITION OF QUALIFICATIONS IN PHARMACY) REGS 1991 SI 330/1991

CONSTITUTION ART 15.2

CONSTITUTION ART 15.2.1

CONSTITUTION ART 29.4.5

PHARMACY ACT 1962 S3(A)

TREATY OF ROME ART 40

TREATY OF ROME ART 47

TREATY OF ROME ART 47(1)

TREATY OF ROME ART 47(3)

EEC DIR 85/432

EEC DIR 85/433 ART 2

EEC DIR 85/433 ART 2.2

YOUNG v PHARMACEUTICAL SOCIETY OF IRELAND & ORS 1995 2 IR 91

EUROPEAN UNION COMMUNITIES ACT 1972 S3

EUROPEAN UNION COMMUNITIES ACT 1972 S2

MEAGHER v MIN FOR AGRICULTURE 1994 1 IR 329

MAHER v MIN FOR AGRICULTURE 2001 2 IR 139

CONSTITUTION ART 2.2

PHARMACY (IRL) ACT 1875

PHARMACY ACT 1962 S2

PHARMACY ACT 1962 S2(3)

CONSTITUTION ART 29.4.5

CONSTITUTIONAL LAW

EU Directive Challenge to validity - Statutory instrument implementing European directive - Whether statutory instrument unconstitutional - Whether statutory instrument embodied any decision of policy or exercise of any discretion involving a policy decision by Ireland - Whether implementation of European directive went beyond what was necessitated by obligations of membership of EU - Pharmacy Act, 1962 - European Communities (Recognition of Qualifications in Pharmacy) Regulations, 1991 330/1991 - Council Directive 85/433/EEC - Bunreacht na hÉireann 1937, articles 15.2, & 29.4 (2001/3648P - Mc Cracken J - 31/7/2002) Sam McCauley Chemists v Pharmaceutical Society of Ireland - [2008] 1 IR 16

Facts: The first plaintiff owned a pharmacy in Cork which commenced trading in 2000 and employed the second plaintiff, a UK qualified pharmacist, therein. The European Communities (Recognition of Qualifications in Pharmacy) Regulations, 1991 inserted a subsection 3A to section 2 of the Pharmacy Act, 1962 which provided that persons with foreign qualifications in pharmacy were not eligible to be the supervising persons in pharmacies which had been opened for less than three years. The regulations were made to implement Council Directive 85/433/EEC. Articles 15.2 and 29.4.7 of the Constitution provides that the Oireachtas is the only legislative body with power to make laws except for those laws which are necessitated by membership of the EU. The plaintiffs sought to have the 1991 Regulations declared invalid pursuant to Article 15.2 of the Constitution on the ground that the directive gave discretion to member states as to whether to give full recognition to foreign qualifications, or only to give limited recognition. Accordingly, they submitted, in implementing the directive, Ireland made a policy decision which went beyond mere implementation of EU policy and as such was not protected by Article 29.4.7 of the Constitution as being necessitated by membership of the EU.

Held by McCracken J in dismissing the plaintiff’s action that it was permissible to implement a European directive by way of regulation if the policy that was being implemented was the policy of the European Union and if the member state did not have to make any policy decisions. The 1991 regulation merely repeated what was in Council Directive 85/433/EEC and did not in any other way legislate or amend existing legislation. The only amendment which the regulation made to existing national legislation was to extend recognition of qualifications to the extent that it was required to do so under the directive. The only policy decision which could be said to have been made was one not to change the law any further than was required by the directive. If such a policy decision was made, that decision did not require the making of a law within the meaning of Article 15.2, and therefore that Article had no relevance. Accordingly as the only new law which was made or brought into effect by the regulation was law required by virtue of the policy decision of the Council of Ministers as set out in the directive, it was protected by Article 29.4.7 as being necessitated by the obligations of EU membership.

1 Mr. Justice McCracken delivered the 31st day of July, 2002.

2 The factual background to this case can be stated very shortly. The second named plaintiff is a Scottish national who is a qualified pharmacist in the United Kingdom, having graduated from the University of Aberdeen. The first named plaintiff is one of a group of companies owning a number of pharmacies throughout the country, and is the owner of a pharmacy at Blackpool Shopping Centre in Cork. This pharmacy only commenced business in October 2000. The second plaintiff was employed by the first plaintiff from August 2000, and participated in setting up the shop. Section 2(1)(a) of the Pharmacy Act 1962provides:-

" A person shall not keep open shop for the dispensing or compounding of medical prescriptions unless the person is an authorised person and the shop and the dispensing and compounding of medical prescriptions therein are personally supervised by the person or by an authorised person."

3 The first defendants, which is the regulatory authority for pharmaceutical chemists, has alleged that the second plaintiff is not eligible or qualified to be the supervising person in the first plaintiff's shop, or in any shop which has been opened for less than three years. This arises from the implementation of Council Directive No 85/433/EEC by means of the European Communities (Recognition of Qualifications in Pharmacy) Regulations 1991, being statutory instrument number 330 of 1991. The plaintiffs seek to have this statutory instrument declared invalid pursuant to Article 15.2 of the Constitution which provides:-

" 1. The sole and exclusive power of making laws for the state is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the state."

4 The defendants argue that the statutory instrument is valid by virtue of Article 29.4.5 of the Constitution, which provides:-

" No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities,"

5 The actual provision of the statutory instrument which it has sought to impugn is an amendment of the Pharmacy Act 1962contained in paragraph four of the instrument by inserting a subsection 3A to Section 2 of the 1962 Act in the following form:-

" In this Section the expressions "authorised person" and "registered pharmaceutical chemist" shall not include a person registered by virtue of Section 22A of the Pharmacy Act (Ireland) 1875 (38 and 39 Vict. c.57) acting in respect of a shop for the dispensing or compounding of medical prescriptions or for the sale of poisons where such shop has been in operation for less than three years."

6 Freedom of movement of workers has been one of the basic principles underpinning the European Union and Article 40 (formerly Article 49) ofthe Treaty establishing the European Community required the Council to issue directives or make regulations setting out the measures required to bring about freedom of movement for workers. As part of the general principle, the Treaty also contained provisions in Article 47 (formerly Article 57) relating to the common recognition of qualifications, the relevant portions of which are as follows:-

" 1. In order to make it easier for persons to take up and pursue activities as self employed persons, the Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications.

.....

3. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon co-ordination of the conditions for their exercise in the various member states."

7 Pursuant to these provisions, two council directives were issued on 16th September 1985. The first directive, number 85/432/EEC, set out minimum qualifications for pharmacists and the second directive, with which we are concerned, namely number 85/433/EEC, is expressed...