Sam McCauley Chemists (Blackpool Ltd) and Mark Sajda v The Pharmaceutical Society of Ireland and Others

• Jurisdiction: Ireland
• Judgment Date: 31 July 2002
• Docket Number: [2001 No. 3648 P]
• Date: 31 July 2002
• Court: High Court

Sam McCauley Chemists v. Pharmaceutical Society of Ireland

Sam McCauley Chemists (Blackpool Limited) and Mark Sajda

Plaintiffs

and

The Pharmaceutical Society of Ireland, The Minister for Health and Children, Ireland and The Attorney General

Defendants

[2001 No. 3648 P]

High Court

Constitution - Legislation - Oireachtas - Exclusive function - Delegated legislation - Policy - Discretion - Whether implementation of European directive by statutory instrument necessitated by obligations of European Communities - Whether statutory instrument impermissible exercise of legislative function - Whether statutory instrument unconstitutional - European Communities (Recognition of Qualifications in Pharmacy) Regulations 1991 (S.I. No. 330), reg. 4 - Pharmacy Act (Ireland) 1875 (38 & 39 Vict., c. 57) - Pharmacy Act 1962 (No. 14), s. 2 - European Communities Act 1972 (No. 27) - Constitution of Ireland 1937, Articles 15.2 and 29.4.7ø - Council Directive 85/433/E.E.C. - Treaty of Rome, Article 47.

European Union - Directive providing for mutual recognition of qualifications in pharmacy - Exclusion in respect of pharmacies operating for less than three years - Statutory instrument - Policy - Discretion - Whether implementation by statutory instrument necessitated by obligations of membership of European Communities - Whether inclusion of three year exclusion constituted policy decision - Whether decision not to change law constituted policy decision - European Communities (Recognition of Qualifications in Pharmacy) Regulations 1991 (S.I. No. 330), reg. 4 - Pharmacy Act (Ireland) 1875 (38 & 39 Vict., c. 57) - Pharmacy Act 1962 (No. 14), s. 2 - European Communities Act 1972 (No. 27) - Constitution of Ireland 1937, Articles 15.2 and 29.4.7ø - Council Directive 85/433/E.E.C. - Treaty of Rome, Article 47.

Article 15.2 of the Constitution provides that no legislative authority other than the Oireachtas has power to make laws for the State. Article 29.4.7ø, however, protects measures taken by the State which are necessitated by the obligations of membership of the European Union or Communities. Section 3 of the European Communities Act 1972 permits Ministers to make regulations to give domestic effect to certain European legislation.

Prior to 1991, a person could not supervise a pharmacy without certain recognised national qualifications. Council Directive 85/433/E.E.C., however, obliged Ireland to recognise specified pharmacy qualifications from other member states, but did not require such recognition in the case of pharmacies in operation for less than three years. The second defendant transposed this requirement into Irish law by means of the European Communities (Recognition of Qualifications in Pharmacy) Regulations 1991, reg. 4 of which included the exception for pharmacies in operation for less than three years.

The plaintiffs sought to challenge the constitutionality of reg. 4 of the Regulations of 1991, which had the effect of preventing the second plaintiff, a Scottish national with a pharmacy qualification, from supervising the first plaintiff's pharmacy.

Held by the High Court (McCracken J.), in refusing the relief sought, 1, that the power to make statutory instruments under s. 3 of the European Communities Act 1972, was solely in relation to acts adopted by the European Union and for the purpose of ensuring that such acts had full effect in national law. Anything contained in a statutory instrument purporting to be made under that power which exceeded that authority would be ultra vires and, if it purported to add to or amend national legislation, would be void under Article 15.2 of the Constitution.

2. That it was permissible to implement a European directive by way of statutory instrument if the policy that was being implemented was the policy of the European Union and if the national authorities did not have to make any policy decisions.

Meagher v. Minister for Agriculture [1994] 1 I.R. 329and Maher v. Minister for Agriculture[2001] 2 I.R. 139 followed.

3. That the Regulations of 1991 merely amended the existing legislation to extend recognition of qualifications to the extent required by Directive 85/433/E.E.C. While it could, in a sense, be said that there was a policy decision not to extend the recognition of qualifications to new pharmacies, this was a decision not to change the law and, as such, did not require the making of a law within the meaning of Article 15.2 of the Constitution.

Cases mentioned in this report:-

Maher v. Minister for Agriculture [2001] 2 I.R. 139; [2001] 2 I.L.R.M. 481.

Meagher v. Minister for Agriculture [1994] 1 I.R. 329; [1994] 1 I.L.R.M. 1.

Young v. The Irish Pharmaceutical Society [1995] 2 I.R. 91; [1994] 2 I.L.R.M. 262.

Plenary summons

The facts have been summarised in the headnote and are more fully set out in the judgment of McCracken J., infra.

The proceedings were initiated by way of plenary summons issued on the 12th March, 2001. The matter was heard before the High Court (McCracken J.) on the 23rd, 24th and 25th July, 2002.

Cur. adv. vult.

McCracken J. 31st July, 2002

The factual background to this case can be stated very shortly. The second plaintiff is a Scottish national who is a qualified pharmacist in the United Kingdom, having graduated from the University of Aberdeen. The first plaintiff is one of a group of companies owning a number of pharmacies throughout the country, and is the...